ISLAMABAD:
Chief Justice Yahya Afridi called a meeting of the Judicial Commission of Pakistan (JCP) on April 28 to consider transferring high court judges, a move that has drawn scrutiny from legal circles amid concerns over judicial independence and procedure.
Senator Ali Zafar, a JCP member, confirmed to The Express PAkGazette that he had been informed of the meeting but had not yet received the agenda.
He strongly opposed the transfer of judges from one high court to another, saying there was no current need for such a move.
It should be noted that both Ali Zafar and Gohar Ali Khan have not attended JCP meetings since the passing of the 27th constitutional amendment, although Ali Zafar is now expected to attend the next session.
Sources said names of some Islamabad High Court (IHC) judges are being considered for transfer to other high courts. Before the 26th constitutional amendment, a judge of a high court could not be transferred without consent under Article 200 of the Constitution.
The consent requirement has since been removed, and refusal to accept a transfer can now lead to disciplinary proceedings under section 209.
Following the 27th Amendment, the executive is seen as having a dominant role in the transfer and appointment of judges. Legal experts point out that the independence of the judiciary is a salient feature of the Constitution, and it is an established principle that even constitutional amendments can be nullified if they violate judicial independence.
However, higher courts have yet to review the 27th Amendment, while the 26th Amendment has also not been reviewed by the Supreme Court. Observers say it is still widely understood that the executive could not have secured such dominance without the help of some members of the judiciary.
Senior lawyers have also raised questions about how the PCJ can recommend transfers in the absence of formal rules, arguing that discretionary powers should be governed by clear regulations. There is a strong perception among some quarters that judges who do not have the good reputation of the executive may be subject to transfer.
Lawyer Abdul Moiz Jaferii said the delay itself was telling, saying: “The only thing you want to know is why it took so long. Given that one of the main reasons for the 26th and 27th amendments was to check the independence of the Islamabad High Court, it is surprising that we had to wait a year to see how the last hand was played.”
“Over the next week we will be told that this is all constitutional and that there is some intelligent design in the transfers that are taking place, but no one needs to say out loud that we know what is really happening,” he added.
He further noted that the events should be documented, saying that “all that is left for us to do is record these events and ensure that they are not forgotten. The pendulum will swing. When it does, this house of cards will collapse under the weight of its own bad faith intent.”
The developments come against the backdrop of a March 2024 letter sent by six IHC judges to the Supreme Judicial Council seeking guidance on alleged agency interference in judicial functions.
The government subsequently introduced two constitutional amendments, following which, with what observers describe as facilitation by some judges, three judges from other high courts were transferred to the IHC.
After these transfers, it is perceived that the government has consolidated its position in the IHC. One of the transferred judges, Sardar Sarfraz Dogar, later became president of the court.
Some sections of the legal community also believe that each chief justice seeks to appoint like-minded judges.
