A letter circulating from the Islamabad High Court (IHC) on Friday reveals a growing controversy within Pakistan’s judicial community. Written by five sitting IHC judges – Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Sardar Ejaz Ishaq Khan, Justice Babar Sattar, and Justice Saman Rafat Imtiaz – the letter expresses serious concerns over proposed judicial transfers. Specifically, the judges are opposed to the potential permanent transfer of judges from the Lahore High Court (LHC) and Sindh High Court (SHC) to the IHC.
Core Concerns and Constitutional Implications
The five-page letter, addressed to Chief Justice of Pakistan Yahya Afridi and other prominent judicial figures, argues that such transfers would undermine the independence of the judiciary. The judges contend that the action would violate the spirit of Pakistan’s Constitution, particularly Article 200, which governs the transfer of judges between courts.
The letter asserts that the transfer of a judge to the IHC with the intention of making them the next Chief Justice would be, in effect, a “fraud on the Constitution.” This move, they warn, could set a dangerous precedent, eroding judicial independence and introducing executive influence into court appointments.
Judicial Independence Under Threat
The letter emphasizes that the transfer of judges between high courts is not only a rare occurrence but also one that should be handled with utmost caution. Since the passage of the 18th Amendment in 2010, there has been no precedent for permanent transfers across high courts. This amendment reinforced the autonomy of each high court in Pakistan, making the proposed transfers appear out of step with the Constitution.
Legal experts, including former Additional Attorney General Waqar Rana, argue that the proposed move would be unconstitutional. Rana warns that such actions might constitute an attempt to undermine the rule of law, a point that has gained significant traction with the legal community.
What’s at Stake?
The controversy has also brought attention to the broader issue of “court packing” — the allegation that the executive is manipulating judicial appointments to secure judges who align with the government’s interests. Critics fear that these transfers are part of a concerted effort to install a chief justice in the IHC who is more favorable to the executive branch.
Furthermore, the letter stresses that the appointments of judges to high courts are governed by specific constitutional rules. According to Article 175A, seniority plays a crucial role in the selection of a Chief Justice, and any attempt to bypass this process could destabilize the judiciary. If a lower-seniority judge from one high court is transferred to another, it could upset the balance and fairness of the court’s leadership structure.
The Legal Path Forward
For the transfer to take place legally, the Constitution mandates that the President consults with both the Chief Justice of Pakistan and the Chief Justices of the relevant high courts. This ensures that the transfer serves the public interest, rather than political or personal agendas. As of now, the proposed transfer does not meet the criteria outlined in the Constitution, leading legal experts to predict a legal challenge if it moves forward.
Wider Implications for Judicial Integrity
The potential reshuffling of judges raises critical questions about the judiciary’s autonomy and the preservation of its role as an independent branch of government. Legal experts argue that tampering with the judicial structure to favor particular political interests would have far-reaching consequences, both for public trust in the judiciary and for the effectiveness of the legal system.
The judicial community, including prominent lawyers and advocates like Chaudhry Faisal Hussain, has voiced strong opposition to what they view as an attempt to manipulate judicial appointments. Lawyers across the country have made it clear that they will resist any efforts to erode the independence of the judiciary.
Conclusion
The issue of judge transfers is emblematic of a broader struggle within Pakistan between the judiciary and the executive. With reports of ongoing interference in judicial affairs, especially following the controversial 26th Amendment, the role of the judiciary is more under scrutiny than ever before.
As the situation unfolds, it remains to be seen whether the judiciary will stand firm in its defense of constitutional principles or whether the proposed judicial reshuffles will take place, potentially changing the judicial landscape of Pakistan forever.
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