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HomeNationalLegal experts call for judicial reform after Justice Ayesha’s elevation stalls

Legal experts call for judicial reform after Justice Ayesha’s elevation stalls

According to Article 177 of the constitution, a high court judge must have a minimum experience of five years to be elevated to the SC

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.

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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.

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.

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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.

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.

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.

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.

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.

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’.

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.

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.


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