Judge warns against 'arbitrary transfers'
Justice Babar Sattar, who has been transferred from the Islamabad High Court to the Peshawar High Court, has warned that the transfer of judges would have a chilling effect on the remaining vestiges of independence within judiciary.
Before a meeting of the Judicial Commission of Pakistan (JCP) regarding the transfer of IHC judges, Justice Sattar wrote a letter to the commission requesting for giving him right of hearing before approval of his transfer. However, his request was not entertained by the commission.
It is learnt that Justice Sattar, in his letter, had warned the JCP that how the transfer would be harmful for the judicial independence.
He also said that the weaponisation of judicial transfers will promote a culture of impunity within the judiciary, where chicanery and mediocrity will thrive.
Justice Sattar said that amendments in articles 200 and 209 are designed as a weapon to whip judges into submission.
He warned that now judges could be threatened with transfer to others locations and in case of their refusal to accept the transfer, they would face penal consequences.
According to Justice Sattar, even General Ziaul Haq's regime did not prescribe such method of judges transfer.
He said that the decision to transfer by the ruling regime would set a dangerous precedent and transform the judiciary into an actor that could be seen as one facilitating a repressive kleptocracy.
He also said that judicial history is rife with unflattering accounts of complicit judges who, driven by vile ambition, employed the doctrine of necessity to play second fiddle to praetorians.
It is not that in times when authoritarianism expanded and enforcement of fundamental rights contracted, the judges at the helm were unable to tell right from wrong.
He said that the weaponization of judicial transfers will promote a culture of impunity within the judiciary, where chicanery and mediocity will thrive and it will become impossible to attract and retain useful human resource within the judiciary essential for sustaining a rule of law based justice system"
Justice Sattar said that his concerns are weaponization of judicial transfers is not for personal aggrandizement. The scheme being proposed will create an inherent conflict for judges who are required by the Constitution to swear an oath to dispense justice "without fear or favor, affection or ill-will". Judges are human. With the sword of Democles hanging over, the safe choice for them will not be to do the right thing, but the thing they are being asked to do by whoever wields the most power.
Justice Sattar agreed with CJP Yahya Afridi reasons against judges transfer. He also said that it appears that the proposed transfers are based on mala fide considerations.
He also referred to the six IHC judges' letter written to Supreme Judicial Council seeking guidance on the interference of agencies in judicial functions.
"There has also been commentary that the Six-Judges Letter remains an unforgivable sin that will need to be atoned. One of the six IHC judges has since been removed from office by two of his peers at IHC in an unprecedented exercise of quo warranto powers bypassing the SJC. Four of the remaining judges are now proposed to be transferred out of IHC."
Justice Sattar however said that given the prevailing ethos and culture at IHC, the transfer may be a blessing in disguise for him. But the question of transfers and the considerations informing them will have pernicious institutional effects on the judiciary.
Security of tenure of judges is recognized across the civilized world as a sine qua non of judicial independence. If judges can be shunted to and fro on the whims of an incumbent regime, the judicial organ cannot pretend to be an independent pillar of the state. And if the judiciary is not independent enough to enforce the Constitution, uphold rule of law and act as a check on abuse of executive authority, it loses its utility altogether.
Justice Sattar, however, said he would be bound by whatever decision is rendered by the JCP.