31st August 2021

Staff report

Attorney-General of Pakistan (AGP) Khalid Jawed Khan has said he will propose earmarking at least one seat for a woman judge in the apex court in the next meeting of the Judicial Commission of Pakistan (JCP).

“I intend to propose that the JCP acknowledges and reiterates the need for appointment of more women in superior judiciary and confirm that henceforth there shall always be at least one seat earmarked for appointment of a woman judge in the supreme court,” he wrote in a letter to President of the Supreme Court Bar Association of Pakistan (SCBAP) Latif Afridi and Vice-Chair of the Pakistan Bar Council (PBC) Khushdil Khan.

The JCP is scheduled to meet on September 9 to consider the appointment of possibly the first female judge of the Supreme Court, Justice Ayesha Malik. The SCBAP has already announced a nationwide boycott of court proceedings and locking down the Supreme Court to oppose Justice Malik’s elevation.

Lawyers’ bodies have said that since Justice Malik is fourth in the seniority list in the Lahore High Court, her appointment will be against the principal of seniority as laid down by the apex court in the Al-Jehad Trust case.

In his letter to the SCBAP and PBC, Khan noted that three female judges in India will take oath as Justices of the Indian Supreme Court on August 31.

“These include Justice Banglore Venkataramiah Nagarathna who was third in line in seniority in Karnataka high court and will become the first female chief justice of India in September, 2027.”

The AGP also urged both lawyers’ bodies to devise a criteria regarding the appointment of judges in the apex court, which he will present it in the next JCP meeting to quell disharmony on this matter.

“There is urgent need to explore common grounds so that the process of the appointments to the apex court is not overshadowed by disharmony between bar and bench as is being presently witnessed,” the country’s top law officer wrote.

The debate on the criteria of appointment of judges in the Supreme Court has lately intensified. A larger section of lawyers, including the current leadership of the SCBAP and PBC have urged Chief Justice of Pakistan Gulzar Ahmed to strictly follow the principle of seniority while proposing the names of high court judges for elevation in the apex court.

On the other hand, few senior lawyers are of the view that seniority should not be the sole criteria for appointments in the top court, rather competence and integrity of the judges should be jointly considered before promoting them.

In a statement last week, the Women in Law (WIL) Initiative Pakistan urged the legal fraternity, Bar Councils, Bar Associations and other stakeholders to withdraw the demand for adhering to the seniority principle and to refrain from taking any measures that would render current judicial nominations contentious.

The AGP, while addressing the burning question of seniority versus competence, said that the seniority principle carries legitimacy that needs no other justification. He however added that this principle is neither a constitutional benchmark nor is it borne by past practices.

“There is also force in the argument that the Supreme Court being last Court and comprising of only seventeen judges, the ideal principle of appointments should be blend of seniority and merit. While there is an objective standard for determination of seniority, merit is a more flexible subject and may vary its content. Thus, there is need to evolve objective criteria of merit so that the semblance or possibility of any favouritism and nepotism in the process is completely excluded.”

The AGP also proposed a set of factors to evaluate the performance of a high court judge. The proposed criteria included reputation and public perception about integrity, independence and impartiality, health condition, length of service, number of cases heard and judgments delivered, average duration between final hearing and delivery of judgment, commitment to constitutional values and fundamental rights, range and diversity of work, expertise in particular area, command over language, temperament, and demeanor towards colleagues, the bar and the litigants.

Khan requested the SCBAP and PBC to convey to him the collective views of the bar so that these important constitutional matters be resolved amicably.


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