The recent short order by the Constitutional Bench of the Supreme Court of Pakistan, allowing the president to transfer judges between high courts and potentially alter seniority to the detriment of standing judges, marks a deeply concerning moment for judicial independence in the country. While the verdict may appear technical in nature, its implications cut to the core of constitutionalism and the separation of powers — principles that underpin any democratic society.
The context of this judgment cannot be ignored. It stemmed from a controversial presidential decision to transfer three judges from various high courts to the Islamabad High Court (IHC), followed almost immediately by the appointment of one of the transferees as acting Chief Justice of the IHC. This superseded a senior puisne judge, raising serious concerns within legal circles about the motives behind such administrative maneuvering. Five sitting judges of the IHC, along with the Karachi and IHC bar associations, challenged the decision — not out of personal grievance, but to protect the integrity and independence of the judiciary from executive encroachment.
Unfortunately, the majority judgment sidestepped the core legal and ethical questions. It justified the general principle that such transfers are within the president’s authority, without adequately addressing whether the transfers were made in accordance with law and due process. The dissenting opinion, while more critical, still failed to give due weight to allegations of interference by intelligence agencies — dismissing them on the grounds that agencies like the ISI “have no role under the Constitution” in judicial appointments or transfers. Such reasoning ignores the well-documented history of informal, yet powerful, influence wielded by the security establishment over civilian institutions in Pakistan.
More troubling still is the broader message this ruling sends to the judiciary: toe the line or risk being sidelined. Judges who stand firm against unconstitutional pressures may now fear professional retaliation, while those who align with the preferences of the executive — or unseen powers behind it — might find themselves fast-tracked to leadership roles. This creates a chilling effect, one that erodes public confidence in the judiciary’s ability to act as an impartial arbiter.
The judiciary is supposed to be the last bulwark of the Constitution, not a tool for administrative convenience or political agendas. If the bench does not collectively assert its autonomy and protect its members from undue influence, the very foundation of justice will be compromised. The legal fraternity, civil society, and media must remain vigilant and continue advocating for transparent and constitutional processes in judicial appointments and transfers. Anything less would be a disservice to democracy itself.