A CRITICAL ANALYSIS OF CONSTITUTIONAL OATH IN JUDICIAL TRANSFERS, AND JUDICIAL INDEPENDENCE

Abstract

Judicial Independence as a cornerstone of Constitutional Governance is enshrined in the Constitution of the Islamic Republic of Pakistan. In this context, articles 194 and 200 prescribe the oath and transfer of High Court judges respectively. The recent transfers of High Court judges in Pakistan, have created a lot of constitutional controversy as to whether or not a judge transferred to a transferee High Court can lawfully exercise jurisdiction without taking a fresh constitutional oath. This is not just a matter of procedure and technique but also concerns general matters of constitutional supremacy, institutional legitimacy, judicial independence and public trust in the courts.

This article explores the constitutional link between the judicial oath and judicial transfers, critically. It brings out the point that all the High Courts have independent constitutional identity and transfer to another High Court is a change in office in a constitutional entity. Therefore, exercising judicial authority in the transferee High Court requires as a constitutional precondition compliance with Article 194, which is achieved by a new oath. The article also argues that the lack of a constitutional formality harms constitutionalism sets a precedent for institutional convenience and risks judicial independence.

This study finally suggests that constitutional procedure is not subject to watering down when it comes to the question of judicial office based on the principles of constitutionality, jurisprudence, comparison of constitutional laws and international principles of judicial independence. The article suggests a step towards the legal and institutional changes that should ensure a faithful implementation of the Constitution, protect judicial independence, and restore people's confidence in the superior judiciary.