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Mode of judges’ appointment under 18th Amendment criticised

Mode of judges’ appointment under 18th Amendment criticised

ISLAMABAD: The procedure of appointment of superior court judges introduced through the 18th Amendment came under severe criticism on Tuesday and a petitioner termed it illegal, unconstitutional and against the Islamic concepts.

“I have objections to the Judicial Commission Rules 2010 introduced under Article 175A of the constitution, which empower the chief justice to ‘nominate’ names for their appointment as judges,” argued A.K. Dogar, who is representing the Pakistan Lawyers Forum, before a 17-judge full court of the Supreme Court hearing challenges to the 18th and 21st amendment to the constitution. The amendments provide for the procedure of appointment of the judges and establishment of military courts to try terrorists, respectively.

The system in vogue, he argued, did not provide an opportunity to a lawyer who enjoyed professional standing of considerable time to become a judge if he was not well- connected or belonged to a poor family.

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“It is the fundamental right of lawyers having an experience of at least 10 years, who are otherwise qualified under Article 192(3) of the constitution, to be considered for the post of high court judge,” he said.

Referring to the practice in the UK, he said that the lord chancellor invited applications from lawyers, solicitors and even academics for the post of a judge because it was their right to be given an opportunity to serve the country.

“Article 175A of the constitution that provides for procedure for the appointment of the judges should not be interpreted in isolation. Rather it should be read with Article 2A (objectives resolution), Article 9 (security of person) and Article 25 (equality of citizens),” he argued.

“You want to say that the procedure of the judges’ appointment is an elitist system under which members of the Judicial Commission select people of their own kind,” asked Justice Sarmad Jalal Osmany.

“In a blunt language, yes,” replied Mr Dogar. “It is a sad story that only those individuals were chosen (for the post) who have connections or whose fathers and grandfathers had also served as judges,” he said. Arbitrary nomination, without any system of selection, was illegal, unconstitutional and un-Islamic and violated the principles of equality and social justice, he added.

He said once he was asked by former chief justice of the Lahore High Court, Iftikhar Hussain Chaudhry, to suggest names of lawyers who must be over 50 years for appointment as judges and then referred to the famous national Reconciliation Ordinance case of 2010 in which the Supreme Court had held that any action in violation of Article 25 would be considered void ab initio (illegal from the beginning).

Coming back to the practice in the UK, the counsel said that the Royal Court of Justice did not have a peon or a court assistant to pick up court files and judges themselves do the work. Similarly, the judges are not provided cars or drivers rather they travel on underground trains or buses to go to the court.

He said that judges in India were paid a salary of Rs80,000, which was equivalent to Rs120,000 in Pakistani currency. Whereas in Pakistan a high court judge gets a hefty salary of over Rs700,000.

Justice Anwar Zaheer Jamali asked what the salaries of judges had any relevance with the 18th Amendment. “We were not sitting here to analyse the appointment of judges,” he said.

“Are you suggesting striking down the 18th Amendment on the basis of the judges’ salaries.”

Mr Dogar said he would not mention the salary of the judges but then stated that the lowest category in the judiciary was required to wear Jinnah cap and the national dress.

“This is the outward manifestation of the colonial West.”

“You want to say that the English have given their mindset to us but kept with them the Islamic way of thinking,” Justice Osmany asked.

Justice Ijaz Chaudhry observed that judges had become slave to the system that was why litigants never got justice and sometimes had to wait for 36 years in search of justice.

Published in Dawn, May 27th, 2015

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