The controversy over the proposed transfer of judges from the Islamabad High Court is not a quarrel about geography but about power. At stake is whether a judge may be moved from one court to another as part of a principled policy of federal representation or whether transfer can become a quiet instrument of pressure.
Chief Justice Yahya Afridi is right to draw that line. He supported the transfer of judges to the Islamabad High Court when it served the idea of federal inclusion. He is right to oppose the transfer of sitting IHC judges out of it when the move appears punitive, selective and damaging to judicial independence. Critics will say that the chief justice has changed his mind. In February 2025, he welcomed the transfer of judges from provincial high courts to the IHC, calling Islamabad a symbol of the federation and saying that judges from other provinces should also get a fair chance.
The CJ described the arrival of Balochi-speaking and Sindhi-speaking judges in the capital’s high court as something to be welcomed. That was not a casual remark. The Islamabad High Court is not merely a local court for a federal territory. It sits in the capital and deals with matters that often affect the federation, the executive and institutions located in Islamabad. A case can therefore be made that its composition should reflect Pakistan’s diversity. But that argument cannot be twisted into a licence for judicial displacement. There is a difference between broadening a court and emptying it of particular judges.
There is also a difference between inclusion and punishment. The first strengthens institutions. The second weakens them. The first says that judges from Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa should all have a place in the federal capital. The second says that judges who have become inconvenient may be made movable at will. That is precisely the danger the chief justice appears to have identified. The proposed transfers reportedly concern five IHC judges.
The Judicial Commission of Pakistan is to deliberate on the issue after the 27th Amendment altered Article 200, empowering the commission to recommend inter-court transfers without the consent of the judges concerned. That amendment changes the balance between institutional necessity and individual security of tenure. Consent was not a minor procedural courtesy. It was a shield against pressure. Once it is removed, the duty to act with restraint becomes heavier, not lighter.
I do not approach the matter as a romantic defender of every judicial assertion. I supported the 26th Amendment because it addressed a real imbalance. Pakistan had suffered from judicial excess during the tenures of the previous four chief justices. Under them, judicial power often appeared less like constitutional interpretation and more like political intrusion. Benches were formed and cases were taken up in ways that created the perception of personal rule in robes. The court lectured elected governments, entered domains better left to parliament and the executive and weakened its own credibility by appearing selective in its activism.
The 26th Amendment was therefore necessary as a corrective. It sought to restrain a judiciary that had forgotten restraint. But supporting the 26th Amendment does not require blind support for every later assault on judicial independence. That is why I opposed the 27th Amendment. If the 26th Amendment was meant to curb judicial overreach, the 27th carried a destructive potential of another kind. It risked turning correction into control. By altering Article 200 and allowing the transfer of high court judges without their consent, it opened the door to a dangerous practice: moving judges not because the institution requires it but because power finds them inconvenient.
A constitutional amendment may be passed by parliament, but it may still disturb the delicate balance on which judicial independence rests. This distinction is important in understanding Chief Justice Afridi’s changing stance. He was right earlier to welcome transfers into the Islamabad High Court when those transfers could be defended as a federalising measure. Islamabad is the common capital and its high court should not appear to belong to one city, one bar or one administrative elite. Judges from Sindh, Balochistan, Punjab and Khyber Pakhtunkhwa can enrich the court and symbolise the federation.
But he is equally right now to resist the proposed removal of sitting IHC judges when the move appears punitive. There is no contradiction here. The principle is the same: judicial transfers must strengthen the institution, not discipline judges. The CJP’s position should therefore be read not as inconsistency but as constitutional maturity. A judge may support reform while opposing manipulation. A columnist may support curbs on judicial imperialism and still reject executive domination of the judiciary.
Pakistan does not need a return to the era when chief justices behaved like unelected rulers. Nor does it need a new era in which judges are treated as transferable officials. The 26th Amendment was necessary because judicial arrogance had become unbearable. The 27th Amendment is dangerous because administrative power over judges can become a weapon. Between these two positions lies a consistent democratic argument: courts must be restrained but also remain independent.
The chief justice’s reported objection, therefore, deserves support. He is said to have warned that transferring sitting IHC judges in the present circumstances would assume a punitive character and set an undesirable precedent. He reportedly feared that such a move could erode public confidence in the judiciary’s independence and stability. That is the crux of the matter. A constitution may permit a transfer. It does not follow that every transfer is wise, fair or constitutionally healthy. Power may be lawful and still be abused.
The test is not only whether Article 200 can be invoked. The test is why it is being invoked, against whom and with what institutional consequence.
Pakistan has seen too much constitutional engineering to be innocent about timing. When judges are suddenly considered for transfer, the public is entitled to ask whether this is routine administration or a message wrapped in constitutional language. In courts, appearances matter because public confidence is part of judicial authority. A judgment is obeyed not because judges command soldiers or tax collectors but because the public accepts that courts are independent. If judges appear vulnerable to transfer for displeasing power, that confidence decays.
The government and its supporters may argue that the amended constitution now gives the JCP authority to recommend transfers by majority vote. That may be true as a matter of institutional design after the amendment. But a majority is not a moral deterrent. The more powerful the commission becomes, the more carefully it must explain itself. If the JCP wishes to move judges, it should set out transparent criteria: workload, vacancies, regional representation, expertise, conflict avoidance or administrative necessity. It should not create the impression that judges are chess pieces. A judge is not a deputy commissioner. A high court is not a department.
Those defending the chief justice need not pretend that Article 200 has no use. It does. Pakistan’s judiciary can benefit from exposure across provinces. A federation should not have sealed judicial compartments. Judges may gain from serving in different constitutional environments. Courts may gain from diversity of experience. But rotation must be policy, not reprisal. Pakistan’s constitutional history teaches a simple lesson: when courts are bent, politics becomes rougher.
The writer is dean of the faculty of liberal arts at a private university in Karachi. He tweets/posts @NaazirMahmood and can be reached at: [email protected]
