Islamabad:
Before a full court meeting of the Superior Court of Islamabad, scheduled for today, two IHC judges have asked serious questions about the lack of transparency in the Superior Court.
Judge Babar Sattar and Judge Sardar Ejaz Ishaq Khan have written separate letters to the President of the Justice of IHC, Sardar Sarfraz Dogar. Copies of the letters have also been sent to all IHC judges.
Both judges urged the IHC CJ to include the points raised in the letters at the meeting of the complete court.
Judge Babar Sattar highlighted the lack of transparency and the justification in the case list and the preparation of the lists under the surveillance of Judge Dogar, who was transferred to the IHC from the Superior Court of Lahore in the middle of a protest for five ChC judges, including Judge Sattar and Judge Khan.
“Unlike the respected institutional norms, it has created lists that exclude senior judges, including Puisne judge of IHC (Mohsin Akhtar Kayani), directs divisional banks.”
He asked if the list of cases should rest in the whims of the CJ or if there should be transparency to decide who listens to what case, while coinciding with the experience of the judges with the work assigned to them.
“We write in our judgments every day that public officials are not kings and that their administrative powers are not without restrictions or should be exercised in a colorable way.
“The lists of causes issued under their surveillance show that the cases are mainly assigned to transferred and additional judges, leaving aside the permanent judges of the IHC who opposed their transfer to the IHC.
“While exercising the administrative powers of the IHC, don’t you remember that judges, including the CJ, are also public officials, and not kings?” asked. Judge Babar Sattar also highlighted the alleged IHC failure to exercise supervision and control over the subordinate judiciary.
“Does the IHC unload your obligation to supervise and control the courts subordinated to it, or continue to look like a game of musical chairs interpreted predominantly by the deputy, as required by article 203 of the Constitution?
“Can the judges of the Judiciary of the Islamabad district handle such courts to download their judicial functions without fear? Does the IHC not have the responsibility of developing the Judicial Power of the District as an independent institution that has integrity and efficiency?”
Judge Sattar also told the IHC CJ that, under his surveillance, they have seen that the office refuses to issue lists of causes in breach of judicial orders and cases that are transferred from the file from one court to another.
“More recently, we have seen the issuance of lists to deprive two judges (including me) of their busy in a movement to make them dysfunctional with respect to their work of a single bank. These can be successful maneuvers to make some judges irrelevant.
“Our judicial history is full of similar bad practices that spread during authoritarian times. But is such a subversion of justifiable judicial independence?” asked.
The letter also opposed the composition of committees that are “undermining” the collegiate nature of the Superior Court. Judge Sattar told the IHC CJ that he had excluded two judges of Senior IHC from the administrative committees.
He also said that the IHC CJ had assumed that the powers issued a circular that required the judges to seek a noc of him to travel outside the country, essentially placing the judges in the output control list.
“Neither the Constitution nor the Law grant said power of the rules in the CJ office to exercise authority on their peers. The draft of the rules circulated for consideration during the meeting of the complete court also seeks to concentrate all administrative powers in the CJ office.”
The IHC judge said the judges are among the best paid public officials and that they must be strictly considered to account for their performance by the public.
“But there should not be an objective framework agreed for performance evaluation? Under its clock, the IHC has issued biased statistics. These statistics are designed to cultivate an impression that some judges work very efficiently, while others do not work at all.
“What would happen if a curious investigator investigated the nature (and number) of the cases assigned to the judges ‘that work’ against others, and the nature, quality and duration of the orders that make up their elimination figures?
“Should we not prepare a consensual criterion of performance evaluation, as well as guidance for which the judgments will be informed, to fervently seek our performance and take responsibility, instead of participating in deceptive advertising?” The letter said.
Referring to the letters, former additional attorney general Tariq Mahmood Khokhar said that the prerogative of a president of the Supreme Court to act as a teacher of the list is not an absolute domain but a constitutional confidence.
“The power of the list cannot be armed to marginalize the judges to protect the Executive. It seems that an administration tool has become a banking instrument.”
Khokhar declared that in liberal countries of the State of law such as the United Kingdom, USA, Canada and Australia, the assignment of cases is regulated by transparent rules, randomization and collegiate safeguards. “No justice president can there be arbitrarily colleagues sideways.”
He said that in India, power is exercised fairly and cannot be armed to marginalize the judges or manipulate the results. The inaction of the Supreme Court of Pakistan in front of such pranks is a “legal astonishment” that indicates the acceptance in the executive capture of the Judiciary.
“Judicial independence does not belong to some judges but to the entire Judiciary; to reduce it by administrative subterfuge, it is a constitutional impression of the order more severely.
He added that Pakistan no longer has structural safeguards: transparent list, random assignment, collegial decision making for sensitive cases and effective judicial supervision.
“We are seeing judicial independence versus administrative discretion. A president of the Supreme Court as a teacher of the list transcends independent Puisne judges, the rule of law, the separation of powers, transparency and impartiality. This is the judicial tyranny under the outfit of an ‘inverted administrative prerogative’.
“In an era of ‘inverted jurisprudence’, our descent continues to a judicial abyss.”
Abdul Moiz Jaferii lawyer declared that this is another demonstration of the list rule, which has prevailed for several years to crush and control independent judges.
“It became more public when the former president of the Supreme Court of Pakistan Umar ATA Bandial began to direct the entire Supreme Court through a list of three judges.” He said he was basically sacrificing judicial efficiency on the altar of control.
“The demonstration we see here is even more unfortunate because two star judges have been reduced in their role and scope. Now we are waiting for the next ax, which we are told that it could be another violin with the Constitution, and that could serve as the last tail,” added Jaferii.
