JCP approves Justice Ayesha Malik's elevation to Supreme Court

Published January 6, 2022
This file photo shows Justice Ayesha Malik. — DawnNewsTV
This file photo shows Justice Ayesha Malik. — DawnNewsTV

The Judicial Com­mis­sion of Pakistan (JCP) on Thursday approved the elevation of Lahore High Court Justice Ayesha A. Malik to the Supreme Court, which will make her the country's first-ever woman judge to sit on the apex court.

Chief Justice of Pakistan Gulzar Ahmed chaired the JCP meeting during which Justice Malik's elevation was approved by a majority of five votes against four, an informed source told Dawn.

This is the second time that the JCP held a meeting to decide on Justice Malik's elevation. A lack of consensus during an extended meeting of the JCP on Sept 9 last year had forced the commission to reject her elevation.

During that meeting, four members of the eight-member JCP had opposed the proposal to elevate Justice Malik – the fourth most senior judge of the LHC – while an equal number had supported it.

At the time, the Supreme Court Bar Association President Abdul Latif Afridi had called a countrywide protest to express anger over, what the legal fraternity perceived, disregard to the seniority principle in the appointment of judges to the apex court.

The same criticism was levelled this time as well, with the legal fraternity calling on the chief justice to postpone Thursday’s JCP meeting. In case the meeting was not called off, the Pakistan Bar Council (PBC) and all bar associations said they would boycott all court proceedings, from the superior judiciary to the lower courts.

Meanwhile, reactions poured in from all quarters as netizens, politicians and lawyers congratulated Justice Malik on her nomination.

Legal adviser for the International Commission of Jurists, Reema Omer, said that Justice Malik's presence would enrich the apex court in "many ways" in addition to "finally bringing a woman’s perspective to the highest court of Pakistan that has shockingly been missing for 74 years."

She added that much work needed to be done to ensure that such nominations were not at the "whim of the current chief justice of the day".

"Impediments such as opacity and lack of criteria in appointments process, an all-men judicial commission, and sexism in the legal community continue to exclude women from the judiciary," she said.

Director of Bolo Bhi, an advocacy forum for digital rights, Usama Khilji, expressed the hope that many more women would make it to the "top corridors of decision-making" in Pakistan.

Parliamentary Secretary for Law and Justice Maleeka Bokhari called it an important and defining moment in the country's history.

Journalist Maria Memon simply said: "History has been made."

Lawyer Usama Khawar said that he wanted at least half of the judges at the apex court to be women.

Seniority not legal requirement, nor convention, says Women in Law Pakistan

Earlier this week, the Women in Law Pakistan initiative issued a statement with respect to the seniority debate on Justice Malik's appointment, 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 stated 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 made 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 added that “seniority as an interim measure will halt conversation for holistic reforms actually needed for greater transparency and representation”.

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