Pakistan Bar Council plans to resist junior judge Ayesha Malik’s rise to SC

Published December 30, 2021
A file photo of Justice Ayesha A. Malik. — Dawn
A file photo of Justice Ayesha A. Malik. — Dawn

ISLAMABAD: Pakistan’s legal fraternity has started gearing up to put up effective resistance to what they believe another attempt to elevate a junior judge to the Supreme Court by superseding at least three competent, senior judges.

While the Judicial Commission of Pakistan (JCP) has called its meeting on Jan 5, 2022 to complete the unfinished agenda to elevate Justice Ayesha A. Malik of the Lahore High Court to the SC, the Pakistan Bar Council (PBC) has called a meeting on Jan 3 to consider the matter and chalk out an appropriate strategy.

It may be recalled that on Sept 9, lack of consensus during an exte­nded meeting had forced the JCP to defer her elevation as the first-ever woman judge in Pakistan’s judicial history to enter the SC.

PBC Vice Chairman Khushdil Khan wrote letters to all the vice chairmen of executive committees, members of the JCP from the lawyers’ side, presidents of the Supreme Court Bar Association (SCBA) and the provincial and Islamabad Bar Councils and high court bar associations to attend the joint meeting scheduled to be held on Monday at PBC office.

The letter issued to different bar associations said the joint meeting was called to consider the elevation of the junior judge to the SC in what they called violation of the seniority principle. The letters recalled how Chief Justice of Pakistan (CJP) Gulzar Ahmed again proposed the name of the junior judge from the LHC while superseding three senior judges including Chief Justice of the LHC Mohammad Ameer Bhatti.

The JCP was meeting on Jan 5 to consider the same name that had been earlier ‘disapproved’ by the JCP, the letter said. In this scenario, the joint meeting of lawyers was being called to chalk out a future course of action.

Balochistan High Court Bar Association President Majeed Kakar and PBC member from Balochistan Munir Kakar also dubbed the elevation of the junior judge as an attempt to trample the seniority principle. They emphasised that Justice Malik was being denied the right to become the chief justice of the LHC.

Instead of her, the most deserving judge who should be elevated to the Supreme Court was Islamabad High Court (IHC) Chief Justice Athar Minallah, they observed, adding that he should be nominated by the JCP to become the judge of the top court.

Meanwhile, a meeting of the executive committee of the PBC under the chairmanship of Mohammad Masood Chishti in its Wednesday meeting also adopted a resolution endorsing the statement of its vice chairman highlighting the need to adhere to the seniority principle and to launch countrywide protests.

The resolution also unanimously praised the illustrious career of former Justice Sarmad Jalal Usmani who became JCP member, stating that he remained an independent judge and refused to take oath under the Provisional Constitution Order and held his ground against the worst form of dictatorship and always stood for the rule of law and the Constitution while adhering to the principle of good conscience and justice.

After his appointment as JC member, the PBC and public at large expect the same level of steadfastness and perseverance for principle of seniority in appointment of judges to the superior judiciary, the resolution stated, adding that the council reiterated its consistent stance to stand for the principle of seniority.

Earlier on Sept 9, lack of consensus during an extended meeting had compelled the JCP to defer her elevation. As a consequence, PBC Vice Chairman Khushdil Khan had expressed his serious reservations and concerns regarding the move to, what he called an attempt to violate the seniority principle for elevation of judges to the Supreme Court and High Court. In a statement, the PBC vice chairman also emphasised that it was a consistent stance of the legal fraternity that judges should be elevated/appointed on the principle of seniority in all courts and that the ‘pick and choose’ practice must be stopped.

Four of the eight JCP members on Sept 9 namely Justice Maqbool Baqar, Justice Sardar Tariq Masood, former judge Dost Mohammad Khan and PBC representative Akhtar Hussain had opposed the idea, whereas the CJP, senior puisine judge Justice Umar Ata Bandial, Law Minister Barrister Farogh Naseem and Attorney General for Pakistan (AGP) Khalid Jawed Khan had favoured Justice Malik. Justice Qazi Faez Isa, another JCP member, however, was out of the country then.

When the JCP was meeting on Sept 9, the lawyers had also organised a protest and convention in a nearby SC Bar Association complex, in which they had accused the judiciary of favouritism due to its pick and choose practice in the appointments and thus harming the judiciary’s image.

In a resolution so adopted, the convention had asked the JCP to strictly adhere to the seniority principle in the judicial 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 including the Bar and the appropriate amendments to the Judicial Commission rules.

Published in Dawn, December 30th, 2021

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