This Thursday, the Judicial Commission of Pakistan will consider the nomination of Justice Ayesha Malik to the Supreme Court (SC). Justice Ayesha Malik will be the first woman to reach the apex court, if appointed, and in the future can be appointed as the Chief Justice of Pakistan. However, lawyers across the country will record their protest today.

Why are lawyers protesting?

As per senior journalist Hasnaat Malik, lawyers are protesting across the country because their main concern is that Supreme Court judges should be appointed on the basis of seniority.

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Hasnaat Malik says that one segment of lawyers believe that Justice Ayesha Malik should first serve as the Chief justice of the Lahore High Court, adding that most of the legal fraternity believes that Justice Ayesha is competent but the seniority principle should not be bypassed in her case either.

On the other hand, Hasnaat says, there are many in the legal fraternity who do not want this decision to be taken back, as Justice Ayesha is making history for being the first female Supreme Court Justice in Pakistan.

However, he said that it could have been better if the Chief Justice of Pakistan had initiated the name of Justice Ayesha after taking all stakeholders into confidence, including superior bars.

Is her possible elevation against the law?

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Senior lawyer Abid Saqi, while talking exclusively to The Current, said that protest is not person-specific. “I, personally, see no violation of the Constitution in her appointment. Lawyers are asking for certain amendments to ensure an inclusive process like equality in the number of judges and other stakeholders and to have set criteria for such appointments in the higher judiciary.”

Hasnaat Malik told The Current that legally there is no issue in the appointment of Justice Ayesha Malik in the Supreme Court. “In fact, at least 41 judges have been appointed in the SC bypassing the seniority principle, but the main concern of the lawyers who are protesting is that out-of-term appointments leaves a question mark on the independence of SC judges.”

“Lawyers also allege that perception of favouritism/nepotism cannot be ruled out in out-of-turn appointments of last five Supreme Court judges,” added Malik, “but anyone who has completed five years in High Court can be appointed in the Supreme Court.”

Seniority only applies in case of appointment of the chief of any court. As per Article 175(A) of Pakistan Penal code clause 3 : “Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.”

To learn more about the divide in the legal fraternity, The Current also spoke to two lawyers, one who is in the favour of the protest and one who is not participating in the protest.

In favour of the protest: Salahuddin Ahmed, President Sindh High Court Bar Association (SHCBA)

President of Sindh High Court Bar Association (SHCBA), Salahuddin Ahmed, told The Current that the protest is against the Judicial Commission’s (JC) failure to define any criteria on the basis of which they will make future appointments to the Supreme Court.

“In the last 3-4 years, they (Judicatory Commission) have deviated from the usual practice of appointing the most senior High Court judges and even appointed judges who ranked No 26 in seniority,” said Salahuddin Ahmed.

Lawyers want the JC to explain how they select the pool for appointments and on what basis they pick and choose among them.

“Presently, there are serious allegations of favouritism and appointments being made purely on the basis of likes and dislikes,” he said.

“So for example, the present crisis erupted when the JC last month overlooked the CJ of Sindh (who is the most experienced HC judge in Pakistan and whom the JC itself selected to head the entire judiciary of Sindh four and a half years ago) in favour of a judge who ranked fifth in seniority. No cogent reason for overlooking the second, third and fourth was given either.”

“Bars insist that the JC should frame a system that structures its absolute discretion in appointments and lays down objective criteria for elevations to the SC. Till then, they should not depart from the seniority principle in appointments which has been the customary (if not invariable) practice,” President SHCBA told The Current.

He made it clear that there is no protest against Justice Ayesha Malik as such. “She is a fine judge. However, the Bars are protesting against any appointments made to SC (whether male or female) on the basis of an arbitrary selection by the JC without a defining principle/criteria.”

“If the criteria is purely merit (and not seniority or any other consideration), then why has the JC only called for records of only the top-4 judges of the LHC and not from any other province or from the Islamabad High Court? And if the present appointment is meant to increase gender diversity then why have the records of Mussarat Hilaly — an equally senior judge of the Peshawar High Court — not been summoned?”

Against the protest: Senior Lawyer, Abuzar Salman Khan Niazi

Talking to The Current, senior lawyer Abuzar Salman Khan Niazi, Managing partner The Crown Law Chambers, termed the call of the protest as “unreasonable, irrational and unjustified” adding, “Bar councils are just trying to assert their authority without any legal justification.”

He also said that the lawyers are protesting against the elevation of Justice Ayesha.

Talking about the legal aspect of her appointment, Abuzar Niazi said that the “elevation of Justice Ayesha is in accordance with dictates of the Constitution and law of Pakistan.”

Bar councils’ and bar associations’ demand of appointment on basis of seniority is not legally tenable and has no constitutional basis, said Abuzar Niazi.

He said that courts have already held that the elevation in the Supreme Court does not require following seniority principle.

“The Supreme Court of Pakistan in 2002 in Faqir Muhammad case has already held that appointment in the SC doesn’t require following the seniority principle. Sindh High Court also held the same in 2019. So the law is settled. Lawyers demand apart from being illegal and unconditional is also unreasonable.”

Abuzar also told us that in the past, many judges have been appointed in the SC without following the seniority principle. For example, Justice Faqir Muhammad Khokhar, Justice Saqib Nisar, Justice Asif Saeed Khosa, Justice Gulzar Ahmed, Justice Aminudin Khan, Justice Munib Akhter, Justice Mazahir Naqvi, Justice Qazi Amin and various others.

“So, in a nutshell, nothing novel and illegal,” he said.

Talking about Justice Ayesha’s competency, he said, “Justice Ayesha is an exceptional jurist, she is competent and enjoys a very good reputation. Her integrity is unquestionable. In the last decade, She has survived like an iron lady in bar and bench profoundly dominated by chauvinism. The bar councils and bar associations were never supportive of her as she never succumbed to their pressure in the past.”

Who is Justice Ayesha Malik?

As per the Lahore High Court website, Justice Ayesha Malik completed her education from Paris and New York and did her Senior Cambridge from the Karachi Grammar School in Karachi. She did her A Levels from the Francis Holland School for Girls in London. She completed her B.Com from the Government College of Commerce & Economics, Karachi and studied law at Pakistan College of Law, Lahore. She went on to do her LLM from Harvard Law School in Cambridge, Massachusetts, U.S.A. where she was named a London H. Gammon Fellow 1998-1999 for outstanding merit. She assumed office in March 2012.

Interesting fact: Justice Ayesha Malik’s profile on LHC’s website states: “She is happily married and has three children.”

Earlier, the Human Rights Watch (HRW) welcomed the nomination of Justice Ayesha Malik to the Supreme Court of Pakistan.

As per the HRW report, “Only about four per cent of Pakistan’s High Court judges are women. Of the 3,005 Pakistani judges in the lower and higher courts, only 519 – or 17 per cent – are women.”