ISLAMABAD: The Judicial Commission of Pakistan (JCP) on Thursday okayed the nomination of Lahore High Court Justice Ayesha A. Malik to the Supreme Court in a close contest as five voted in her favour while four opposed it.
This historic moment; nomination of the first female justice of the Supreme Court comes against the backdrop of intense debate continuing for several months in the legal fraternity, with one side pushing ahead for the principle of seniority in the elevation of judges – while the other arguing in the favor of Justice Ayesha who is currently on the fourth place in the seniority list of the Lahore High Court.
Even on Thursday, hours before the nomination was put to vote, there was a heated discussion amongst the members of the Judicial Commission that lasted for over three hours.
Chief Justice of Pakistan (CJP) Gulzar Ahmed, senior puisne judge Justice Umar Ata Bandial, former judge Sarmad Jalal Osmany, Law Minister Barrister Farogh Naseem and Attorney General (AG) Khalid Jawed Khan supported Justice Malik’s candidature, while Justice Qazi Faez Isa, Justice Maqbool Baqar, Justice Sardar Tariq Masood and Pakistan Bar Council (PBC) representative Akhtar Hussain opposed the selection.
Justice Ayesha A. Malik now awaits the approval of an eight-member parliamentary committee after which she will formally assume the charge of a Supreme Court Justice.
Justice Ayesha is an alumnus of the Pakistan College of Law, Lahore and Harvard Law School, U.S. where she is a London H Gammon fellow. She has also authored numerous publications and offered lectures at multiple universities across Pakistan.
Previously, on September 9, 2021, the JCP was unable to reach a decision on the nomination as there was a tie – with four votes cast for each side. The nomination was deferred to the next meeting. At the occasion, there was a strong protest lodged by the legal fraternity on the call of the PBC.
On Thursday, the JCP also decided to establish an appointment criterion for the nomination of judges to the superior courts. A committee was formed to deal with the matter so that the debate could be put to rest once and for all.
A divide exists however, over whether to first pursue the nomination at hand to the Supreme Court, or to wait and first establish a set of protocols for the elevation to superior courts.
Justice Isa, who gave a dissenting vote to Justice Ayesha’s nomination, suggested before the JCP meeting on Thursday that once the nomination and selection criteria are determined, this would help dispel misgivings that arbitrariness holds sway in the selection process, adding that Rule 3 of the Judicial Commission of Pakistan Rules 2010 only meant that the nominees be routed through the concerned chief justices, not that the concerned chief justices alone may nominate them.
After Thursday’s nomination, the legal community showed mixed reactions. With some arguing that the principle of seniority was violated while others asserting that the decision was taken on merit.
Attorney General, Khalid Javed Khan expressed his well wishes to Justice Ayesha on her elevation.
Farogh Naseem, the minister for law, while speaking to media persons after the meeting, assured that the nomination was completely made on merit and expressed hope that it would soon receive a nod from the bipartisan parliamentary committee which is to confirm the nomination.
On the contrary, the Sindh High Court Bar Association President Salahuddin Ahmed expressed his disappointment over the move. He said: “Though it was wonderful to see a woman elevated to the Supreme Court, it is however deeply disappointing to see the JCP still remains resistant to framing any objective evaluation criteria for appointing judges and refuses to introduce any rules to check their discretion in this regard.”
