ISLAMABAD: The Supreme Court was told on Monday that the previous
method for appointment of judges was bogus and based on the pick and
choose policy of the government. A 17-member larger bench of the apex
court, headed by Chief Justice Iftikhar Muhammad Chaudhry resumed
hearing in identical petitions, challenging the constitutional
amendments made under the 18th Amendment, with particular reference to
formation of Judicial Commission for the appointment of judges in the
superior judiciary. During the hearing, Justice Iftikhar Muhammad
Chaudhry remarked that with the extinction of party elections in the
political parties, there will be no command of the Constitution among
them. Justice Javed Iqbal said that first it was Germany which made
the basic constitutional structure a part of its constitution — that
basics of the constitution and amendments to the constitution are two
different things. The decisions of our courts and Indian courts on
this issue came very late. Counsel for the Lawyers Forum A K Dogar
while commencing his arguments submitted that the previous method for
appointment of judges was bogus and based on the pick and choose
policy of the government.
He contended that vacancies for judges should be advertised so that
all lawyers could have the opportunity to exercise their fundamental
right, guaranteed in the Constitution.
"There can be no multi-based appointment of judges in a high court,
unless there is open competition from the widest range of eligible
candidates," Dogar said.
The learned counsel cited the example of the United Kingdom where
there is a Judicial Appointment Commission and Selecting Commission
for the appointment of judges to the high court. He further submitted
that these commissions welcome applications from the academics,
solicitors and lawyers.
At this point, Justice Asif Saeed Khosa said: "You are citing Britain
but it happens there in the lower courts, and the same method is
practised here." Dogar submitted that every citizen who is
constitutionally qualified has a right to be considered for
appointment as a judge of the high court because the principle of
equality of opportunity guaranteed in Article 2-A and 25 of the
Constitution that requires that no lawyer or other person should be
denied his fundamental right to public appointment.
"Candidates for the superior judiciary be invited through newspapers
and on examination written or oral held along the same lines through
the Central Superior Services (CSS)," Dogar said.
The learned counsel while quoting a judgment of the Supreme Court in
1997 said that the judgment had ruled that it is the right of a
citizen to compete and participate in the appointment process of the
judges of the superior judiciary.
Opposing the representation of executive in the Judicial Commission
for the appointment of judges, the learned counsel submitted that the
presence of the law minister and attorney general could superimpose
the mighty executive over the judiciary.
"Parliament is a political institution, elected on a political basis
and therefore, the political influence will politicise the judiciary,"
Dogar said adding that he will have no objection to the judicial
commission if both the representatives of the executive are excluded.
Referring to the renaming of NWFP as Khyber Pakhtunkhwa, A K Dogar
contended that the federal government has no right to change the name
of the province adding that no name in a Muslim country should be
based on ethnic or tribal considerations.
He contended that the provinces are federating units, they join a
union but not unite them adding that the federal government cannot
change the names or area of the province.
Concluding his arguments, A K Dogar stressed that things should be
done so that not only the judiciary but the country is made strong and
viable.
Zulfiqar Naqvi, another petitioner and President High Court Bar
Rawalpindi while appearing before the court submitted that he had
prepared his formulation, opposing the formation of the Judicial
Commission under the 18th Amendment as well as inclusion of the
representatives of the executive in the said commission. However, he
said as counsel for other petitioners had already argued on these
matters he will not argue before the bench.
The counsel however expressed full confidence in the judiciary adding
that the people of the whole country also repose full confidence in
the judiciary and are determined to uphold the cause of its
independence, rule of law and supremacy of the Constitution.
The court adjourned the hearing till today (Tuesday).
Later, talking to newsmen outside the court, A K Dogar said the rights
of political workers have been encroached upon through abolishing the
elections within the political parties, adding how can law contain it
seeing the same has been banished from the Constitution.
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