Justice Umar Ata Bandial has said Lahore High Court’s Justice Ayesha Malik was known to be a “fiercely independent judge” and that was why the bar was opposing her appointment as a Supreme Court Judge.
The judge also insisted that the opinions of the Judicial Commission of Pakistan (JCP) members, who had opposed the nomination of the first female judge for the appointment of the Supreme Court, be recorded for history.
"Let those be counted who rejected the proposal ... so that it is recorded [in history] who stands for women rights,” said Justice Bandial -- revealed the minutes of the JCP meeting held on September 9 to consider the appointment of Justice Ayesha to the SC.
However, no consensus could be evolved as four JCP members supported and four opposed her elevation on several grounds.
Justice Bandial, who will be future chief justice of Pakistan, also noted that Justice Qazi Faez Isa did not join the debate because he did not want to oppose the nomination in words.
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He added that he greatly respected Justice Isa's views as “he was following his conscious” and would not say anything against women’s rights.
Responding to another JCP member Justice Sardar Tariq Masood opinion, Justice Bandial said the point of discrimination had been raised against three senior LHC judges but we needed to see Article 25 (3) of the Constitution which prescribed making special provision for the protection of women and children.
He noted that throughout the world, the highest courts of any land comprised of female judges.
He added that he would request to the JCP to apply the standards that were applied to men for the selection of a judge but let women stand in a different queue, meaning that a female judge could not be stopped on the basis of seniority or lack of it if she met the standards of competence or capacity or independence.
Justice Bandial stated that seniority could not be the principle consideration because this was not a promotion.
He said if seniority was the criteria, then there was no need for the commission, as judges in the superior courts would then be appointed through a conveyer belt mechanism.
He referred to the list of 41 junior judges appointed to the SC.
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ccording to him, the listed included names who were his heroes as judges.
However, JCP member Justice Maqbool Baqar responded that Justice Bandial was unnecessarily exposing the nominee to controversy over protecting women rights.
Justice Baqar maintained that he stood for women’s rights and they were being wrongly portrayed.
He stressed the need for democracy, principles, independence and women’s liberation.
“But we do not want discrimination and make a non-controversial figure controversial,” he added.
JCP Chairman Justice Gulzar Ahmed responded there was no question of making anyone controversial. He added that that nobody had discussed the merit of the nominee.
“Everyone is only talking about seniority which has already been decided in a 2002 judgment. That judgment is binding upon us under Article 189 of the Constitution.”
Justice (retd) Dost Muhammad Khan said competency was part and parcel of seniority except in exceptional cases.
He added that when a junior judge was elevated, questions were raised on the competence of senior judges.
He maintained that he respected views of Justice Bandial but departure from the main judgment in Al-Jihad Trust Case was not possible.
Justice Sardar Tariq Masood said there was no backing of a different queue for female judges in the Constitution or law.
He added that under Article 25(3), it was the duty of the State to make special provisions for the protection of women.
“If the State makes a law in this regard only then it would be applicable, but for the time being Article 25(3) was not relevant and only Article 25(2) was relevant which speaks of no discrimination.”
He noted that Article 189 was not applicable in the current case because this was a commission and not a court.
Justice Masood further stated that the nominee was also enrolled out of turn as an advocate of the Supreme Court.
Earlier, Justice Baqar, while opposing the nomination, said the present issue had already been discussed in detail in previous three meetings.
"Now this issue is part of public discourse, being discussed by bars, civil society and media. Unfortunately, we are facing a crisis. There is resentment in bar and in the civil society in respect of the commission.”
He said that according to his assessment, the resentment was not without any basis.
“The bar is asking for structured discretionary rules giving a viable solution to the situation ... if the bar is taken on board and on the basis of their input some criteria is evolved that is workable and viable, then all the future problems according to his understanding will be resolved.”
He observed that there was a perception of packing of the courts that needed to be dispelled.
Justice Baqar also said that questions are being raised upon our independence and our perception of independence is eroding.
He pointed out that the sitting Sindh High Court chief justice had been appointed as an ad-hoc judge of the SC but he was still continuing at his earlier post.
He added that the JCP chairman was a man with progressive thoughts and that was why he nominated a female judge.
“We should put our heads together and find a viable solution.”
Pakistan Bar Council (PBC) representative in the JCP Akhtar Hussain said the commission’s rules were required to be amended and the bar had given its proposals in writing for this purpose but no meeting was held on the matter.
He added that the bar was of the view that vacancy should be filled by a Islamabad High Court judge, whose representation was not in the SC.
He maintained that the bar was against the policy of “pick and choose” of junior judges.
He said the concern of the bar was that why the IHC chief justice, who was otherwise the senior most, not being considered to be elevated in the SC.
The PBC representative said he fully endorsed the view of Justice Dost Muhammad Khan, Justice Masood and Justice Baqar on the point of seniority.
“The seniority issue is very important and must be considered.”
On this, the CJP responded that the bar had not raised any objection in the past on the question of seniority and it had been supporting the appointments, as pointed out by him, made in the past.
Attorney General for Pakistan Khalid Jawed Khan said there was a constitutional scheme whereby the CJP initiated the nomination being the head of the family.
“Once he [the CJP] makes the recommendation, and unless there are compelling reasons, I would attach maximum deference with the head of the family and fully support the nomination.
Justice (retd) Dost Muhammad Khan responded that the AGP’s proposal was good but it required a constitutional amendment.
Justice Baqar responded that the proposal was good but it could be made part of the criteria which may be evolved for the elevation judges to the SC.
Akhtar noted that it should be applied to the elevation of judges to the high courts.
He pointed out that there was no representation of female judges in the IHC and Balochistan High Court and that should be ensured on a priority basis.
He said the bar was prepared to have a consensus on evolving a criteria and amendment in the rules. The criteria should not only be for the elevation to the SC, but also to the high courts, he added.
Finally, the JCP concluded that no consensus could be reached on the nomination of Justice Ayesha for her appointment as an SC judge.
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