Handicapped Judiciary – Nida Usman Chaudhary

I really don’t want to be the person that says, ‘I told you so!’ and yet here I am saying exactly that.

When the 26th and 27th amendments to the constitution were being passed in 2024 and 2025 respectively, many of us forewarned about the shift being brought in the design of the higher judiciary. That design was flawed in essence and in principle and no amount of historical hangover of questionable decisions in individual cases should have been a justifiable argument for pushing for the eventual scheme that resulted.

Nevertheless, out of nowhere, ghosts of bad precedents were resurrected with a lot of dramatic chest-thumping by parliamentarians to make a case against the independence and credibility of the judiciary, often to the extent of borrowing arguments like ‘parliamentary sovereignty’ and a separate ‘constitutional court’, completely out of context and meaning, from foreign jurisdictions, without due regard to our legal system, basic structure and social contract. Care didn’t even seem to be had about what these terms and forums meant in the jurisdictions from where they were borrowed.

The optics of labels could be said to be quite disingenuous. What was sold in name of ‘parliamentary sovereignty’ and ‘federal constitutional court’ was certainly not what the charter of democracy nor what the foreign jurisdictions in which these forums exist, seemed to have envisaged. It was a completely new structure being designed that had no pillars of its own to stand on; but it was sold on basis of familiar labels that captured the imagination of the people and may have prevented them from seeing beyond the titles. And when all else failed, the jack of all argument – of backlog of cases, was raised as a final appeal to the people of this country to justify what was to come.

So thick was the fog that was created that even today many people may not be able to see clearly the trajectory at which we have allowed our freedoms, our rights and our institutions to be brought at. I understand that judiciary may not have been entirely kosher in the past and that there were many areas where reform was desired but never have we had judiciary as an institution that has been in such a handicap and that too, via parliament as a vehicle that purposefully crashed into the sacred separation of powers that the state owes to its people more than it does to its own pillars.

The recent transfers of the high court judges from Islamabad High Court are a striking example of this handicap. One that was completely foreseeable and perhaps, one that may even have been foreshadowed and forewarned as well. It does not come as a surprise at all. Some people may even argue the validity and the legality of these transfers based on the amendments, even though the constitutionality of the amendments and the question of extent of parliamentary sovereignty in our country, where there is a written constitution, is itself up for debate at this point. The point I want to lay stress on is that legality is not a measure for principles especially when formal and substantive legality are both tainted and remain unaddressed and unresolved.

The vast powers that executive and legislative branches of the state exert over their judicial counterpart because of the amendments have effectively removed even the semblance of judicial protections that people could have had because the judiciary is so vulnerable to the other two branches. It is but a tool if not a toy in the hands of the executive and the legislative branches when in fact it should have been a watchdog over them.

In a normal healthy constitutional democracy, judges of the higher courts are not subordinate to the executive or the parliament. They hold judicial offices under the constitution of the land, and they are guaranteed judicial independence within the constitution itself so that they can discharge their natural function of adjudicating disputes with fairness among parties without prejudice, fear or fervour, especially where one of the parties to a case is the government. They also hold the power of judicial review to ensure executive action does not transgress the scope of their powers. Their appointments, transfers and their removal from office, therefore, is a very serious matter that goes to the heart of ensuring this independence and cannot be reduced to an office that is subordinate to the government.

This contrasts with the role and status of the district judiciary, which is part of civil service as opposed to a constitutional role that higher courts play. They cannot be clubbed together in the same stride, nor can they be treated in the same way. Prior to the amendments, the transfer of higher court judges was possible but not without their consent. Post the amendments, the consent is no longer needed and failure to comply can result in removal of a judge in ways that disrupt the security of tenure needed for judicial independence to work in practice.

As Shan Ali Qambrani states in his analysis on Linkedin, “Justice Yahya Afridi’s order itself dictates, such transfers would establish an undesirable precedent by treating Judges as administratively interchangeable, thereby undermining judicial independence, institutional integrity and public confidence in the judiciary. It has been observed that the proposed transfers, in substance, carry a punitive character, which finds no sanction under the constitutional framework, particularly under Article 200 of the Constitution of Pakistan. The order emphasizes that judicial transfers cannot be used as a substitute for accountability mechanisms prescribed under Article 209 of the Constitution of Pakistan.

The Chief Justice further noted that, “the proposed transfers are inconsistent with the earlier rationale of promoting federalism and equitable representation within the IHC. Transferring Judges belonging to Sindh would eliminate provincial representation in the IHC, contrary to statutory and constitutional principles. The transfer of five out of nine Judges would create institutional instability and vacancies, affecting judicial functioning. No cogent reasons or institutional necessity have been provided, rendering the request constitutionally untenable.

The order categorically states that any action which effectively results in the removal of a Judge, even indirectly, must strictly adhere to the mechanism provided under Article 209 and cannot be achieved through administrative transfers.

Accordingly, declined the request made by Justice Sardar Muhammad Sarfraz Dogar to convene a meeting of the Judicial Commission of Pakistan for the transfer of five Judges of the Islamabad High Court. However, under Article 175-A(22) of the Constitution of Pakistan, the Secretary of the Commission may still convene a meeting if the requisition is supported by the requisite majority and the reasons recorded by the Chief Justice shall be circulated among members.”

The press release that has been issued by the Judicial Commission of Pakistan (JCP) offers no reason for why these transfers were required but it does say that the vacancies left by these transfers shall be filled with by transfers and not be considered vacancies for initial or fresh appointments. This indicates an internal shuffling that has left Islamabad High Court without any female judge for now.

By destabilising the foundation of the pillar of judicial independence from executive and parliamentary interference, the representatives of the public have taken more away from the people than they have from the institution that they have rendered redundant, futile and which they have cut to size. It was not a fight between themselves alone but rather one, the spillover of which has impaired people’s access to justice for their rights. They have nowhere to go.

While these judges have not been removed yet, and are likely to continue serving as judges in the courts where they have been transferred (unless they resign or are removed for declining the transfer), the fact that such transfers can now be mandated by law and exercised through a body where members of executive and legislative branches are majority in number i.e. the JCP, it surely does add to the perception of vulnerability of higher judiciary at the hands of the executive and raises critical questions about their security of tenure and independence.

An ordinary litigant would be forced to think, if judges can be transferred that conveniently, what is the fate of the cases they are to bring before them? How easy would it be for a new judge to be brought in their place, especially when a citizen is up against the executive? These are the kind of questions that rise when judicial independence perception takes a hit. This is the trajectory in which the amendments have put our judiciary as an institution in and for these reasons it is clearly not sustainable. Something has got to give or else ultimately the biggest loss is of the people of this country who literally have no where to go for justice anymore.

My concern is, how does one even work towards making judiciary a viable pathway for anyone in these circumstances? Redundant, futile, cut to size. Where do we go from here and how?

The writer holds LL.B (Hons) and LL.M in Law and Development from UK. She is a diveristy and inclusion advocate. She can be reached at nida@learnpak.com.pk.

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