CJP raises alarm over judge transfers

Warns move may undermine judicial independence

ISLAMABAD:

Chief Justice of Pakistan Yahya Afridi has opposed the proposed transfer of five judges of the Islamabad High Court (IHC) to other high courts, cautioning that such a move could undermine judicial independence and set an undesirable precedent.

The development follows a proposal by IHC Chief Justice Sardar Sarfraz Dogar, who sought a meeting of the Judicial Commission of Pakistan (JCP) to consider the transfers.

While CJP Afridi declined the request to convene the meeting himself, the JCP secretary has nonetheless summoned a meeting on April 28 on the requisition of five commission members.

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.

It is learnt that JCP members are divided over 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 Tribune that a strong section within the government and the legal fraternity is opposing 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 moved to the Sindh High Court. These three judges were signatories to a "famous letter" written to the Supreme Judicial Council seeking guidance on alleged interference by agencies in judicial functions.

Since the tenure of former CJP Qazi Faez Isa, judges associated with that letter have reportedly faced pressure through various means.

Lawyers have also questioned why the name of Justice Sardar Ejaz Ishaq was not proposed for transfer, despite him being a signatory to the same letter. He, too, had not been in the good books of the executive or the IHC chief justice in the past.

Senator Ali Zafar told The Express Tribune that he would attend the upcoming JCP meeting and support CJP Afridi's stance on the matter. A senior lawyer said the opinion of bar representatives would be crucial in shaping the outcome of the meeting.

Commenting on the chief justice's position, the lawyer said Afridi has consistently sought to project himself as a defender of judicial independence, but his past actions tell a different story.

He referred to Afridi's support for the transfer of Justice Dogar from the LHC, and his decisive vote in favour of elevating Justice Aamer Farooq to the Supreme Court, a move that paved the way for Justice Dogar to become acting IHC chief justice.

The lawyer further argued that the weakening of the once independent Islamabad High Court did not occur by chance and held Afridi partly responsible. He also pointed to Afridi's earlier support for the transfer of three judges to the IHC, which the chief justice had described as a "milestone".

"Rejoice over what—the weakening of judicial independence?" the lawyer questioned, adding that history would judge whether Afridi strengthened or weakened the judiciary.

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 normalise the treatment of judges as interchangeable.

"Such an approach would carry serious implications for the institutional integrity of the judiciary, while also eroding public confidence in its independence and stability. More importantly, the proposed transfers, if allowed, would in substance assume a punitive character vis-à-vis the transferred Judges: an outcome that finds no sanction anywhere in the constitutional scheme governing the superior judiciary, is wholly alien to the purpose of Article 200 of the Constitution, and runs contrary to the foundational principles of judicial independence and security of tenure," says CJP Afridi.

He further noted that the requisition sought the transfer of Justice Soomro, who had already been moved from the Sindh High Court to the IHC in February 2025 under Article 200 to promote federalism and equitable representation.

"That being the stated rationale of his initial transfer, it is apparent that the present request is fundamentally inconsistent with the very purpose that informed the transfers to the IHC in February 2025."

CJP Afridi also warned that transferring Justice Soomro and Justice Saman Rafat Imtiaz back to the Sindh High Court would leave Sindh without representation on the IHC bench, contrary to constitutional principles and the Islamabad High Court Act, 2010.

He further observed that the transfer of five out of nine IHC judges without reciprocal transfers from other courts would create vacancies, lead to uncertainty, and erode public trust.

"Fourthly, it also bears noting that the present request for transfers is not accompanied by any articulated reasons or apparent institutional necessity that would strongly justify the same.

"In my considered view, where a request for transfer is unaccompanied by any articulated reasons or apparent institutional necessity, as in the present case, it assumes in its effect and consequence, a penal character resulting in the de facto removal of a Judge from office. Under the scheme of the Constitution, this approach cannot be sustained. The Constitution provides a specific and exhaustive mechanism for addressing matters that may warrant adverse consequences against a Judge, including removal from office under Article 209, through proceedings before the Supreme Judicial Council."

"A transfer which, by reason of its context, absence of justification, or penal character, operates as a removal from office cannot be insulated from this constitutional mandate merely by the label attached to it. To permit such a transfer would be to allow, in substance, what the Constitution expressly forbids in form: the displacement of a Judge from office through a route other than that mandated by Article 209. The proposed transfer, insofar as it carries a penal character and results in an effective removal, therefore stands in direct conflict with the exclusive constitutional mechanism governing judicial accountability." He added that if accountability was the underlying concern, it must be pursued 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 advanced indirectly through administrative measures that, in effect, operate as punishment without recourse to the constitutionally mandated process"