Yahya Afridi, Chief Justice of Pakistan. Photo: Supreme Court of Pakistan/File
ISLAMABAD:
Pakistan’s Chief Justice Yahya Afridi has opposed the proposed transfer of five judges of the Islamabad High Court (IHC) to other high courts, warning that such a move could undermine judicial independence and set an unwanted precedent.
The development follows a proposal by IHC Chief Justice Sardar Sarfraz Dogar, who called for a meeting of the Judicial Commission of Pakistan (JCP) to review the transfers.
If the CJP Afridi declined the request for a meeting himself, the secretary of the JCP nevertheless called a meeting on April 28 at the request of five members of the commission.
The IHC Chief Justice had proposed the transfer of Justice Mohsin Akhtar Kiani to the Lahore High Court (LHC), Justice Babar Sattar to the Peshawar High Court (PHC), Justice Arbab M Tahir to the Balochistan High Court (BHC), Justice Saman Rafat Imtiaz to the Sindh High Court (SHC) and Justice Khadim Hussain Soomro to the Sindh High Court.
JCP members are reportedly divided on the proposals, and it is unlikely that all five names will be approved. One member believes that three judges are likely to be transferred. Sources told The Express PK Press Club that a strong section within the government and legal community is opposed to the transfer of Justice Khadim Hussain Soomro and Justice Arbab Tahir.
However, there appears to be less resistance to the proposed transfer of Justice Kiani and Justice Babar Sattar, while Justice Saman Rafat Imtiaz may also be transferred to the Sindh High Court. These three judges were signatories to a “famous letter” written to the Supreme Judicial Council seeking advice on allegations of agency interference in judicial functions.
Since the tenure of former CJP Qazi Faez Isa, judges associated with this letter have reportedly been pressured through various means.
The lawyers also question why Justice Sardar Ejaz Ishaq’s name was not put forward for transfer, even though he was a signatory to the same letter. He too had not been in the good graces of the executive or the IHC chief justice in the past.
Senator Ali Zafar told The Express PK Press Club that he would attend the next JCP meeting and support CJP Afridi’s stand on the issue. A senior lawyer said the opinion of bar representatives would be crucial in determining the outcome of the meeting.
Commenting on the chief justice’s position, the lawyer said Afridi has always sought to portray himself as a defender of judicial independence, but his past actions tell a different story.
He spoke of Afridi’s support for Justice Dogar’s transfer from the LHC and his decisive vote in favor of elevating Justice Aamer Farooq to the Supreme Court, a move that paved the way for Justice Dogar to become Acting Chief Justice of the IHC.
The lawyer further argued that the weakening of the once-independent Islamabad High Court was no accident and held Afridi partly responsible. He also highlighted Afridi’s earlier support for the transfer of three judges to the IHC, which the chief justice called a “milestone”.
“What are you happy about: the weakening of judicial independence? » the lawyer questioned, adding that history would judge whether Afridi had strengthened or weakened the justice system.
Explaining his opposition, CJP Afridi said convening the JCP meeting within 15 days in such circumstances would be inappropriate, warning that allowing such transfers could normalize the treatment of judges as interchangeable.
“Such an approach would have serious implications for the institutional integrity of the judiciary, while eroding public confidence in its independence and stability. More importantly, the proposed transfers, if permitted, would in substance be punitive in nature with regard to the transferred judges: a result which finds no sanction in the constitutional system governing the higher judiciary, is entirely foreign to the purpose of Article 200 of the Constitution and runs counter to the fundamental principles of independence judicial and irremovability”, declares CJP Afridi.
He further noted that the requisition was for the transfer of Justice Soomro, who had already been transferred from the Sindh High Court to the IHC in February 2025 under Article 200 to promote federalism and equitable representation.
“That being the reason given for its initial transfer, it is clear that the present request is fundamentally inconsistent with the very purpose that motivated the transfers to the IHC in February 2025.”
CJP Afridi also warned that the transfer of Justices Soomro and Saman Rafat Imtiaz to the Sindh High Court would leave Sindh without representation in the IHC, contrary to constitutional principles and the Islamabad High Court Act, 2010.
It further observed that the transfer of five judges out of nine from the IHC without reciprocal transfers from other courts would create vacancies, lead to uncertainty and erode public confidence.
“Fourth, it should also be noted that the present request for transfers is not accompanied by any articulated reason or apparent institutional necessity that would strongly justify it.
“In my opinion, when a request for transfer is not accompanied by any articulated reason or an apparent institutional necessity, as in the present case, it has in its effect and its consequence a penal character leading to the de facto dismissal of a judge from his functions.
“A transfer which, due to its context, its lack of justification or its criminal character, operates as a revocation of his functions cannot be isolated from this constitutional mandate by the label attached to it alone. Authorizing such a transfer would amount to authorizing, in substance, what the Constitution expressly prohibits in form: the dismissal of a judge by a route other than that prescribed by article 209. The proposed transfer, insofar as it is of a penal nature and entails an effective revocation, is therefore in direct conflict with the exclusive constitutional mechanism governing judicial accountability. He added that if accountability was the underlying concern, it should be ensured strictly through constitutional mechanisms rather than administrative measures.
“Accountability, if that is the underlying concern, must be pursued strictly within the constitutional framework; it cannot be promoted indirectly through administrative measures which, in effect, function as punishment without recourse to the constitutionally mandated process.”
