Friday
March 29, 2024
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Lahore
EditorialMilord Justice Ayesha Malik

Milord Justice Ayesha Malik

So, Pakistan has taken almost 75 years to make history with the elevation of Justice Ayesha Malik as the first woman judge of the Supreme Court of Pakistan. Congratulations, my lord Justice Ayesha Malik for making it to the superior court, and all women of Pakistan. The credit for the historic moment goes to Chief Justice Gulzar Ahmed who initiated the process. Her appointment has not been smooth sailing as there is still a malicious campaign going on against her rise from the Lahore High Court to the Supreme Court. The painful aspect of the campaign is that it is not coming from some conservative or radical quarters, which are against women’s role in the workplace. The ongoing campaign is being spearheaded by the lawyers’ top regulatory forum – the Pakistan Bar Council (PBC) and its allied forums and groups. The bar, however, is opposing the elevation on ‘seniority’ grounds, saying that the settled principle or norm should not be violated in this case, and Justice Ayesha may wait till her number on the seniority list takes her to the apex court. They say the judges who are senior to her may not take her promotion in good taste. Going by the book, Justice Ayesha Malik is fourth on the seniority list. Earlier in September last, her elevation struck a stalemate after the Judicial Commission disapproved of her case. This time, a majority of the members of the commission developed consensus on her appointment as the Supreme Court judge.

The seniority, some circles say, does not qualify one for the elevation if the case is seen under the lens of the Constitution of Pakistan. Earlier, 41 judges have bypassed the seniority test. A cursory or closer look at the constitution does not bring even a single mention of seniority as a constitutional principle. Lawyers opposing Malik’s elevation cite the Al-Jehad Trust vs Federation of Pakistan case which is about judicial appointments. The Supreme Court’s judgment in the Five Judicial Bench in Supreme Court Bar President vs Federation of Pakistan case has clarified the scope of the principles of seniority that “we are clear to our mind that neither the principle of seniority is applicable as a mandatory rule for the appointment of judges in the Supreme Court nor the said rule has attained the status of a convention”. The judges’ appointment should be the sole prerogative of the Judicial Commission, which is well-representative of all stakeholders. Likewise, the commission should consider a judge’s appointment or elevation on the basis of ability, integrity, and experience, and not gender alone. The bar should give up the strike and instead join the historic celebratory occasion. With Justice Ayesha Malik the first, it is hoped, many more women will make it to higher courts and later to the Supreme Court.

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