CJ summons JCP meeting on judges' transfer

Legal concerns mount over process, independence

ISLAMABAD:

Chief Justice Yahya Afridi has convened a meeting of the Judicial Commission of Pakistan (JCP) on April 28 to consider the transfer of high court judges, a move that has drawn scrutiny from legal circles amid concerns over procedure and judicial independence.

Senator Ali Zafar, a member of the JCP, confirmed to The Express Tribune that he had been informed of the meeting but had yet to receive the agenda.

He strongly opposed the transfer of judges from one high court to another, saying there was no present 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, although 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 constitutional amendment, a high court judge could not be transferred without consent under Article 200 of the Constitution.

The requirement for consent has since been removed, and refusal to accept a transfer may now invite disciplinary proceedings under Article 209.

Following the 27th Amendment, the executive is seen as having 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 violate judicial independence.

However, the superior courts have yet to review the 27th Amendment, while the 26th Amendment has also not been examined by the Supreme Court. Observers say it remains widely understood that the executive could not have secured such dominance without the facilitation of some members within the judiciary.

Senior lawyers have also raised questions over 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 among some quarters that judges not in the good books of the executive may be targeted for transfer.

Advocate Abdul Moiz Jaferii said that the delay itself was telling, stating, "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 control the independence of the Islamabad High Court, it is surprising that we had to wait a year to see the last hand being played".

"We will be told over the course of the next week that this is all constitutional and there is some intelligent design to the transfers that are being effected, but no one really needs to say out loud that we know what's actually going on," he added.

He further remarked that the events should be documented, saying, "all that remains for us to do is to record these events and ensure they are not forgotten. The pendulum will swing. When it does, this house of cards will collapse under the weight of its own malafide intent".

The developments come against the backdrop of a March 2024 letter by six IHC judges to the Supreme Judicial Council seeking guidance over alleged interference by agencies in judicial functions.

Subsequently, the government introduced two constitutional amendments, after which, with what observers describe as facilitation by 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.