CJ again floats Justice Ayesha’s name for SC slot

ISLAMABAD:

Chief Justice of Pakistan Gulzar Ahmed has again proposed the name of Lahore High Court’s Ayesha Malik for her appointment as a judge of the apex court.

The chief justice has summoned a meeting of the Judicial Commission of Pakistan (JCP) on January 6 to consider Justice Ayesha for the SC judge's post.

This is for the second time that the CJP has proposed the judge's name.

In September this year, the JCP had met to consider her nomination but its members were unable to reach a consensus.

The chief justice, Justice Umar Ata Bandial, Attorney General for Pakistan (AGP) Khalid Jawed Khan and Law Minister Dr Farogh Naseem had supported her nomination.

However, Justice Maqbool Baqar, Justice Sardar Tariq Masood and Justice (retd) Dost Muhammad Khan and Pakistan Bar Council representative in the JCP Akhtar Hussain had opposed it.

Another JCP member, Justice Qazi Faez Isa, had not attended the meeting.

Justice (retd) Dost Muhammad Khan, a JCP member who had opposed the nomination, has retired from the JCP after his two-year tenure ended earlier this year.

Justice (retd) Sarmad Jalal Osmani is now a JCP member in his place and it has been learnt that he might support Justice Ayesha's nomination.

Justice Ayesha became an LHC judge in March 2012 and is currently on number four on the LHC judge seniority list

In the case of her elevation, she will work as the Supreme Court judge until June 2031.

She will also become the chief justice of Pakistan after the retirement of Justice Yahya Afridi in January 2030.

No female judge has ever been elevated to the Supreme Court in the judicial history of the country.

However, Pakistan Bar Council Vice Chairman Khush Dil Khan in his statement has expressed his serious reservations over the move, citing it “violates the seniority principle for the elevation of judges to the Supreme Court and high courts”.

He also emphasised that it was a consistent stance of the legal fraternity that judges should be elevated or appointed on the principle of seniority in all courts and the “pick and choose” practice should be stopped.

“If the seniority principle is violated … the legal fraternity will resist it with full force and zeal.”

During the JCP meeting on September 9, Justice Bandial had observed that Ayesha was known to be a “fiercely independent judge” and that was why the bar was opposing her appointment as a Supreme Court judge.

Read 'SC judges to be appointed on basis of seniority'

The judge had also insisted that the opinions of the JCP members, who had opposed the nomination of the first female SC judge, be recorded for history.

Justice Bandial, who will be future chief justice of Pakistan, had noted that Justice Qazi Faez Isa did not join the debate because he did not want to oppose the nomination in words.

He had 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’s opinion, Justice Bandial had said the point of discrimination had been raised against three senior LHC judges, but the commission needed to see Article 25 (3) of the Constitution that prescribed making special provision for the protection of women and children.

However, Justice Baqar had responded that Justice Bandial was unnecessarily exposing the nominee to controversy over protecting women rights.

The judge had 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 had added.

JCP Chairman Justice Gulzar had responded there was no question of making anyone controversial. He had 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 had noted that competency was part and parcel of seniority except in exceptional cases.

He had added that when a junior judge was elevated, questions were raised about the competence of senior judges.

Justice Masood had observed 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 had noted that Article 189 was not applicable in the current case because this was a commission and not a court.

Justice Masood had further stated that the nominee was also enrolled out of turn as an advocate of the Supreme Court.