Islamabad:
At the forefront of a full court meeting in Islamabad High Court, planned to today, two IHC judges have raised serious questions about the lack of transparency in High Court.
Justice Babar Sattar and Justice Sardar Ejaz Ishaq Khan have written separate letters to IHC Chief Justice Sardar Sarfraz Dogar. Copies of letters are also sent to all IHC judges.
Both judges urged IHC CJ to include the points raised in letters at a full court meeting.
Justice Babar Sattar highlighted the lack of transparency and justification in the list of cases and the preparation of guards under the Watch of Justice Dogar, transferred to IHC from Lahore High Court in the midst of a protest by five IHC judges, including Justice Sattar and Justice Khan.
“Unlike respected institutional norms, you have created guards that exclude senior judges, including IHC Senior Puisne (Mohsin Akhtar Kayani), from the heading Division Benches.”
He asked if the list of cases should rest on CJ’s whim, or whether there should be transparency in deciding who hears, which case matches the judges’ expertise to the work assigned to them.
“We write every day in our judgments that public officials are not kings and that their administrative powers are neither unobstructed and they must be exercised in a colorful way.
“The causal lists issued under your watch show that cases are mostly awarded transferred and additional judges, omitting permanent judges in IHC who opposed your transfer to IHC.
“While exercising IHC’s administrative powers, don’t remember that the judges, including CJ, are also public officials – and not kings?” He asked. Justice Babar Sattar also highlighted IHC’s alleged failure to exercise supervision and control over the subordinate judiciary.
“Is IHC, who is derived his obligation to supervise and control the courts subordinate to it, or does it continue to look like a game of musical chairs that are predominantly played by deputationists as required in Article 203 of the Constitution?
“Can the judges of the Islamabad district’s judiciary, staffed such courts, print their legal functions without fear? Is IHC not the responsibility of developing the district judge as an independent institution possessed by integrity and efficiency?”
Justice Sattar also told IHC CJ that during his guard they have seen the office refuse to issue causal lists during violation of court decisions and cases transferred from the box to one court to another.
“Most recently, we have seen the issuance of guards to deprive two judges (including me) their docks in one step to make them dysfunctional with regard to their single bench work. These may be successful maneuvers in making some judges irrelevant.
“Our legal story is filled with similar malpractices that spread in authoritarian times. But is such an undermining of judicial independence that is justified?” He asked.
The letter also opposed the composition of committees that “undermine” High Court’s Collegiate character. Justice Sattar told IHC CJ that he had excluded two senior IHC judges from administrative committees.
He also said that IHC CJ had assumed powers to issue a circular that required judges to seek a noc from him to travel out of the country and essentially place judges on the exit checklist.
“Neither the Constitution nor the Law Vester such a rule -making power in the CJ’s office to exercise authority over its comrades. The draft rules circulated for processing during a full hearing are also trying to concentrate all administrative powers in the CJ’s office.”
The IHC judge said the judges are among the highest paid public officials and should be carefully held for their performance by the public.
“But shouldn’t there be an agreed objective framework for evaluation of performance? Under your guard, IHC has issued skewed statistics. These statistics are designed to cultivate the impression that some judges are working super effectively while others are not working at all.
“What if a curious researcher were to examine the species (and the number) of cases assigned to the ‘executive’ judges against others, and the species, the quality and length of orders that constitute their disposal?
“Should we not put together a consensus evaluation criterion as well as guidance that judgments must be reported, to sincerely try to improve our performance and keep up with accounting instead of engaging in misleading advertising?” The letter said.
With reference to letters, the former additional lawyer Tariq Mahmood Khokhar said that a chief of justice is to act as a master of the guard schedule is not an absolute rule, but a constitutional confidence.
“The power of the guard plan cannot weapon to marginalize judges to protect the exercise. It seems that a management tool has been transformed into an instrument for bench packing.”
Khokhar stated that in liberal rule of law such as Britain, the United States, Canada and Australia, case distribution of transparent rules, randomization and collegiate protection measures is regulated. “No Supreme Court that can arbitrarily sideline colleagues.”
He said that the power in India is practiced fairly and cannot weapon to marginalize judges or manipulate results. The Inaction of the Supreme Court in Pakistan in the light of such Shenanigans is a “legal amazement” signaling in the executive capture of the judiciary.
“The independence of the court does not belong to any judges, but to the entire judiciary; to limit it by administrative subway is a constitutional dishonesty of the greatest order. I cannot imagine any independent judiciary with such a ridiculous separation,” he said.
He added that Pakistan no longer has structural protection measures: transparent list, random allocation, collegial decision making for sensitive cases and effective legal surveillance.
“We see judicial independence versus administrative estimates. A Supreme Court as a master of the schedule exceeds independent Puisne judges, the rule of law, power separation, transparency and impartiality. This is legal tyranny under the garb of a reverse ‘administrative prerogative’.
“In an era of inverted ‘case law’, our descent continues to a judicial abyss.”
Attorney Abdul Moiz Jaferii stated that this is another manifestation of rule of program list that has been widespread for a number of years to crush and control independent judges.
“It became more public when former Chief Justice of Pakistan Umar Ata Bandial began driving the entire Supreme Court through a list of three judges.” He said that it basically sacrificed the effectiveness of the court at the control altar.
“The manifestation we see here is all the more unlucky because two stars’ judges have been reduced in their role and scope. We are now waiting for the next EACS that we are told that it might be another violin with the constitution – and it could just serve as the last straw,” Jaaferii added.
