The issue of the elevation of Lahore High Court judge Justice Ayesha A Malik to the Supreme Court has divided the legal fraternity once again. Previously the question of the elevation of the female judge was raised in September, where the extreme animosity of the Bar Council to the idea essentially forced the Judicial Commission of Pakistan (JCP) to reach no consensus and reject the elevation.
However, that failed to be the end of the matter, now that Chief Justice (CJP) Gulzar Ahmed has once again proposed that Justice Malik be elevated to the Supreme Court, with the JCP now meeting on January 6 to complete an unfinished agenda.
Even the second time around, the Punjab Bar Council’s zeal and opposition against the potential appointment does not seem to have wavered. The Punjab Bar Council, and indeed all bar associations, have threatened that they would boycott all court proceedings, from the superior judiciary to the lower courts if this elevation was not rejected.
This is a complicated issue—with both sides having legitimate concerns. However, the circumstances and the way the fraternity is going about this, with ultimatums and complete lack of negotiation, raises suspicions that this issue is not just one of principle.
The legal fraternity that argues in favour of seniority is right that arbitrariness in the elevation process injects uncertainty and the possibility of bias and favouritism in the judiciary. However, there seems to be no explanation as to why the Bar Council has chosen this particular appointment as a breaking point, when there have been countless precedents of younger judges being approved over senior judges.
If the problem really is the lack of process, then the Bar Councils must demand that the commission set up a nomination and selection process that is inclusive and transparent by diluting the power of the CJP instead of enhancing it.
Targeting one of the rare female appointees to the Supreme Court, which has in its history never seen a female member of the bench, and threatening nationwide strikes will not bring the judiciary closer to transparency.
