Key Takeaways
- A writ petition has been filed in the Islamabad High Court challenging the Judicial Commission of Pakistan’s (JCP) transfer-only policy for IHC judges.
- The petition argues that the JCP’s decision lacks constitutional foundation and conflicts with Article 175A(8).
- The petitioner contends that the JCP’s decision was taken in disregard of the prescribed procedure and composition.
A writ petition has been filed in the Islamabad High Court challenging the Judicial Commission of Pakistan’s (JCP) April 28 decision that vacancies arising from the transfer of a judge ‘shall be filled through transfer only’. The petition, filed by Advocate Supreme Court Syed Nayyab Hassan Gardezi, argues that the three vacant judges’ seats in the IHC should be filled through fresh appointments under the Constitution rather than further transfers.
The petition contends that the JCP’s decision has no constitutional foundation and conflicts with Article 175A(8), which requires the commission to nominate one person ‘for each vacancy’ of a high court judge. The petitioner argues that the Constitution recognises no category of high court vacancy exempt from this requirement and that the commission cannot create one through a resolution.
According to the petition, the JCP decision was reportedly introduced during the proceedings rather than being included in the circulated agenda. The JCP Rules, as notified, contain no provision for their amendment, while the only provision allowing the commission to remove difficulties — Rule 15 — requires the votes of at least two-thirds of its total membership. The impugned decision, however, records only a ‘majority of its total membership’.
The petition also questions the composition of the JCP when the decision was taken. It argues that the impugned decision governs future appointments to the IHC, yet it was taken at meetings convened to consider transfers, at which the commission sat under the first proviso to Article 200(1), with the chief justices of the high courts concerned in each transfer. By contrast, the Constitution prescribes a distinct composition for the appointment of IHC judges under Article 175A(6).
The petitioner submits that procedural and compositional defects reinforce the need for the IHC’s three vacancies, created by the transfers notified on April 29, 2026, to be filled through the constitutional process of fresh appointments. For this purpose, nominations should be invited from members of the commission under Article 175A(23) and Rule 9(1) of the JCP Rules, rather than through a transfer-only route.
The petition also challenges the decision on grounds of discrimination, retrospectivity, and an unlawful fetter on discretion. It notes that in July 2026, the JCP filled vacancies in the Lahore High Court, Sindh High Court, and Balochistan High Court through initial appointments, while the IHC’s vacancies have been reserved for transfers.
The Islamabad High Court is currently functioning with a chief justice and nine judges against a full complement of 11. The petition highlights the need for a constitutional process to fill the vacancies, ensuring the rule of law and the proper functioning of the judiciary.
