Glaring flaws in Farah Hameed Dogar case verdict

The verdict does not address a host of mind-boggling questions
Islamabad, Jan 19: The Islamabad High Court (IHC) verdict in the Farah Hameed Dogar case, handed down on Friday, is full of flaws, discrepancies, inconsistencies and inaccuracies. The verdict does not address a host of mind-boggling questions.

A careful reading of the 14-page decision shows, on page 7, that the judge - confusing re-checking with re-assessment - gives a misplaced ruling: "Bare reading shows that an embargo has been placed on re-assessment of any answer book until publication of the result of the board examination."

The ruling here is erroneous because even this partial quoting of Rule 1.5 does not endorse what the judge says. Instead the rule talks about a strict embargo on re-assessment or re-evaluation after the declaration of the result.

Rule 1.5 (a), as quoted in the verdict (just prior to the judge's observation), reads: "The answer book of a candidate in any examination shall not be re-assessed under any circumstances. However, after the publication of the results of the board's examination, if a candidate, whether passed or failed, has strong grounds and belief that some mistake has been made in connection with his results, he/she may apply to the controller of examination (secrecy) on prescribed application form along with attested photocopies of marks sheet for re-checking of his answer book, in one paper or more as the case may be, on payment of prescribed fee."

This rule speaks of "re-checking," not "re-assessment," but only after the publication of the result. But the judge's observation suggests as if re-assessment is allowed after declaration of the result.

The judgment simply omits Rule 1.5 (e), which, while explaining Rule 1.5 (a), reads, "Whereas the re-checking does not mean re-assessment or re-evaluation of the answer book, the chairman or any officer of the re-checking committee appointed by him shall see that: 1) There is no mistake in the grand total on the title page of the answer book; 2) The totals of various parts of question have been correctly made at the end of each question; 3) All totals have been correctly brought forward on the title page of the answer book; 4) No portion of any answer has been left unmarked; 5) Total marks in the answer book tally with the marks sheet; 6) The answer book or any part thereof has not been changed/detached; 7) The hand writing of the candidate tallies in the questions/answer books."

Here it is clarified that, contrary to the understanding of the judge, the board rules in certain conditions allow the re-examination and revision of the answer sheets but only before the declaration of the result and as part of the examination process under Rule 7.6 and 1.3 (e) of the Examination Rules. This is the internal arrangement of the board, of which the candidates have always been unaware.

Coming to the second issue, the judge noted on page 5-6: "The sole question requiring examination is whether the chairman possessed any authority to direct re-assessment. The board was created under the Federal Board of Intermediate and Secondary Education Act 1975. Section 11(4) confers absolute jurisdiction upon the chairman to see that provisions of this Act are faithfully observed and he shall exercise all powers necessary for this purpose. Under Section 17, the board has been empowered to make regulations carrying out the purposes of this Act."

But on page 7, the judgment says: "Regulations do not confer any power on the chairman to direct re-assessment/re-evaluation of any answer book but such a power does reside in him being the chief executive of the board."

Firstly, Section 11(4) as cited in the judgment binds the chairman to go by the provisions of the Act and the rules and regulations made thereunder, which clearly bar re-assessment/re-evaluation after announcement of the result.

What the judgment simply missed is the relevant provisions of the Act. Clause 8 of Chapter 4 of the First Regulation of the Schedule of the Act titled "Chairman's power in cases of hardship," says: "Notwithstanding anything to the contrary in the regulations and rules, if, in the opinion of the chairman, there is a case of real hardship due to causes beyond the control of a student or a candidate for an examination of the board, the chairman may pass such orders as he may deem necessary to relieve that hardship.

"The orders of the chairman, passed under this regulation, shall be reported to the board for information; provided that such orders of the chairman shall not alter the award of marks, obtained by a candidate or his result determined on the basis of that award."

It means the chairman has no authority to pass any order that can change the result of a candidate. Interestingly, while the judge ruled that the chairman had such powers, the case file of Miss Farah Hameed Dogar clearly says the chairman had passed the order for re-assessment in relaxation of the rules. The Act, however, does not give such a power at all and there is also no provision either in the Act or the rules allowing such a relaxation.

Here the question arises if the chairman has exercised this authority in any case other than that of the daughter of the Chief Justice of Pakistan. Sources in the FBISE confirm that Miss Farah's was the only case where her answer sheets were re-assessed.

The judge wrote he had "perused the record." However, he simply omitted several facts like: 1) the chairman's orders for re-assessment "in relaxation of rules;" 2) the judgment showed the rechecking application of Miss Dogar in four papers whereas she had applied for re-checking in six papers; 3) while referring to Miss Dogar's application for re-checking, the verdict on page 8 reproduced the orders of the chairman: "I would like to see her answer books myself also."

The judgment says: "On 21-08-2008, answer scripts of respondent No.4 (Miss Dogar) were submitted to the chairman, who ordered on 10-09-2008: "Please have the answer book of this candidate re-assessed." However, the decision totally omits the fact that a re-checking committee - as provided for under the rules - was formed, which gave only one additional mark because of the re-counting and unanimously concluded that except one mark in Biology all other five papers were checked and found correct (CFC). Dissatisfied with the addition of just one mark, the chairman later sought re-evaluation.

While quoting past rulings, what the present decision plainly ignored was the fact that in all the cases, the board or university concerned refused re-assessment on applications from candidates, who consequently approached the superior courts for orders to the board or university for revaluation of their answer sheets. In none of the cases quoted in the decision, the board or university directly re-assessed any candidate as has been uniquely done in the case of Miss Farah Dogar.

The first case law - PLD 1992 S.C. 263 - does not issue any re-assessment order. The second case law - 1995 MLD 899 - pointed out flaws in the system and called for an elaborate mechanism against possible lapses of examiners, etc, but does not pass any direction to carry out re-assessment in any particular case.

The third case law pertains to a high court seeking suitable amendments in the rules of a university so that "re-checking" of answer books in very genuine cases could be undertaken. Similarly, most of the case laws relied on in the IHC judgment either talk of the university system or high court decisions.

Except for one case law to be discussed later, most - if not all - become irrelevant either because they pertain to universities, where examiners tend to personally know the students whose answer sheets were marked by them or for the reason that the latest Supreme Court decisions have categorically declared that re-assessment could result in the collapse of the whole education and examination systems. None of these Supreme Court rulings has been cited in the IHC judgment. These SC rulings are 1996 SCMR 676, 1996 SCMR 1872 and 2002 SCMR 504.

None of the case laws referred to has directly ordered re-assessment but speak in general terms about framing of such rules. But none of the intermediate boards has framed such rules.

The latest SC ruling (CP No. 248/2002 handed down in 2004),- cited in the present decision, reads: "The power has been given to the responsible officer like vice-chancellor to direct re-evaluation which was taken back by deletion of rule. It was held that to keep the check and balance system, it needs that such a power must reside in the vice-chancellor."

Even this judgment, firstly, pertains to a university and, secondly, it seeks the reversal of the deleted power of the vice-chancellor to order re-evaluation. On page 12, the IHC judgment - referring to an Indian court decision - talks of remedy for an aggrieved individual and says "the constitutional courts in Pakistan directed re-evaluation in cases of hardships and exceptional nature itself where the rule did not permit such an exercise... re-evaluation was thus considered an effective measure to stop the arbitrariness of the examiner."

However, there is no mention of the fact that Miss Farah Dogar was one of more than 1,000 candidates who had applied to the board for legally allowed re-checking. But without any application moved for re-assessment, only Miss Farah Dogar's case was taken up for re-evaluation despite a clear legal bar. Therefore, there is no explanation offered in the judgment as to how Miss Dogar's case was that of severe hardship and different from the rest of the candidates.

On page 13, the judgment deals with re-produced answers to two parts of different questions in Physics II and Urdu papers of Miss Farah. The decision says: "On visual examination of Physics-II paper, answer to question No 5(b) is given below: 'No, the plates of capacitor is not of different sizes; however to decrease the electrostatic factor a dielectric medium is putted in between them.' The examiner crossed this question and awarded zero mark. Later on, he gave it one mark. On re-evaluation, another mark was added...." Not only the language of the student is simply atrocious, but the answer is patently wrong, according to an electrical engineer, associated with a government organisation.

The Urdu part of the reproduced answer is extremely interesting and shows the liberal marking of the one who re-assessed the paper. According to the judgment, in the Urdu paper, one mark was awarded for an answer to a question but on re-evaluation two marks were awarded.

(See the text of the reproduced answer in the attached scanned copy, as even a near translation in English is not possible and could be misleading.)

But the judge, referring to these reproduced parts of the answer sheets, ruled: "I do find some of the irregularities in other papers too." The readers, only after going through the scanned copies of the reproduced parts, would be in a better position to decide if these were irregularities on the part of the examiner or those who re-assessed and increased Miss Dogar's marks.

Educationists declare IHC decision 'murder of justice'
Islamabad: Renowned educationists of the country have opined that the permission to re-assess papers of students would lead to the collapse of the whole education system. They were of the view that re-assessment was not allowed in any education system anywhere in the world and it would be a hard blow to the already under pressure education system of our country.

Renowned educationist Dr Ali Sajid, who is also the former head of Management Sciences National University of Science and Technology (NUST), the founder of Centre for Advance Studies in Engineering, Islamabad, and former Consultant of the World Bank said that a wrong precedent was being set to favour the daughter of a PCO chief justice, which would have fatal effects on the education system.

He said that to him Islamabad High Court's decision in the Farah Dogar case was the murder of justice. "The decision will open a Pandora's box of re-assessment seekers, perhaps resulting in the collapse of examining bodies," said the educationist, adding: "The PCO court has not only favoured the daughter of a judge but has done injustice to thousands of those students who had applied for rechecking before 2008."

He said that he had been teaching students of PhD and Masters and only re-counting was allowed but the IHC had imposed a "58(2) b" on poor students as offspring of high and mighty would get protection and would never fail while the poor would be subjected to so-called 'rules'.

He said that re-assessment was not allowed anywhere in the world as it would lead to the collapse of the whole education system. Dr Ali said that it was a relaxation for the privileged given by the court to the daughter of a mighty, therefore, it would further deteriorate the education system. "The IHC's decision is an illegal shortcut provided to the elite class to get their wrongdoings legitimised," he said.

However, Essa Daudpota, a renowned scholar and educationist, was of the view that re-assessment be allowed to all the boards and universities as an error could be made while assessing papers of students and one error made by an examiner makes a student suffer for his whole life.

However, he said, that in the Farah Hameed Dogar case, re-assessment was illegal as only one girl had been given permission to get her marks increased and that too up to the extent that made her eligible for admission to a medical college. He said that if rules were made in such a way that independent examiners were deputed to assess papers of students, it could lead to purity in the checking system.

Qasim Jan, Vice-Chancellor of Quaid-e-Azam University, one of the top most institutions in Pakistan, said that while marking a paper of a student, the examiner can commit a mistake as he was a human being and to err was human but allowing re-assessment would open a floodgate of applications and it would be difficult for the boards to deal with those applications.

"Radically speaking, re-assessment would create massive problems for the boards and would deteriorate the education system," said Qasim Jan adding: "Such permission would also amount to undue pressure on examiners as even in normal circumstances, there is so much pressure."

He said there might be some flaws in the current system, which is being followed in the entire world but what is the guarantee that the new system would have fewer flaws. He said the recounting of papers should be allowed to avoid counting mistakes and only unchecked portion of papers be marked as per the prevalent system or there was no need of re-assessment of papers as it may lead to the collapse of the system.

Dr Nazir, a renowned scholar teaching in the Quaid-e-Azam University, said that allowing re-assessment of papers would put the integrity of a teacher at stake while everywhere in the world it was the integrity of teachers which was respected.

He said that if educational systems of the world were studied, only re-counting of marks was permitted and rule of re-assessment was nowhere under the sun. He said that papers may be re-assessed from independent assessors to ensure transparent marking but re-assessment must not be allowed. "No one has enmity with any student, awarding less marks to him or her," said the teache,r adding: "It is the integrity of examiners that will be challenged if re-assessment was allowed."

Education system hits rock bottom
Islamabad: The Islamabad High Court (IHC) ruling can open the floodgates of massive fraud, abuse, misuse, manipulation and exploitation of the system by the mighty, high-placed and well-connected people in future. It can also affect the future of the children of the have-nots, deprived and underprivileged parents, no matter how brilliant they are and how better they perform in examinations.

The verdict, which would become conclusive only if the Supreme Court upholds it, could serve a serious blow to the education system where marks obtained by candidates in their intermediate papers determine their future entry or otherwise in the professional institutions where even one single mark more than the other competitor matters a lot.

From now on, dull and unintelligent children of the influential people, who fail to perform better in examinations or entry test, would be in a position to succeed in jacking up their marks because of their parents' high connections, leaving their brilliant counterparts bowled over and flabbergasted. Already there are innumerable complaints that justice and merit has always been a major casualty at the hands of the high-ranking lot in this country.

If a policeman protects a delinquent colleague, he is considered shielding a "paytee bhira" (brother from the same profession), he may be condoned, though very reluctantly, by one to some extent because he is not assigned the dispensation of justice.

If the IHC chief's ruling was meant to bury the controversy once and for all as one of Farah Hameed Dogar's lawyers said, it hasn't subsided even slightly the storm, or washed away the mud flung over Supreme Court Chief Justice Abdul Hameed Dogar. Rather the hullabaloo has raged further with a vengeance.

If Justice Aslam, who is retiring in March this year, were elevated to the Supreme Court, his promotion would be taken by many as an alleged reward for trying to extricate Justice Dogar from a complex tangle by according a judicial certificate to a blatant action. His three-year extension in service will be considered as a present for handing down the ruling in the case of enhancing 21 marks of Farah in her FSc papers through unprecedented re-evaluation and re-marking. However, if the IHC chief, otherwise enjoying a good reputation, went home on reaching the superannuating age of 62, his present judgment might be interpreted as fair and just by those who have described it as the "death of justice" and "a black chapter in the judicial history".

In his capacity as the chief justice of the apex court, Justice Dogar is to play a key role in the elevation of Justice Aslam to the Supreme Court. If his promotion materialises, it would be conveniently compared with the past appointment of Irshad Hasan Khan as Chief Election Commissioner (CEC) after his retirement as chief justice as it was always stated about it that while heading an enlarged Supreme Court bench he had not only validated Pervez Musharraf's October 1999 military coup but also given him three years to rule, and in return got three years as CEC.

Too optimistic were those who had their expectations hiked much after the IHC chief had refused to stay the proceedings in the National Assembly standing committee on education on the Farah Hameed Dogar case. Tormented by the refusal, a stay was secured from a single judge of the Supreme Court on Dec 5. It was all done by the government to save Justice Dogar from being constantly dragged in the controversy. However, the objective had not been achieved.

The IHC direction to the education secretary and the controlling authority of the Federal Board of Intermediate & Secondary Education (FBISE) to consider the possibility of bringing an amendment to the FBISE rules to provide a procedure for re-evaluation of papers would have been plausible and laudable had it been issued after striking down the unique raise in Farah's marks. This would have been a perfect verdict that would have been widely hailed by the legal fraternity and other sections of the society. However, it is a fact that superior courts have been ruling in different cases that a certain illegality has been committed, which they are undoing but at the same time issue instructions to the concerned authority to frame rules or make laws for facilitation of the people.

If the "re-evaluation could serve as a check on arbitrariness, casualness and negligent attitude of the examiner", as the ruling said, it would benefit only the dominant people, who would be in a position to twist the arms of the chairmen of the examining boards to favour their kith and kin.

One would disagree with the IHC chief's observation that "to foster the principle of justice a wrong has to be remedied." In fact, a wrong has been condoned and reinforced in the instant case. A bad judicial precedent has been set. The chiefs of the examining boards and universities have now been armed with extraordinary authority. Its exercise would benefit only the children of the privileged, rich and wealthy people. The ruling has paved the way for favouritism, nepotism and discrimination. The News

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