ISLAMABAD: Chief Justice of Pakistan (CJP) Yahya Afridi, who also serves as the chairperson of the Judicial Commission of Pakistan (JCP), has observed that granting the transfer of Justice Khadim Hussain Soomro from the Islamabad High Court (IHC) to the Sindh High Court (SHC) would render key constitutional ideals — federalism and equitable representation — redundant.
Such a transfer will also reduce the appointments of judges to merely a temporary and reversible administrative arrangement, the CJP feared in his response to informal requests by IHC Chief Justice Sardar Muhammad Sarfraz Dogar to requisition a JCP meeting for the transfer of five judges presently serving in IHC to other high courts.
The IHC chief justice had sought to convene a JCP meeting on April 28 to consider the transfer of senior puisne judge Justice Mohsin Akhtar Kiani to the Lahore High Court (LHC), Justice Babar Sattar to the Peshawar High Court (PHC), Justice Arbab Tahir to the Balochistan High Court (BHC) and both Justice Saman Rafat Imtiaz and Justice Khadim Hussain Soomro to the Sindh High Court (SHC).
Earlier, the CJP had declined the suggestions but on April 7, the JCP’s secretariat received by hand an undated requisition signed by five JCP members.
Article 175A (22) of the Constitution mandates the chairman of the commission to convene a meeting within 15 days if a requisition is signed by one-third of its members.
Referring to Justice Soomro, who was earlier transferred to the IHC from the SHC under Article 200 of the Constitution in February 2025, the CJP, in his response, said seeking the transfer of the same judge out of the IHC defeats the very objective of promoting the ideals of federalism, inclusivity, and equitable representation within the superior judiciary.
Such a course, if acceded to, would render the conscious preservation of constitutional ideals, namely federalism and equitable representation, redundant and denude it of all practical effect, reducing it to merely a temporary and reversible administrative arrangement, the letter regretted.
Thus, the request is fundamentally inconsistent with the very purpose of earlier transfers of three judges to the IHC in Feb 2025.
The CJP reminded that at the time of three transfers to IHC in 2025, it was expressly noted that their transfers from different high courts to the common capital of the federation, i.e. the IHC, was an initiative that aligns with the spirit of federalism enshrined in the Constitution.
The thoughtful consideration given to the linguistic characteristics and equitable representation of all federating units in IHC reflects a commitment to inclusivity and adherence to constitutional ideals, the letter reminded.
CJP Afridi said the requisition, which seeks to transfer Justice Soomro and Justice Imtiaz, both of whom belong to Sindh, to SHC, would result in Sindh being left without any representation in IHC.
Moreover, the request for transfers is not accompanied by any articulated reasons or apparent institutional necessity that would strongly justify the same, the CJP reminded, adding in his view, when a transfer request is unaccompanied by any articulated reasons or apparent institutional necessity, as in the present case, it assumes in its effect and consequence, a penal character resulting in the de facto removal of a judge from office.
The letter highlighted that the requisition seeks to transfer five out of nine existing IHC judges without seeking in exchange the transfer of judges from other high courts to fill the vacancy.
Such a transfer would create multiple vacancies in IHC, potentially leading to further requests for fresh appointments.
Seeking the transfer of more than half of the existing strength of the IHC would inevitably result in judicial uncertainty in filling these want only created vacancies and thus would erode public trust in the safe and efficient administration of justice at the IHC.
Under the scheme of the Constitution, this approach cannot be sustained. The Constitution provides a specific and exhaustive mechanism for addressing matters that may warrant adverse consequences against a judge, including removal from office under Article 209, through proceedings before the Supreme Judicial Council, the CJP observed.
When viewed through the lens of the constitutional scheme set out in Article 209, the present request becomes untenable, CJP Afridi emphasised.
A transfer which, by reason of its context, absence of justification, or penal character, operates as a removal from office cannot be insulated from this constitutional mandate merely by the label attached to it.
To permit such a transfer would be to allow, in substance, what the Constitution expressly forbids in form: the displacement of a judge from office through a route other than that mandated by Article 209, the letter said.
The proposed transfer, insofar as it carries a penal character and results in an effective removal, therefore stands in direct conflict with the exclusive constitutional mechanism governing judicial accountability, the CJP emphasised.
Crucially, it is clarified, CJP Afridi observed, where the substance of the present request effectively seeks to achieve through transfer what the Constitution entrusts to SJC to determine through inquiry and adjudication, such an approach cannot be countenanced.
Accountability, if that is the underlying concern, must be pursued strictly within the constitutional framework; it cannot be advanced indirectly through administrative measures that, in effect, operate as punishment without recourse to the constitutionally mandated process, the CJP said.
Finally, it must also be borne in mind that permitting such transfers would set an undesirable and potentially far-reaching precedent, effectively normalising the treatment of judges as administratively interchangeable or disposable.
Such an approach would carry serious implications for the institutional integrity of the judiciary, while also eroding public confidence in its independence and stability, the CJP said.
More importantly, the proposed transfers, if allowed, would in substance assume a punitive character vis-à-vis the transferred judges: an outcome that finds no sanction anywhere in the constitutional scheme governing the superior judiciary, is wholly alien to the purpose of Article 200 of the Constitution, and runs contrary to the foundational principles of judicial independence and security of tenure.
For the foregoing reasons, the requisition for convening JCP’s meeting for the purpose of transfer of the concerned judges of IHC cannot be acceded to, the CJP observed.
CJP Afridi, however, said that JCP’s secretary may proceed to convene the meeting pursuant to the requisition, as mandated under Article 175A (22) of the Constitution.
