The legal fraternity on Friday launched a critical debate on Twitter regarding the first ever nomination and potential elevation of a female judge, Justice Ayesha Malik, to the Supreme Court (SC).
Lawyers announced on Thursday that they would protest the nomination as it violated the ‘seniority principle’, according to which the senior most judge in a high court makes it to the SC. The same day, the Judicial Commission of Pakistan (JCP) reached a stalemate in a meeting that voted on Justice Malik’s appointment. Four judges voted in favor, while four voted against it, which effectively stalled Malik’s advancement to the apex court.
Yasser Qureshi, a postdoctoral fellow at Oxford University, provided a critical overview of the decision. Qureshi said the decision was a ‘crisis of institutional leadership’ as lawyers have long called for the elevation process to be more transparent. He added that the SC has not addressed the burgeoning concerns of lawyers, junior judges, and bar leaders, which pushed them to resisting the elevation of relatively junior Justice Malik, even though she was highly competent for the job.
The rejection of Justice Ayesha Malik’s elevation to the Supreme Court is the outcome of a crisis of institutional leadership in the Supreme Court. A thread:
— Yasser Kureshi (@Y2Kureshi) September 9, 2021
Lawyer Salaar Khan echoed Quershi’s words and said that if the opposition was fuelled by the need for transparency, then that call should be applied to all nominations unilaterally. He added that Malik should be in the SC soon as she was a highly qualified member of the judiciary.
Justice Ayesha Malik’s nomination for elevation to the Supreme Court has not been approved.
If the Bar’s opposition was truly motivated solely by a desire for transparency, then it must demand the reasons for this with the same fervour that it first opposed her candidacy.
— Salaar Khan (@Brainmasalaar) September 9, 2021
Lawyer Mirza Moiz Baig added that he publicly championed for a clearer process that would reveal why a judge was considered for elevation whilst others were rejected.
The Judicial Commission of Pakistan has been unable to approve Justice Ayesha Malik’s nomination after a 4-4 split. I’ve been arguing since 2019 that the JCP’s minutes should be punished so that the public knows why a particular judge’s name is approved or rejected! Demanding 1/2
— Mirza Moiz Baig (@MoizBaig26) September 9, 2021
Advocate Zahrah Sehr Vayani pondered over the gendered nature of the verdict. Vayani said that it was strange that other similar appointments were approved seamlessly, whereas Malik’s was riddled with hurdles. She added that it seemed the JCP played the ‘woman card’, and when that didn’t work, they caved in easily. The lawyer opined that the failed nomination demonstrated that not many supported the idea of a woman judge in the SC.
JCP did not approve the appointment of Justice Ayesha Malik in the SC. Why did they approve the other judges who were nominated & then later appointed. Could it be that the "woman card" was played to first serve its purpose & then when it wasn't working casually drop the idea?
— Zahrah Sehr Vayani (@ZahrahV) September 9, 2021
Some lawyers were perturbed at ‘seniority principle’ being behind the opposition. Barrister Yasser Latif Hamdani said that the judges could be elevated to the SC directly, just like they were in the US. He urged that Malik be advanced to the SC to break the glass ceiling.
This. Very few people know that just like the US, lawyers can be elevated to the SC directly in Pakistan. I am sure that is the case in other countries as well. Whither seniority then? For God’s sake elevate Justice Ayesha and break the glass ceiling. https://t.co/ZATxIalJJS
— Yasser Latif Hamdani (@theRealYLH) September 10, 2021
Legal advisor Reema Omer lamented that there was no gender inclusivity in the SC. Omer said that the lack of transparency in how judges were previously appointed, set Justice Malik’s nomination up for failure. She said that seniority was one factor, but other merits should be considered as well.
Most unfortunate, and a reminder of how problematic the absence of objective, transparent criteria in nominating judges for the SC (and HCs) is
Seniority can be one factor to consider, but surely it can’t be the only one when the candidate could bring so much more to the bench https://t.co/RE12YDuwEd
— Reema Omer (@reema_omer) September 9, 2021
In a separate tweet, Omer noted that the honorable judge’s nomination did not defy the constitution. She added that the constitution’s Article 177 (2)(b) made provisions for a lawyer with 15 years of experience to directly be raised to the SC.
If a lawyer is appointed directly to SC (as allowed by the constitution), does that suggest no judge in any of the high courts is competent enough?
How does the JC define “merit”? https://t.co/4b9L93wVAh
— Reema Omer (@reema_omer) September 10, 2021
A proponent of the ‘seniority principle’, advocate Usman Warraich conceded there was nothing unconstitutional about the nomination, but it sent the message that those who were senior to Justice Malik and were not elevated were ‘incompetent’.
Absolutely there is nothing unconstitutional in elevating Ayesha J. to the SC.
But when we say that Ayesha J. at number 4th in seniority, is a competent judge to fill the vacancy at SC, then we are implying that three judges senior to her are not competent.
— Usman Warraich (@AdvUsmanWaraich) September 10, 2021
Advocate Dr Chaudhry Imtiaz Hussain said that the ‘seniority principle’ decided who the most deserving judge was and should be followed in the interest of objectivity. Like other lawyers, however, he too said judicial reform might be needed to assess the elevation of women judges on a quota system.
Fairly speaking Principle of seniority must be followed while elevating judges to Supreme Court. Who else ever is Senior, he is deserving. However quota of women judges can be fixed to give representation to Women in Supreme Court.
— Adv Dr Chaudhry Imtiaz Hussain (@imtiazlawyer) September 9, 2021
Justice Malik was nominated for a seat in the SC by Chief Justice Gulzar Ahmed in August. Malik has been a formidable member of the judiciary who has given ground-breaking verdicts such as banning the two-finger virginity test in sexual assault cases. She has been serving as a sitting judge in the Lahore High Court for about nine years. Under the constitution, one of the benchmarks for elevation to the SC is five years of high court service.