EDITORIAL: The transfer of Lahore High Court’s Justice Sarfraz Dogar, Sindh High Court’s Justice Khadim Hussain Soomro and Balochistan High Court’s Justice Muhammad Asif to the Islamabad High Court (IHC) on February 1 has ignited fears regarding the ingress of the executive into judicial appointments and transfers, and the consequences that could have for the principles of judicial independence and separation of powers.
Before the transfer orders came into effect, five judges of the IHC had expressed strong reservations regarding this move in a letter addressed to the Chief Justice of Pakistan and the chief justices of all high courts, while also warning that the potential elevation of Justice Dogar as Chief Justice of the IHC would violate constitutional procedures and judicial norms.
The lawyers’ fraternity is clearly divided on this issue. One group, for example, is of the view that the executive is clearly uninterested in heeding these concerns and through this measure intends to rein in IHC judges who have not only displayed their inclination to give verdicts not to the ruling dispensation’s liking, but have also been very vocal about powerful quarters meddling in court affairs.
The other side, however, fully supports this induction in the IHC through transfers from other High Courts. In this regard, this side has argued that these transfers have set a positive trend, symobolising the spirit of the federation.
It is important to note that this action was made possible following the passage of the contentious 26th Amendment, which many had forewarned would prove to be a tool for shaping the judiciary in the government’s desired mould than for substantive reforms of this vital organ of the state.
It’s, therefore, worth observing that following the historic 2007 Lawyers’ Movement, which helped restore former chief justice Iftikhar Chaudhry to his office after the then-president Pervez Musharraf had suspended him, the judiciary underwent a significant paradigm change. Superior court judges became all too ready to resort to what prominent lawyer Abul Moiz Jaferri once termed “populist suo motu-ism”, invading into the executive’s space, dismissing elected prime ministers and handing out verdicts that essentially rewrote the Constitution.
While before the lawyers’ movement, the executive wielded excessive influence over judicial affairs, afterwards the balance swung too far in the opposite direction, leading to unwarranted judicial encroachment in governance and increased tensions between state institutions.
It is clear then that trichotomy of power, meant to ensure checks and balances among the executive, legislative and judicial branches, has never effectively functioned in Pakistan, leading to power being concentrated in one branch of government or the other.
As has been noted in this space before, the passage of the 26th Amendment marked yet another instance of the polity swinging to the opposite extreme, where the executive again dominates judicial affairs, from the composition of the constitutional benches and appointments of chief justices of the Supreme Court and the various high courts to cherry-picking cases for the constitutional benches.
What is disturbing is that even before the enactment of the 26th Amendment, the fissures within the superior judiciary had led to its dirty linen being washed in public, exposing deep-seated divisions and further undermining public trust.
All this clearly doesn’t augur well for the country as we have seen a steady erosion of the principles of democratic governance.
When the 26th Amendment was passed, this newspaper had urged the government to remember that ensuring judicial independence was vital for upholding justice and democracy, as one day it will be in the opposition, and would benefit from an impartial judiciary protecting all citizens and political actors, regardless of the power they hold. It is evident that those exhortations aren’t being heeded.
It goes without saying that any move pertaining to the judiciary that doesn’t aim to improve access to justice for all citizens will lead towards the erosion of public trust in the system, ultimately weakening the social fabric that binds us together and resulting in increased polarisation. The rulers must reverse course and work towards rebuilding this trust.
Copyright Business Recorder, 2025
Comments