‘Judicial posts should be advertised’

ISLAMABAD: In a surprising twist, Lawyers’ Forum counsel A.K. Dogar has proposed a new method of appointing judges. In his arguments challenging the 18th constitutional amendment before the Supreme Court, Dogar said the previous system of appointing judges was also flawed and suggested that judicial vacancies should be advertised instead.

A 17-member SC bench headed by Chief Justice Iftikhar Chaudhry is hearing 21 petitions challenging the eighteenth amendment.

Dogar said he admired the concept of the judicial commission but was opposed to the inclusion of the law minister and the attorney general since both are representatives of the executive. He also raised fears regarding the parliamentary commission. “The court will be politicised by the parliamentary committee; if the roles of the parliamentary committee, law minister and attorney general are eliminated, I will have no objection to the judicial commission.” The counsel insisted that the real issue that needed to be addressed was who would nominate the judges. And here, Dogar put forward his own proposal. “Vacant posts in the higher judiciary should be filled through advertisement because without open competition amongst the candidates, the process of selection will remain flawed,” he insisted.

The competition, explained Dogar, could be conducted by the judicial commission by means of oral and written tests. “Under the present system, those lawyers who lack money and connections cannot be nominated for the post of judge even if they are competent.” In support of his proposal, Dogar cited Supreme Court decisions stating that vacancies cannot be filled without advertisement.

Moving on to the doing away of the provision regarding Intra-party elections, Dogar pleaded that Intra-party elections was part of the democratic process and suggested that these should be conducted by the Election Commission of Pakistan. On this, Chief Justice Iftikhar Chaudhry remarked that removing the requirement of intra-party elections has undermined the command of the constitution.

Dogar also took exception to the disqualifications for lawmakers set out in the 18th amendment. He insisted it was unethical and un-Islamic for convicted criminals to be eligible for membership of the Parliament. Citing the example of the UK, where a person convicted for up to a year, is barred from public office for life, he questioned the advisability of having just a five-year bar for such “criminals” in Pakistan. “The conviction does not vanish with the passage of time unless the court sets it aside,” he argued.

The counsel also argued against the changing of the name of Khyber Pakhtunkhwa, saying that Islamic countries do not name areas based on ethnicity and, as such, the federation cannot change the name of any of its component parts.

In his closing arguments, Dogar said the constitution is superior to the parliament and that the apex court has the authority to review constitutional amendments.

Rawalpindi High Court counsel Zulfiqar Naqvi then took to the podium and told the bench that he supported the formulations earlier presented by lawyers Akram Sheikh and Hamid Khan, after which the chief justice adjourned proceedings till Tuesday (today).

Published in The Express Tribune, July 13^th, 2010.