It’s the context
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ON Feb 1, three judges were transferred to the Islamabad High Court (IHC) from the other high courts. This was done on a Saturday evening. Like most of what the regime does these days, this too was done clandestinely. This time, too, it was spun as being for the people’s good.
The government hangs onto a thin pretence of legitimacy. Article 200 of the Constitution allows the president to transfer judges from one high court to another. The president has to take the chief justice of Pakistan on board, and needs a similar nod from the chief justices (CJ) of the courts involved in the transfer. The judge being transferred has to consent. If these boxes have been checked, what is the problem?
Quite a few. Power even when granted by a legal instrument cannot be construed to be unlimited. To the extent that Pakistan’s courts still count for something, the Supreme Court in ‘Al Jehad Trust’ (1996) held that judges cannot be transferred from one high court to another for the fun of it, and only if it is in the public interest. During the 1990s, the Bhutto government was treating high court judges as pieces in a board game, to be moved around when one’s turn came. The SC held that this was not how it should be. The whole point of having a judiciary is that grievances of all stripes be decided with fairness and neutrality. Being on the executive’s leash takes this away.
The sleight of hand lies in presenting the transfer of judges to the IHC as a benign exercise of presidential powers. Provide even a limited context, though, and the thin mask of legitimacy slides away. The legality of an action is to be seen in its relevant context. A look at another jurisdiction is instructive.
The history of the US and the development of its constitutional law, in large part, centre on white supremacy, with minorities, particularly black people, struggling for their rights. Not so long ago, when white judges sitting in US federal courts were asked to outlaw white people’s discriminatory laws and practices, they would shrug their shoulders and pretend there was no discrimination.
Being on the executive’s leash takes away judicial fairness.
In ‘Plessy vs Ferguson’ (1896), for instance, the US supreme court decided the question of constitutionality of a Louisiana statute, that required white people to sit in train cabins reserved for them, with black people bundled away in other cabins. With a straight face, the judges, with the exception of only one, reasoned that there was no discrimination against black people: if the latter had been prevented from sharing cabins with white people, the white people had been similarly restrained. The court pretended as if the subjugation of black people was not even a thing in America.
The US supreme court took the issue, removed it from its context, dusted off societal realities, put on blinkers, and then reasoned that segregation was alright since it did not violate the equal protection clause of the constitution. Except that it was not alright. And this is what the US supreme court belatedly came to realise in 1954, in ‘Brown vs Board of Education’, that facial neutrality of a law is not enough. Even if there is a discriminatory effect of a law, it needs to be weeded out.
Similarly, the Pakistani government’s justification for transferring judges to the IHC cannot be seen without the relevant context. If the president’s power under Article 200 is not considered limited — to be used for temporary periods only — then there are obvious concerns here of undermining federalism and the autonomy of each high court. But even more fun-damentally, in our context, as displayed by our judicial history, there have been far too many justices Munirs and Qazis offering themselves as willing facilitators, enshrining the will of someone else as law in their jud-gements.
There are, however, a few others too. In March 2024, the six judges of the IHC had written a letter citing instances of interference by the executive. The SC was compelled to take suo motu notice. The remaining high courts nodded in unison with the IHC. It appeared that this was not merely a matter of one or two instances, but an epidemic.
But by February 2025, measures had been devised to completely undercut the six. While the 26th Amendment was a broader dismantling of the judiciary, the IHC was singled out for special treatment. The IHC CJ was imported from another court. Before leaving, the previous one ensured that administrative control rested with the transferred judges. The six were sidelined.
With such a backdrop, there is only one manifest purpose that is decipherable in transferring judges to the IHC: to increase the executive’s control over the judiciary. And this is hardly in the public interest.
The writer is a lawyer based in Islamabad. The views expressed are his own and do not reflect those of his firm.
Published in Dawn, March 21st, 2025
