ISLAMABAD: The legal fraternity has called on Chief Justice of Pakistan Gulzar Ahmed to postpone Thursday’s meeting of the Judicial Commission of Pakistan (JCP), scheduled to be held on January 6 to consider the elevation of Justice Ayesha A. Malik of the Lahore High Court (LHC) to the apex court.

In case the meeting is not called off, the Pakistan Bar Council (PBC) and all bar associations would boycott all court proceedings, from the superior judiciary to the lower courts.

This was announced by PBC Vice Chairman Khushdil Khan and PBC Executive Committee Chairman Muhammad Masood Chishti and others after a representative meeting on Monday.

The Jan 6 session of the JCP was summoned after the CJP once again proposed the name of Justice Ayesha A Malik for elevation. The last time this question came before the JCP on Sept 9, a lack of consensus during an extended meeting forced the commission to defer the appointment of Justice Malik — who is fourth in the seniority order of the Lahore High Court (LHC) — to enter the Supreme Court as the first-ever woman judge in the country’s judicial history.

PBC maintains Justice Ayesha’s proposed elevation violates seniority; calls for reforms in appointment rules

Mr Khan insisted PBC or any bar association was not targeting Justice Ayesha Malik for her gender, adding that they respected all and harboured no ill-will against any individual. “Our emphasis is only to the extent of respecting the seniority principle. We believe parliament should amend the Constitution and enhance the present strength of 17 judges in the Supreme Court by adding two or more women judges at the top.:

He also questioned why Justice Mussarat Hillali of the Peshawar High Court was not being considered for elevation, when she was senior to Justice Malik.

The representative meeting was of the view that the nomination of Justice Ayesha Malik for appointment in the Supreme Court violated the seniority principle. It superseded three judges of the Lahore High Court, including the chief justice of the concerned high court, who were not only senior to her in service but also terms of their legal practice before their elevation to the high court.

Monday’s meeting also resolved to approach parliament as well as political parties to lobby for amendments in articles 175A and 209 of the Constitution that deal with the appointment of the judges in the superior judiciary and their removal.

Article 175-A deals with the appointment procedure of the judges in the superior courts while Article 209 provides a forum for the removal of a superior court judge.

The meeting recalled the CJP’s own principle that no chief justice should initiate the process of elevation or the appointment of judges in the superior judiciary when he was nearing the end of his tenure.

The incumbent CJP has less than a month remaining as he is scheduled for superannuation on Feb 1, Mr Khan recalled.

Khushdil Khan said that Supreme Court Bar Association (SCBA) President Ahsan Bhoon had also been consulted over the decision to boycott. When asked whether the PBC would host its traditional send-off dinner in honour of the outgoing CJP if their demand was not met, he said the council would consider this at the appropriate time.

He also said that representatives of bar councils in the JCP had been calling for amendments to the Judicial Commission Rules 1980 for the last three years since these rules were sketchy and consisted of only ten lines regarding the procedure of appointment the judges in the superior judiciary.

Mr Khan said that since the legal fraternity’s “valid and genuine demands” were not being heeded, they would ask that no appointments should be made to the Supreme Court until a detailed criteria or guidelines regarding the consideration of the seniority principle were included and amendments made to the JCP rules.

He said the bar stands by the seniority principle for the purposes of elevation and appointments of judges to the Supreme Court, as also laid down in the 1996 Al-Jehad Trust case.

Mr Khan said he believed that this violation would create divisions, not just between bar and bench, but will also foster further dissent and frustration within the judiciary. This view is further fortified by the prevailing situation in the Sindh High Court, he said.

Published in Dawn, January 4th, 2022

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