1
THE removal of the requirement of the consent of individual judges for their transfer from one high court to another is one of the most significant changes brought by the 27th Amendment to the Constitution.
The process of judicial transfers before the amendment was already arbitrary and open to misuse. However, after the removal of the consent requirement and making judges who refuse transfer liable for misconduct proceedings, the provision for transfer now squarely undermines the independence of the judiciary.
The 27th Amendment fundamentally alters Article 200 of the Constitution of Pakistan, 1973. It gives the Judicial Commission of Pakistan — the body responsible for judicial appointments — the power to recommend to the president the transfer a judge from one high court to another and determine the terms and conditions for such a transfer.
The amendment does not provide for any basis on which the JCP will decide whether judges should be transferred and there is no requirement to establish a mechanism with clearly defined criteria and objectives to guide recommendations for transfer.
If judges do not accept, within 30 days, they shall be subject to disciplinary proceedings under Article 209 by the Supreme Judicial Council, a judicial body responsible for inquiring into misconduct. Until the SJC makes a decision on whether the judge’s refusal is misconduct or not, the judge is barred from performing their functions and is effectively suspended.
The provisions for judges’ transfer are inconsistent with international standards.
Provisions for the transfer of judges can be found in all three of Pakistan’s constitutions. Article 172 of the 1956 constitution; Article 99 of the 1962 constitution, and Article 200 of the 1973 Constitution all gave the president the power to transfer judges from one high court to another in consultation with chief justice of Pakistan and the chief justices of the high courts to and from which the transfer was being made. Notably, in their original form, they all required the consent of judges to be transferred.
Article 200 of the 1973 Constitution was amended multiple times since the Constitution was adopted. The Constitution (Fifth Amendment) Act, 1976, passed during Zulfikar Ali Bhutto’s time, removed the requirement of consent or consultation with the chief justice of the high courts for transfers not exceeding one year at a time. Gen Ziaul Haq’s President’s Order No. 14 of 1985 increased the duration for which judges could be transferred without consent or consultation with chief justices of high courts to two years, and shortly afterwards, President’s Order No. 24 of 1985, provided that a judge of a high court who does not accept transfer to another high court “shall be deemed to have retired from his office”.
Through the 18th Amendment, passed in 2010 with the objective of restoring the Constitution to its original form, the requirement of consent and consultation with the chief justices of the concerned high courts were brought back for all transfers, and the punitive provision of “deemed resignation” upon refusing transfer was removed.
The government has failed to provide convincing reasons for removing the requirement of consent for judicial transfers in the 27th Amendment. In one television interview, the law minister stated that transfer was a means of ending corrupt practices of the high court judges, as some of them have “opened shop” at their respective courts. This is alarming, as it shows that, instead of proceeding against such judges in the SJC for alleged misconduct, as required by Article 209, transfers are being considered a means of circumventing the constitutional accountability mechanism.
The transfer provisions are also inconsistent with international standards on the independence of the judiciary in relation to conditions of tenure. The UN Basic Principles provide that “the term of office of judges, their independence, security … conditions of service, shall be adequately secured by law”. The ‘Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct’ also call for judges’ consent for transfer, except if the transfer is pursuant to a system of regular rotation provided by law or formulated after due consideration by the judiciary. The Beijing Statement of Principles on the independence of the judiciary also establish that judges must have security of tenure and that “a judge’s tenure must not be altered to the disadvantage of the judge during his or her term of office”.
Arbitrary transfers violate the principle that security of tenure must be ensured and conditions of service remain unaltered. The transfer of judges outside their home provinces, especially to remote areas, can carry a punitive impact and have adverse consequences for their work and lives and amount to a change in the terms of office.
The UN Special Rapporteur on the independence of judges and lawyers in his 2020 report has described transfers as one of the most frequent kinds of disguised sanctions, which are often used in order to “prevent a judge from adjudicating on a particular case or to punish and marginalise a judge regarded as too independent or unsympathetic to the government’s interests”.
The perception that transfers are being used as disguised sanction threatens independent discharge of judicial functions, as all high court judges would know that decisions that are viewed as unfavourable could expose them to an adverse transfer, and if they refuse, they will have to face disciplinary proceedings that may lead to their removal.
The provision on the transfer of judges is all the more alarming when seen together with the other sweeping changes made to the judicial system in the 27th Amendment. Together, they indicate a rapid erosion of judicial independence and dismantling of the rule of law in the country.
The writer is a legal adviser for the International Commission of Jurists.
X: @reema_omer
Published in Dawn, November 15th, 2025
