ISLAMABAD:
Chief Justice Yahya Afridi has called a meeting of the Judicial Commission of Pakistan (JCP) on April 28 to consider the transfer of Supreme Court judges, a move that has drawn scrutiny from legal circles due to concerns over procedure and judicial independence.
Senator Ali Zafar, a member of the JCP, confirmed to The Express Pakinomist that he had been informed about the meeting but was yet to receive the agenda.
He strongly opposed the transfer of judges from one high court to another, saying there was no need for such a move.
It may be noted that both Ali Zafar and Gohar Ali Khan have not attended JCP meetings since the passage of the 27th constitutional amendment, though Ali Zafar is now expected to attend the upcoming session.
Sources said the names of some Islamabad High Court (IHC) judges are under consideration for transfer to other high courts. Prior to the 26th Amendment to the Constitution, a High Court judge 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 may now invite disciplinary action under Article 209.
After the 27th Amendment, the executive branch is considered to have a dominant role in the transfer and appointment of judges. Legal experts note 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 struck down if they infringe on judicial independence.
However, the superior courts have yet to review the 27th Amendment, while the 26th Amendment has not been examined by the Supreme Court either. Observers say it is still widely understood that the executive branch could not have secured such dominance without the help 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 discretion should be governed by clear rules. There is a strong perception among some quarters that judges who are not in the management’s good books may be targeted for transfer.
Lawyer Abdul Moiz Jaferii said the delay in itself was telling, stating: “All he wants to know is what took them so long. Considering that one of the main reasons for the 26th and 27th amendments was to check the independence of the Islamabad Supreme Court, it is surprising that we had to wait a year to see the final hand being played”.
“We will be told over the next week that this is all constitutional and that there is some intelligent design to the transfers that are being carried out, but no one really needs to say out loud that we know what is actually going on,” he added.
He further noted that the events needed to be documented, saying: “all that is left 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 malafide intent”.
The development comes in the wake of a March 2024 letter from six IHC judges to the Supreme Judicial Council seeking guidance on alleged interference by agencies in judicial functions.
Subsequently, the government introduced two constitutional amendments, after which, with what observers describe as relief from some judges, three judges from other high courts were transferred to the IHC.
Following these transfers, the government is perceived to have consolidated its position in 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 every Chief Justice seeks to appoint like-minded judges.
