January 9th, 2022
By Ahmed Saeed & Hamid Riaz
The Judicial Commission of Pakistan (JCP) made history on January 6, 2022, by confirming the appointment of Justice Ayesha Malik as the first female judge of the Supreme Court of Pakistan, though the appointment is still pending parliamentary approval it is largely expected to be finalized.
But the appointment was not without controversy. Justice Ayesha’s appointment has been vehemently opposed by apex lawyers’ bodies including the Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA). Both the PBC and the SCBA boycotted courts nationwide to protest her appointment. These bodies have argued that Justice Ayesha is fourth on the seniority list and her appointment violates the principle of seniority.
Voicepk approached congregations of lawyers gathered to vote in the District Bar Association elections to find out what side the lawyers in general feel about this clash between the bar and bench.
In support of Ayesha Malik
A majority of the young lawyers interviewed by Voicepk not only supported but also celebrated the appointment of Pakistan’s first female Supreme Court Judge. The young lawyers’ community seemed acutely aware of the extreme gender imbalance in the higher judiciary which stands at a dismal 5.3%.
Several young lawyers were of the view that “Women are better equipped to understand and deal with issues pertaining to other women,” and the appointment of a female face to the highest court will benefit victims of gender-based crime.
Senior lawyers praised Justice Ayesha’s legal acumen especially in cases related to family law, something which many of them have witnessed firsthand during her decade-long stint in the Lahore High Court (LHC).
“She is a highly competent juror. Her judgment on interpretery suites is an absolute game-changer,” stated a senior lawyer who claimed to have worked closely with her.
A vast majority of those who supported Justice Ayesha Malik’s appointment pointed out that “out of the last seven judges appointed to the apex court five was appointed in violation of the so-called principle of seniority” accusing the Bar Associations’/Councils’ of hypocrisy.
Several young female lawyers were of the view that this uncalled for opposition of Justice Malik’s appointment by lawyers’ bodies was “itself evidence enough of the gender bias in the community”.
It is pertinent to note that only 2% of all decision-making positions in the country’s bar associations are occupied by female lawyers. Hence it is not surprising why so many young female lawyers consider Justice Malik’s appointment a win for all women in the legal profession.
Against the appointment of Ayesha Malik
Almost all lawyers who opposed Justice Malik’s appointment argued for the principle of seniority. “I am not against Justice Ayesha. I am against her appointment because it violates the principle of seniority. She could have been elevated to the apex court on her own turn and she would still have been the first female Judge of the SC,” states a young female lawyer while refuting allegations of gender bias.
Many who initially opposed Justice Ayesha’s Malik’s appointment have accepted the JCP’s decision though with seemingly valid reservations.
“The bench should make a clear criterion for the appointment of judges to the apex court so that these decisions are not left to the arbitrary will of the sitting Chief Justice. On that note I want to congratulate Ayesha Malik,” said a senior lawyer.
Despite the validity of these legal arguments, a tinge of sexism and gender discrimination seemed to surface in those opposing Justice Malik’s appointment.
A significant number of them even expressed views like “Men are inherently better than women,” and thus deserve all seats in the apex court.