ISLAMABAD: The Judicial Commission of Pakistan (JCP) will meet on Jan 6 to complete an unfinished agenda as Chief Justice of Pakistan (CJP) Gulzar Ahmed has proposed once again the name of Justice Ayesha A. Malik of the Lahore High Court for elevation as a judge of the Supreme Court, an informed source confided to Dawn on Friday.
A lack of consensus during an extended meeting on Sept 9 had forced the JCP to reject the elevation of Justice Malik — the fourth most senior judge of the LHC — to enter the Supreme Court as the first-ever woman judge in the country’s judicial history.
Reacting swiftly, the Pakistan Bar Council’s (PBC) Vice chairman expressed reservations and concern over the move to what he called an attempt to violate the seniority principle for elevation of judges to the Supreme Court and the high courts.
In a statement, Khush Dil Khan emphasised that it was a consistent stance of the legal fraternity that judges should be elevated on the basis of seniority in all the courts and that the practice to “pick and choose” should stop.
Khush Dil Khan was of the view that if the seniority principle was violated for elevation to the apex court, the high courts and lower courts, as well as the legal fraternity, would resist it forcefully.
Four members of the eight-member JCP had opposed the proposal to elevate Justice Ayesha Malik when it met on Sept 9, while an equal number supported it.
Justice Maqbool Baqar, Justice Sardar Tariq Masood, former judge Dost Mohammad Khan and a representative of the Pakistan Bar Council (PBC), Akhtar Hussain, had opposed the idea whereas the CJP, Justice Umar Ata Bandial, Federal Law Minister Barrister Dr Farogh Naseem and Attorney General (AGP) Khalid Jawed Khan had favoured Justice Malik.
Justice Qazi Faez Isa — another JCP member — was unable to take part in the proceedings as he was out of the country.
While the JCP was holding its session on Sept 9, lawyers had arranged a protest and convention in a nearby office of the Supreme Court Bar Association (SCBA). They accused the judiciary of favouritism in the appointment of superior court judges and thus harming its image.
Through a resolution, the convention asked the JCP to adhere to the seniority principle in appointments to the apex court from the provincial high courts until such time as fair, transparent and objective criteria for appointment of judges at all levels were framed in consultation with all stakeholders and appropriate amendments to the Judicial Commission Rules.
But during the JCP meeting on Sept 9, Chief Justice Gulzar Ahmed had described the event as a historic day when a woman judge had been nominated to the apex court.
Justice Umar Ata Bandial observed that the legal fraternity had to progress and decide whether “we had the courage and strength to take a step in favour of a woman”, emphasising that a uniform standard be applied for men and women for selection. “The woman judge cannot be stopped on the basis of seniority or lack of it if she meets the standards of competence or capacity or independence.”
Justice Bandial said the nominee (Justice Malik) was known to be fiercely independent and probably that was the reason why the Bar was opposing her elevation and stalling the process.
Justice Sardar Tariq Masood, also a member of the JCP, observed that whenever the seniority principle was ignored for the appointment of judges, the judiciary’s independence stood compromised and its fallout derailed democracy.
Justice Masood, who had opposed the appointment of Justice Malik, said it was unfortunate that “without valid reasons”, the three judges of the LHC senior to Justice Ayesha Malik were being ignored.
Published in Dawn, December 25th, 2021