Islamabad High Court (IHC) Justice Babar Sattar on Tuesday presented a charge sheet against Chief Justice Mohammad Sarfraz Dogar, highlighting the “judicial ills plaguing the high court” ahead of a full court meeting.
The new judicial year began in the IHC on Tuesday with Justice Dogar convening a full court meeting attended by all judges. Officials said the chief justice scheduled another full court session for 2pm today (Wednesday), issuing formal notices directing all IHC judges to attend.
Although the detailed agenda was not made public, such meetings are generally convened at the start of the judicial year to review the court’s performance, discuss administrative affairs, and set priorities for the coming months.
The full court meeting, to be chaired by Justice Dogar, will bring together all serving judges of the IHC for collective deliberations on judicial and administrative matters.
Justice Sattar’s letter, seen by Dawn.com, said the full court meeting was “long overdue but welcome step towards correcting the illegalities that have seeped into the administration of Islamabad High Court”, pointing out that the process had begun during the term of the previous top judge.
“I am writing to you in request inclusion of the matters listed below for discussion in the full court meeting. I have only included here brief explanations or questions to articulate their relevance, but I am sure you’ll get my drift.
“Some might counsel that this is an exercise in futility in view of the egregious disregard for judicial independence, institutional norms and the principle of comity amongst judges that has been witnessed in our midst since your transfer to Islamabad High Court. But one must never lose hope in the innate capacity of human beings to assume control of their agency and do the right and decent thing,” Justice Sattar wrote.
IHC’s diminishing role as a guardian of fundamental rights: Justice Sattar said the primary responsibility of the judiciary in a rule of law polity was to protect constitutionally-guaranteed fundamental rights against the abuse of power by the state.
He questioned whether IHC judges truly believed that was discharging that “pivotal constitutional duty” today and whether they believed that citizens perceived them as protectors and defenders of fundamental rights.
Failure to exercise supervision and control over subordinate judiciary: On this issue, Justice Sattar asked if the IHC was discharging its obligation to supervise and control courts subordinate to it in a manner so that judges manning such courts could discharge their judicial functions without fear, as required by Article 203 of the Constitution.
“Should the Islamabad District judiciary continue to look like a game of musical chairs played predominantly by deputationists or does IHC have the responsibility to develop district judiciary as an independent institution possessed of integrity and efficiency?”
Lack of transparency and logic in fixation of cases and preparation of rosters: About this issue, Justice Sattar said that as opposed to respecting institutional norms, Justice Dogar had created rosters excluding senior judges, including the senior puisne judge, from heading divisional benches.
“Should fixation of cases rest on the whims of the Cl or should there be transparency in who hears what case, while matching expertise of judges to the work they are asked to do? We write in our judgments every day that public officials aren’t kings and their administrative powers are neither unfettered nor should be exercised in a colorable manner. The cause lists issued under your watch reflect that cases are mostly marked to transferred judges and additional judges, leaving out permanent judges of IHC who found your transfer to IHC disagreeable. While exercising the administrative powers of IHC should one not remember that judges, including the CJ, are public officials too and not kings?”
Use of administrative powers to undermine judicial independence: Justice Sattar lamented that under Justice Dogar’s leadership and watch, “we have seen the office refusing to issue cause lists in breach of judicial orders, we have seen cases being transferred from the docket of one court to another despite the lack of any power in the office of the CI to do so, and most recently we have seen issuance of rosters to deprive two judges (including me) of their dockets in a move to render them dysfunctional vis-à-vis their single-bench dockets”.
The judge said that the above might be successful manoeuvers in “rendering some judges irrelevant” and the country’s judicial history was replete with “similar malevolent practices that spread during authoritarian times”. He, however, questioned whether such “subversion of judicial independence” was justifiable.
Composition of committees to undermine high court’s collegiate character: On this issue, Justice Sattar said Justice Dogar had constituted committees “such that they exclude most of the senior judges of IHC from participating in its administrative functions.
“You’ve excluded the two senior-most judges of IHC from the Administration Committee in breach of IHC rules and entrenched institutional norms abided by all High Court, including the LHC from where you’ve come.
“Do you think manning IHC committees with additional judges appointed earlier this year and judges transferred from other provinces along with you strengthen IHC as an Institution and promote collegiality amongst judges?”
**Assumption of powers to transform chief justice’s office into a monocracy: The judge said the IHC chief justice had “assumed powers to issue a circular requiring judges to seek an NOC (no-objection certificate) from you to travel out of the country, essentially placing judges on the Exit Control List”.
Justice Sattar said neither the Constitution nor the law vested such rule-making power in the office of the chief justice to “lord over his peers”.
“The draft rules circulated for consideration during the full court meeting also seek to concentrate all administrative powers in the office of the chief justice. You might have read Lord Acton’s words that power tends to corrupt and absolute power corrupts absolutely. Will transforming the office of chief justice into an autocracy, in an effort to reduce the judiciary to a regiment, bolster judicial independence essential for the discharge of our adjudicatory duties?” Justice Sattar pondered.
Performance evaluation of judges and reporting of judgments: Regarding this issue, Justice Sattar said judges were the highest paid public officials and should be strenuously held to account for their performance by the public.
However, he questioned if should not there be an agreed objective framework for their performance evaluation.
“Under your watch IHC has issued skewed statistics regarding discharge of judicial work at IHC. These statistics are designed to cultivate an impression that some judges work super efficiently, while others don’t work at all. What if a curious researcher were to investigate the nature (and number) of cases marked to the ‘performing’ judges versus others, and the nature, quality and length of orders that make up their disposal figures? Should we not put together a consensual performance-evaluation criteria as well as guidance for which judgments are to be reported, to earnestly seek to enhance our performance and hold ourselves to account, instead of engaging in deceptive advertising?”
Concluding his letter, Justice Sattar said: “You will appreciate that it takes decades to build institutions, but they can be destroyed exponentially. We have seen this happen to Islamabad High Court in the last couple of years.
“While I may be accused of letting hope trump experience in writing to you to encourage and facilitate intra-institutional debate to stem the rot that is reducing this judicial organ into nothingness, I am partial to Rousseau’s opinion regarding the capacity of human beings for virtue. History doesn’t remember kindly those who only make hay while the sun shines. And history also reminds us that all good (and bad) times come to an end sooner rather than later.”
Justice Sattar expressed hope that the IHC chief justice would read the letter to “appreciate the spirit in which it is written”.
He added: “I apologise in advance if the content causes any offence, for that is not the intent. We are all grown adults who should be able to speak candidly about the state of our institution’s disrepair. Without honest identification and admission of our failings, there can be no corrective action.”
It may be mentioned that Justice Sattar previously wrote letters to the Justice Dogar on multiple issues, including amendments in the IHC Rules and formation of administrative committees, among others.
Recently, IHC Chief Justice constituted a division bench exclusively for clearing the backlog of nearly 2,000 tax references.
Both the judges, Justice Sattar and Justice Sardar Ejaz, are the members of this special bench.
IHC administration transferred all the cases pending in the dockets of both the judges to the other available judges.