The Women in Law Pakistan initiative has issued a statement with respect to the seniority debate on the appointment of Justice Ayesha A. Malik of the Lahore High Court (LHC) to the apex court, saying the idea that seniority is a legal requirement is a myth and “there is no requirement in law and Constitution to appoint the senior most judge to the Supreme Court”.

The initiative states that “at least 41 times judges have been appointed to the Supreme Court without them being most senior. There is, therefore, no such custom either. ‘Seniority’, is at best a mere demand of some members of the Bars at the moment and has no legal basis”.

The initiative makes a reference to Article 175-A(3) of the Constitution of Pakistan which “speaks of seniority only in relation to the appointment of the Chief Justice of Pakistan”, adding that as per Article 177 (2) of the Constitution, to be eligible for appointment as a judge of Supreme Court, a person must: be a citizen of Pakistan; been a judge of the HC for five years, or been an advocate of the HC for 15 years.

“Absence of the words, ‘the most senior’ in Article 177 for appointment of Judges of the SC shows that seniority of a Judge in the High Court is not an essential condition for their appointment as a Judge of the SC.”

The initiative adds that “seniority as an interim measure will halt conversation for holistic reforms actually needed for greater transparency and representation”.

The statement comes as a section of 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.

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

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Updated 19 May, 2022

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