ISLAMABAD:
Chief Justice Yahya Afridi convened a meeting of the Judicial Commission of Pakistan (JCP) on April 28 to review the transfer of High Court judges, a move that has attracted attention in legal circles amid concerns over procedure and judicial independence.
JCP member Senator Ali Zafar confirmed to The Express PK Press Club that he had been informed of the meeting but was yet to receive the agenda.
He strongly opposed the transfer of judges from one high court to another, saying such a move was not necessary at the moment.
It is worth noting that Ali Zafar and Gohar Ali Khan have not attended JCP meetings since the adoption of the 27th constitutional amendment, although Ali Zafar is now expected to attend the next session.
Sources said the names of some judges of the Islamabad High Court (IHC) are under consideration for transfer to other high courts. Before the 26th Constitutional Amendment, a judge of the 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 give rise to disciplinary proceedings under section 209.
Following the 27th Amendment, the executive is considered to have a dominant role in the transfer and appointment of judges. Legal experts note that the independence of the judiciary is an essential part of the Constitution and that even constitutional amendments can be struck down if they undermine judicial independence is an established principle.
However, the higher courts have yet to consider the 27th Amendment, while the 26th Amendment has also not been considered by the Supreme Court. Observers say it remains widely accepted that the executive could not have achieved such dominance without the facilitation of some members of the judiciary.
Senior lawyers have also raised questions about how the JCP can recommend transfers in the absence of formal rules, arguing that discretionary powers must be governed by clear regulations. There is a strong perception in some quarters that judges who are not in the good graces of the executive could be targets for transfer.
Lawyer Abdul Moiz Jaferii said the delay itself was telling, saying: “The only thing he wants to know is what took them 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 the final hand played out.”
“We will be told over the next week that this is all constitutional and that the transfers being made are intelligently designed, but no one really needs to say out loud that we know what is really going on,” he added.
He further noted that the events should be documented, saying, “all that remains for us to do is to record these events and ensure that they are not forgotten.” The pendulum will swing. When that happens, this house of cards will collapse under the weight of its own dishonest intent.”
These developments come against the backdrop of a March 2024 letter from six IHC judges to the Supreme Judicial Council seeking guidance on allegations of agency interference in judicial functions.
Subsequently, the government introduced two constitutional amendments, after which, with what observers describe as facilitation on the part of some judges, three judges from other higher courts were transferred to the IHC.
Following these transfers, the government is seen as having consolidated its position within the IHC. One of the transferred judges, Sardar Sarfraz Dogar, later became the chief justice of the court.
Some sections of the legal community also believe that each chief justice seeks to appoint like-minded judges.
