Debating seniority

Published January 8, 2022

IT is a moment to celebrate. Justice Ayesha A. Malik’s nomination to the Supreme Court marks the first time in our history that a woman judge has been approved for elevation to the highest court in the land.

Among the judgements she has authored as a judge of the Lahore High Court is the landmark verdict that declared the two-finger ‘virginity’ test as “illegal and against the Constitution” — an indictment of a system that subjected rape victims to additional distress and humiliation. Justice Malik’s competence in other areas of the law has also been hailed. But for many activists, what counts most is the hope she personifies as a woman judge who would be able to empathise more deeply than her male colleagues with the hardships and trauma faced by women seeking justice.

Secondly, in a country which last year ranked third from the bottom in terms of male-female parity, the Judicial Commission of Pakistan’s vote in her favour can also be seen as a step towards gender equality in the highest echelons of the judiciary itself. With Pakistan approaching the 75th anniversary of its birth, this fundamental right has been long overdue.

But it has not been smooth sailing. And the ‘impediment’ — the principle of seniority — merits a serious discussion by all stakeholders. Justice Malik’s nomination was rejected last September due to a lack of consensus in the JCP. This year too the vote in her favour was razor-thin: 5-4. The opposition to her proposed appointment has not been without reason and has to led to calls for protests and boycotts by several lawyers including bar councils.

Justice Malik is the fourth most senior judge at the Lahore High Court, and her nomination is being seen as an out-of-turn promotion. Similar controversy had been stirred when Justice Muhammad Ali Mazhar, a relatively junior judge at the Sindh High Court, was appointed to the Supreme Court last year after the JCP voted 5-4 in his favour too. There have been several other cases where the seniority standard has been bypassed.

One of the judges that opposed the nominations of both Justice Malik and Justice Mazhar was Justice Faez Isa. In a recent letter to the chief justice of Pakistan, Justice Isa stated: “Once the nomination and selection criteria are determined, it will help dispel misgivings that arbitrariness in the selection process holds sway.” There is much logic to what is essentially Justice Isa’s call for transparency in judicial appointments.

But that task, as previously suggested by senior lawyers, cannot be achieved without the input of those representing the legal system, parliament and civil society as well as others. It is only by establishing in clear terms what qualifies a judge for a higher position, and how one judge is more qualified than the other, that controversies will disappear and nominations such as Justice Malik’s can be celebrated without reservations.

Published in Dawn, January 8th, 2022

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