Justice Sattar says amendments to Articles 200 and 209 are designed as a weapon to force judges to submit
ISLAMABAD:
Justice Babar Sattar, who was transferred from the Islamabad High Court to the Peshawar High Court, warned that the transfer of judges would have a chilling effect on the remaining vestiges of the independence of the judiciary.
Ahead of a meeting of the Judicial Commission of Pakistan (JCP) regarding the transfer of IHC judges, Justice Sattar wrote a letter to the commission requesting to grant him the right to be heard before approving his transfer. However, his request was not taken into account by the commission.
It is learned that Justice Sattar, in his letter, had warned the JCP that the transfer would be detrimental to judicial independence.
He also said the militarization of judicial transfers would foster a culture of impunity within the justice system, where chicanery and mediocrity would flourish.
Justice Sattar said the amendments to Articles 200 and 209 are designed as a weapon to force judges to submit.
He warned that judges could now be threatened with transfer to other locations and that 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 transfer of judges.
He said the ruling regime’s transfer decision would set a dangerous precedent and transform the judiciary into one that could be seen as a facilitator of a repressive kleptocracy.
He also said that judicial history is replete with unflattering accounts of complicit judges who, driven by vile ambition, used the doctrine of necessity to play second fiddle to the praetorians.
It is not that in an era when authoritarianism was spreading and the application of fundamental rights was diminishing, the judges in power were incapable of distinguishing right from wrong.
He said the militarization of judicial transfers will foster a culture of impunity within the justice system, where chicanery and mediocrity will flourish and it will become impossible to attract and retain useful human resources within the justice system, essential to maintaining a justice system based on the rule of law.
Justice Sattar said his concerns are that the weaponization of judicial transfers is not for personal aggrandizement. The proposed bill will create an inherent conflict for judges who are constitutionally required to take an oath to administer justice “without fear or favor, affection or ill will.” Judges are human. With the sword of Democles hanging, the safest choice for them will not be to do the right thing, but the one they are asked to do by the one with the most power.
Justice Sattar agreed with CJP Yahya Afridi’s reasons against the transfer of judges. He also said it appears the proposed transfers are based on bad faith considerations.
He also referred to the six IHC judges’ letter to the Supreme Judicial Council seeking guidance on agency interference in judicial functions.
“There have also been comments that the six justices’ letter 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 IHC peers in an unprecedented exercise of quo warranto powers circumventing the SJC. It is now proposed that four of the remaining judges be transferred out of the IHC.”
Justice Sattar, however, said that given the prevailing philosophy and culture at the IHC, the transfer could be a blessing in disguise for him. But the issue of transfers and the considerations underlying them will have pernicious institutional effects on the justice system.
The irremovability of judges is recognized in the civilized world as a sine qua non condition of judicial independence. If judges can be moved according to the whims of the regime in place, the judicial body cannot claim to be an independent pillar of the State. And if the judiciary is not sufficiently independent to uphold the Constitution, uphold the rule of law, and check abuses of executive power, it completely loses its usefulness.
Justice Sattar, however, said he would be bound by any decision made by the JCP.
