The recent decision to transfer three judges from other high courts to the Islamabad High Court (IHC) has ignited a fierce legal and constitutional battle among lawyers and judicial experts in Pakistan. The transfer of Justice Sardar Muhammad Sarfraz Dogar from the Lahore High Court, Justice Khadim Hussain Soomro from the Sindh High Court, and Justice Muhammad Asif from the Balochistan High Court was formalized through a Gazette notification issued following the approval of President Asif Ali Zardari. The move has prompted widespread protests, with 80 percent of Islamabad High Court lawyers boycotting court proceedings in response to what they deem an affront to judicial independence and constitutional principles.
The legal fraternity’s outrage centers on alleged violations of judicial norms and the sanctity of the 26th Amendment, which was designed to ensure greater autonomy and efficiency within the judiciary. In a statement after the meeting of the Islamabad Bar Council, Islamabad District Bar Association, and the Islamabad High Court Bar Association, the legal fraternity announced the All Pakistan Lawyers Convention to be held on 3 Feb at the judicial complex in G-11 to formulate future strategy regarding the recent transfers. The Islamabad Bar Association asserted that the practice of appointing judges from other high courts undermines the legitimacy of the IHC and raises serious constitutional questions.
Earlier, five judges of the Islamabad High Court (IHC) wrote a letter to the Chief Justices of the Supreme Court and High Courts, urging them to oppose the reported appointment of a transferred judge to the IHC’s top position. The letter, signed by senior puisne judge Justice Mohsin Akhtar Kayani and Justices Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, and Saman Rafat Imtiaz, also included the names of Justices Arbab Muhammad Tahir and Miangul Hassan Aurangzeb, though they did not sign. The judges emphasized that Pakistan’s Constitution does not envision a unified federal judicial service and advised President Asif Ali Zardari against such transfers, arguing it undermines judicial independence and established norms. The letter reflects growing concerns over judicial appointments and their alignment with constitutional principles.
“This step undermines our institutional integrity and creates a perception of external influence,” a senior IHC judge was quoted as saying. The judges highlighted concerns that the transfers might create unnecessary friction within the judiciary and lead to jurisdictional disputes.
Legal experts have pointed out potential constitutional violations stemming from these transfers. Senior lawyer and constitutional expert Hamid Khan remarked that the move contravenes established judicial protocols and raises questions about judicial impartiality. “The Constitution envisages a stable and independent judiciary, and this decision threatens that foundation,” he said. Khan emphasized that the judiciary must be protected from political interference, warning that these transfers could set a dangerous precedent where judicial appointments are influenced by political considerations rather than merit and seniority.
On the political front, the government has defended its decision, with Law Minister Azam Nazeer Tarar asserting that the transfers were made in the best interest of the judiciary and aimed at enhancing the efficiency of the IHC. “The Islamabad High Court faces an immense workload, and bringing in experienced judges from other high courts will help expedite pending cases,” Tarar stated. He dismissed allegations of political interference, emphasizing that the decision was made following due process and with the approval of the President.
PPP leader and legal expert Aitzaz Ahsan, however, expressed skepticism about the government’s rationale. “This move not only disrupts the established order but also undermines public confidence in the judiciary’s independence,” Ahsan said. He stressed that the judiciary’s credibility hinges on its ability to function without political influence, and such transfers risk eroding that trust.
The controversy has also sparked debate within legal circles about the long-term implications for judicial appointments under the 26th Amendment. Legal analysts argue that while the amendment was intended to streamline judicial operations, its implementation has raised concerns about arbitrary transfers and appointments. Critics warn that the centralization of judicial appointments could lead to a concentration of power within the executive branch, undermining the constitutional principle of separation of powers.
Opposition leaders have cautioned against the hasty implementation of reforms without adequate consultation with stakeholders. PTI Gohar Ali Khan criticized the transfers, arguing that “any reform that compromises the judiciary’s independence is a step in the wrong direction.” Gohar called for a comprehensive review of the decision and urged the government to engage in dialogue with the legal fraternity to address their concerns.
The boycott of court proceedings by a significant majority of Islamabad High Court lawyers has already disrupted judicial operations and delayed hearings of critical cases. Legal analysts warn that prolonged protests could lead to a judicial crisis, further straining an already overburdened legal system. The protests also risk undermining public confidence in the judiciary’s ability to function independently and impartially.
Looking ahead, the legal battle over these judicial transfers is likely to have far-reaching implications for the judiciary’s independence and functioning. If the government’s decision is upheld, it may pave the way for similar transfers in the future, potentially compromising the autonomy of other high courts. Conversely, if the legal fraternity’s concerns are addressed, it could strengthen judicial independence and set a precedent for more transparent and merit-based judicial appointments.
In light of these developments, it is imperative for all stakeholders to engage in meaningful dialogue to find a solution that upholds the Constitution and ensures the judiciary’s independence. The judiciary serves as the guardian of citizens’ rights and freedoms, and any compromise on its autonomy threatens the very foundation of democracy in Pakistan.
The views expressed in this article are the author’s own and do not necessarily reflect Coverpage’s editorial stance.