September 9th, 2021
By Ahmed Saeed
The judicial commission of Pakistan (JCP) has failed approve the appointment of justice Ayesha Malik as the first female judge of the apex court amidst lawyers’ bodies’ stringent opposition. The vote for her confirmation was tied with four members of the JCP voting in her favor while the remaining four voted against her, with Justice Qazi Faez Esa absent. She was at no 4 on the seniority list in the Lahore high court.
The vote in the JCP became more about a battle between the principles of seniority and merit. With a dominant majority of bar representatives opposing her appointment as it violates the principle of seniority. Arguing that if Ayesha Malik can jump the que than such appointments might become the norm making judicial appointments a subjective process.
Out of the last seven appointments of judges in the SC, the rule of seniority was overlooked five times and junior judges were appointed as top court judges. More recently, Justice Muhammad Ali Mazhar, who was at number 5th in seniority, was elevated as an SC judge.
Women layers’ bodies on the other hand have expressed severe disappointment at the decision arguing that the principle of seniority applies not to the appointment but to the elevation of judges. They also lamented that the possible historical appointment of Pakistan’s first female judge fell victim to intra-judiciary bickering.
The lawyers observed a nationwide strike of the court proceedings on the call of the Supreme Court Bar Association. The lawyers stage a token sit-in in the premises of the Supreme court and boycotted the proceedings.
According to the LHC website, Justice Malik completed her basic education from Schools in Paris and New York and did her Senior Cambridge from the Karachi Grammar School, Karachi. She then did her A’ Level from Francis Holland School for Girls in London. She completed her B.Com from the Government College of Commerce & Economics, Karachi, and studied law at Pakistan College of Law, Lahore. She went on to do her LL.M from Harvard Law School, Cambridge, Massachusetts, U.S.A. where she was named a London H. Gammon Fellow 1998-1999 for outstanding merit.
During 1997-2001, she worked with an eminent lawyer and former SC judge Fakhruddin G. Ebrahim. She has been counsel, pro bono for NGOs involved in poverty alleviation programs, microfinance programs, and skills training programs.
She was appointed as additional judge LHC on March 27, 2012, and was confirmed as a permanent judge in 2013.
As a judge, she had adjudicated many important cases about civil liberties, women’s rights, and constitutional matters.
In 2016, justice Malik stopped the transfer of two sugar mills owned by the families of them PM Nawaz Sharif and CM Punjab Shahbaz Sharif.
In 2017, Justice Malik ordered the Election Commission of Pakistan (ECP) to ensure to collect that all mandatory information and declaration such as Educational qualifications, current occupation, and Dual nationality, NTN number, etc of the candidates. However, the SC suspended that order.
Justice Malik, through her judgments, tried to protect the weaker segments of society especially women from the patriarchal legislation and practices.
In January 2021, She abolished the two-finger test for examination of sexual assault survivors by declaring it illegal through a historic judgment. She also declared that the TFT violates the dignity of the female victim and was contradictory to Article 9 and Article 14 of the Constitution,
Why are Lawyers’ bodies opposing Justice Malik appointment
All major lawyers’ bodies including PBC and SCBA were vehemently opposing the appointment of Justice Malik as an SC judge, terming it against the principle of seniority as laid down by the apex court in the Al-Jehad Trust case.
Senior Lawyer and former president SCBA argued that non-adherence of seniority principle always had negative consequences for country’s democracy. He said that out-of-turn elevations are sometimes misused to manage and incentivize high court judges to get favorable judgments from them.
However, a women lawyers collective, Women in Law (WIL) Initiative Pakistan has strongly opposed the demand for strict adherence to the seniority principle in judicial appointments.
The WIL 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.