Principle of seniority

Published August 14, 2021

FOR the first time in the country’s history, a woman judge is set to be elevated to the Supreme Court.

Prior to this, an invisible barrier of sorts existed for women in the higher judiciary, but with the nomination to the Supreme Court of Justice Ayesha Malik, whose professional excellence has been lauded in legal circles and beyond, it appears that the judicial glass ceiling will finally be shattered.

Indeed, our judicial system should be more inclusive, and it has miles to go before it can correct the serious gender imbalances it contains. But Justice Malik’s elevation from the Lahore High Court to the top court means that she has superseded other judges. Much like the elevation of Justice Muhammad Ali Mazhar of the Sindh High Court — an appointment that went against the principle of seniority and stirred controversy — Justice Malik’s appointment, too, has been questioned.

Read: Crisis in the making

Ironically, the flouting of this principle has also prevented women from rising in the judicial ranks in the first place. Had it not been disregarded, there would have been a woman chief justice in the Lahore High Court and a Supreme Court judge in 2002-2003. Instead, Justice Fakhrunissa Khokar was bypassed. If the principle of seniority was adhered to, Justice Malik would have made her way to the top position in the Lahore High Court and then to the Supreme Court in due course. At present, she ranks fourth in seniority at the Lahore High Court and her appointment means that a number of more senior judges from the other high courts too have been bypassed — for instance, the chief justices of the Sindh High Court and the Islamabad High Court.

It is unclear why the Judicial Commission of Pakistan has overlooked these judges, but it is evident that the process — which is designed to rule out arbitrary selections — was not followed. It reflects a similar trend that has kept the upper echelons of the judiciary out of the reach of women judges. Once again, there is no doubt that Justice Malik enjoys a fine reputation as a judge. But an out-of-turn appointment can hardly be a win for the judiciary. No doubt, merit, as we have previously noted, is the best criterion in making appointments. However for that, the process of selection must be transparent and clearly defined and uniform standards closely adhered to so that there is no room for confusion or controversy.

Published in Dawn, August 14th, 2021

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