ISLAMABAD   -   In a major development, the Judicial Commission of Pakistan (JCP) Thursday recommended the name of Justice Ayesha Malik, a judge of Lahore High Court (LHC), for elevation to the apex court.

Chief Justice of Pakistan Justice Gulzar Ahmed chaired the JCP meeting in which Justice Ayesha Malik’s elevation was approved by a majority of five votes against four. During the meeting, Chief Justice Gulzar Ahmed, Justice Umar Ata Bandial, Justice (retd) Sarmad Jalal Usmani, Federal Minister of Law and Justice, and Attorney General for Pakistan Khalid Jawed approved Justice Ayesha Malik’s name while Justice Qazi Faez Isa, Justice Maqbool Baqir, Justice Sardar Tariq Masood and Pakistan Bar Council representative Akhtar Hussain opposed her elevation.

The four members who opposed her nomination insisted that criteria should be evolved for the appointment of superior court judges first. They further said that the seniority principle should be followed for the appointment of SC judges.

After her elevation, Justice Ayesha will be first female judge to sit in the Supreme Court. Justice Ayesha became the judge of LHC judge in March 2012 and is currently on number four on the high court judges seniority list. Upon her elevation she will work as SC judge until June 2031. She will also become the chief justice of Pakistan after the retirement of Justice Yahya Afridi in January 2030.

Justice Ayesha had her basic education from schools in Paris and New York and did her A Level from Francis Holland School for Girls in London. Her education in Pakistan consisted of Senior Cambridge done from the Karachi Grammar School and Bachelors in Commerce from the Government College of Commerce & Economics, Karachi. She took her initial legal education at Pakistan College of Law Lahore. Later, she did her L.L.M from Harvard Law School Cambridge Massachusetts, USA. Her main educational achievement was being named a London H. Gammon Fellow 1998-1999 for outstanding merit.

Earlier, Vice-Chairman Pakistan Bar Council Khushdil Khan on January 3, in a presser had said that nomination of Justice Ayesha is violation of the seniority principle, superseding three judges of the Lahore High Court including its Chief Justice, who are not only senior to her in service but also senior in legal practice before their elevation to the High Court, particularly when their integrity and competence is not in question, he added.

In this connection, the Women in Law Initiative Pakistan has also issued a statement with respect to the seniority debate on the appointment of Justice Ayesha A. Malik to the apex court, saying that the idea that seniority is a legal requirement is a myth and “there is no requirement in law and Constitution to appoint the senior most judge to the Supreme Court”.

The initiative stated that “at least 41 times judges have been appointed to the Supreme Court without them being most senior. There is, therefore, no such custom either. ‘Seniority’, is at best a mere demand of some members of the Bars at the moment and has no legal basis”.

The initiative made a reference to Article 175-A(3) of the Constitution of Pakistan which “speaks of seniority only in relation to the appointment of the Chief Justice of Pakistan”, adding that as per Article 177 (2) of the Constitution, to be eligible for appointment as a judge of Supreme Court, a person must: be a citizen of Pakistan; been a judge of the HC for five years, or been an advocate of the HC for 15 years.

It mentioned, “Absence of the words, ‘the most senior’ in Article 177 for appointment of Judges of the SC shows that seniority of a Judge in the High Court is not an essential condition for their appointment as a Judge of the SC.”

The initiative added that “seniority as an interim measure will halt conversation for holistic reforms actually needed for greater transparency and representation”.

On the other hand, a senior lawyer while talking to The Nation, opposed the elevation of Justice Ayesha saying that it is not a good sign for the institution. He added that why this gender based policy was not followed when Justice (red) Tahira Safdar was the chief justice of Balochistan High Court (BHC). He maintained that such steps would not help to consolidate the institutions.

Another senior lawyer Haroon-ur-Rashid was of the same view and said that the junior judges should not be elevated in presence of the senior judges. He also said that it is their principal stance that seniority principal should not be ignored while elevating a judge of the high court to the apex court.