ISLAMABAD: What the common litigant desires most is prompt justice and is least bothered about the cherished goals of independence of the judiciary, a senior counsel representing the government argued before the Supreme Court on Tuesday.

“The only criterion to judge the excellence of a judge is to see how he dispenses justice,” Khalid Anwar said as he argued on behalf of the federal government during a hearing of challenges to the 18th and the 21st amendments before a 17-judge full court.

The full court, headed by Chief Justice Nasirul Mulk, is hearing a set of challenges to the 18th and the 21st amendments, challenging the appointment procedure of superior court judges as well as the establishment of military courts to try hardened terrorists, respectively.

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Mr Anwar was responding to an observation made by Justice Saqib Nisar and summarised his arguments by saying that the people were the stakeholders in the system of judges’ appointment, which the parliament ensures by safeguarding their interest.

The parliament is the embodiment of democracy – a system which can be described as a lynchpin or most pivotal part of the basic structure of the Pakistan constitution, Mr Anwar argued.

“There are many parliamentarians who are either bad, corrupt or semi-literate — a situation that will be rectified or improved with the passage of time but being an institution, the parliament is the embodiment of the democratic system.”

Govt counsel argues parliamentary commission gives people sense of involvement in appointment of judges

The democratic system cannot be replaced by a kingship or any other system because parliament never abrogates the constitution, only dictators do, Mr Anwar said while emphasising the need for mutual respect among the three pillars of the state – the executive, legislature and the judiciary.

There can be friction between the executive and the judiciary, but not between the judiciary and parliament, the counsel emphasised.

Referring to the insertion of the eight-member bipartisan parliamentary committee in Article 175A of the Constitution – a provision which deals with the appointment of superior court judges, the counsel said the committee was a toothless body with zero powers, which could not nominate or appoint any unsuitable person as a judge. But the committee gave a sense of ownership to parliament in the process of judges’ appointment, especially when the judiciary held primacy in the matter. “It helps with developing a congenial atmosphere,” Mr Anwar said.

There is no country in the world where the judiciary has the power to appoint judges though Pakistan is a unique flag bearer, leading the way in this regard, he said. In many countries, parliament has the final say on who to appoint and who to drop, the counsel said, adding that Article 175-A, through the 18th Amendment had brought a fundamental change in the appointment procedure of the judges, which was essentially the job of the executive.

The power to appoint was earlier restricted through the 1996 Al-Jihad Trust case, when the Supreme Court restricted the executive to appointing judges in consultation with the chief justice.

Now, with the introduction of the judicial commission, the amendment has further restricted the chief justice to suggest names after consultations with his colleagues, even if the chief justice is wisest of all.

Justice Asif Saeed Khosa conceded that a lot was sacrificed by the executive and the legislature when they parted with powers in the appointment procedure, which should also appreciated.

During the proceedings, Justice Qazi Faez Isa observed that when the parliamentary committee was deferring by sending back its suggestions to the judicial commission, it should also be magnanimous enough to consider the reasons recorded by the committee.

But the chief justice observed that the committee sends its suggestion to the commission as a matter of courtesy and not for the consideration of its recommendations.

Referring to the famous 1973 Kasavananda Bharti case through which the Indian Supreme Court had outlined the basic structure theory by striking down constitutional provisions, Mr Anwar said the judgment created a third category of power, called the basic structure theory, which never existed in the Indian constitution before.

Published in Dawn, May 20th, 2015

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