5 IHC judges seek to preempt ‘usurpation of judicial norms’.

In an unusual development, five judges of the Islamabad High Court (IHC) have approached the chief justice of Pakistan and three high court chief justices, requesting them not to advise the president for a permanent transfer of a judge to the highest court in the federal capital.The request was made through a letter penned by Justice Mohsin Akhtar Kayani, Justice Tariq Mehmood Jahangiri, Justice Sardar Ejaz Ishaq Khan, Justice Babar Sattar and Justice Saman Rafat Imtiaz that surfaced on Friday.The five-page letter was addressed to CJP Yahya Afridi, IHC Chief Justice Aamer Farooq, Lahore High Court’s Justice Aalia Neelum and Sindh High Court’s Justice Muhammad Shafi Siddiqui.”It is requested to the chief justices that in their consultation with the president, under Article 200 of the Constitution, it be categorically presented that such a permanent transfer of a judge to the Islamabad High Court would be against the spirit of the Constitution, detrimental. [to] the independence of the judiciary, usurpation of established judicial norms, and also wholly unjustifiable. It would set a pernicious precedent whose ramifications are going to be extremely far-reaching,” says the letter.They also made it clear that if the purpose of transferring a judge from the LHC to the IHC is to consider him for the position of chief justice, then this is tantamount to “a fraud on the Constitution”.The five IHC judges have written the letter after media reports said that a judge is being transferred from the LHC to the IHC and he would be considered for the appointment as the next chief justice of the court. Likewise, there are reports regarding the transfer of an SHC judge to the IHC as well.The relationship between the establishment and the majority of the IHC judges are tense on account of their letter to the Supreme Judicial Council (SJC) seeking guidance on the alleged interference of agencies in the judicial functions.The IHC judges had accused that they faced immense pressure in the Tyranny case. They narrated all the facts as how the judicial proceedings were manipulated in the high-profile cases.However, Supreme Court led by former chief justice Qazi Faez Isa had failed to erect deterrence to halt interference of executive agencies in the judicial functions.Following the letter episode, the coalition government brought the 26th Amendment to get executive’s hold on the appointment as well as formation of benches. The executive has so far succeeded in appointing like-minded judges and forming constitutional benches.After the possible elevation of the present IHC chief justice to the Supreme Court, there is a perception that the executive wants to appoint it’s like-minded chief justice in the IHC. There are reports that the government is interested in transferring three judges from different high courts to the IHC to shift the balance in its favor.Lawyers have been criticizing the executive for doing ‘court packing’ after the 26th constitutional amendment.Regarding the possible transfer of judges to the IHC, former additional attorney general Waqar Rana says that any attempt to exercise the purported power of transfer by the president would be patently mala fide and also unconstitutional because the amended provision previously added to the Constitution during the Zia’s martial law regime was abused and it was ultimately read down by the Supreme Court in Al-Jehad-1.Rana, however, states that now it all depends upon the chief justice of Pakistan whether he allows this purported exercise of power by the president or stops it. “I trust he remembers his stance during the Lawyer’s Movement where he along with his two other partners struggled for rule of law and supremacy of the Constitution and Independence of the Judiciary. These offices are solemn trusts where Allah is witness to every commitment and promise made. ,” he adds.Chaudhry Faisal Hussain advocate, who represents Imran Khan in several cases, has said that the IHC judges are a ray of hope in these dark times. “The issues raised in the letter are voice of the people. The incumbent government is on a constant effort to control the judiciary and it wants judges to act like Patwaris (revenue staffers),” he adds.Chaudhry Faisal also believes that lawyers of Islamabad will not accept any such appointment and they will resist against this regime.The five IHC judges have mentioned seven reasons in their letter and urged the chief justices not to advise the president for any such transfer.The letter states that under the existing scheme of the constitution, there is no conception of a unified federal judicial service in Pakistan.”The high courts are independent and autonomous. The justices who are elevated to a particular High Court, take oath under Article 194 of the Constitution, with respect to a particular province, or for the purposes of the Islamabad High Court, with respect to the Islamabad Capital Territory. Since the passage of the Eighteenth Ame