Justice Sattar says the amendments to Articles 200 and 209 are designed as a weapon to subdue judges.
ISLAMABAD:
Justice Babar Sattar, who has been transferred from the Islamabad High Court to the Peshawar High Court, has warned that the transfer of judges would have a chilling effect on the remaining vestiges of independence within the judiciary.
Ahead of a meeting of the Judicial Commission of Pakistan (JCP) on the transfer of IHC judges, Justice Sattar wrote a letter to the commission requesting that he be granted the right of hearing before approving their transfer. However, his request was not considered by the commission.
It was learned that Justice Sattar, in his letter, had warned the PCJ that the transfer would be detrimental to judicial independence.
He also said that weaponizing judicial transfers will promote a culture of impunity within the judiciary, where chicanery and mediocrity will thrive.
Justice Sattar said the amendments to Articles 200 and 209 are designed as a weapon to subdue judges.
He warned that judges could now be threatened with transfer to other places and, if they refused to accept the transfer, they would face criminal consequences.
According to Justice Sattar, even General Ziaul Haq’s regime did not prescribe such a method of transferring judges.
He said the transfer decision by the ruling regime would set a dangerous precedent and transform the judiciary into an actor that could be seen as facilitating a repressive kleptocracy.
He also said that judicial history is littered with unflattering accounts of complicit judges who, driven by base ambition, employed the doctrine of necessity to play second fiddle to the Praetorians.
It is not that in times when authoritarianism was expanding and the observance of fundamental rights was contracting, the judges in charge were incapable of distinguishing right from wrong.
He said that the weaponization of judicial transfers will promote a culture of impunity within the judiciary, where trickery and mediocrity will flourish and it will be impossible to attract and retain useful human resources within the judiciary, essential to sustain a justice system based on the rule of law.”
Justice Sattar said he is concerned that the use of judicial transfers as a weapon is not for personal aggrandizement. The proposed plan will create an inherent conflict for judges who are required by the Constitution to take an oath to dispense justice “without fear or favor, affection or ill will.” Judges are human. With the sword of Democles on their shoulders, the safe option for them will not be to do what is right, but what is asked of them by whoever wields the greatest power.
Justice Sattar agreed with CJP Yahya Afridi’s reasons against the transfer of the judges. He also said it appears the proposed transfers are based on bad faith considerations.
He also referred to the letter by six IHC judges written to the Supreme Judicial Council seeking guidance on agency interference in judicial functions.
“There have also been comments that the Six Judges Charter remains an unforgivable sin that will need to be atoned for. One of the six IHC judges has since been removed from office by two of his peers at the IHC in an unprecedented exercise of quo warranto powers bypassing the SJC. Four of the remaining judges are now proposed to be transferred out of the IHC.”
However, Justice Sattar said given the prevailing ethos and culture at IHC, the transfer may be a blessing in disguise for him. But the issue of transfers and the considerations behind them will have pernicious institutional effects on the judiciary.
Security of tenure of judges is recognized throughout the civilized world as a sine qua non of judicial independence. If judges can be shunted this way and that by the whims of a regime in power, the judicial body cannot claim to be an independent pillar of the State. And if the judiciary is not independent enough to enforce the Constitution, defend the rule of law, and act as a check on abuse of executive authority, it loses its usefulness entirely.
Justice Sattar, however, said he would be bound by whatever decision the PCJ makes.
