The Judicial Commission of Pakistan (JCP) on Thursday approved the elevation of Lahore High Court Justice Ayesha A. Malik to the Supreme Court, making her the first woman judge in the country’s history to serve at the apex court.
Chief Justice of Pakistan Gulzar Ahmed chaired the JCP meeting during which Malik’s elevation was approved by a majority of five votes against four, Pakistani media reported. This is the second time that the JCP held a meeting to decide on Malik’s elevation. A lack of consensus during a meeting last September had forced the commission to reject her elevation.
During that meeting, four members of the eight-member JCP had opposed the proposal to elevate Justice Malik – the fourth most senior judge of the LHC – while an equal number had supported the move.
“At the time, the Supreme Court Bar Association President Abdul Latif Afridi had called a countrywide protest to express anger over, what the legal fraternity perceived was the disregard of the seniority principle in the appointment of judges to the apex court,” Dawn said.
Indeed, Malik’s elevation has been marred by controversy, with many within the legal community arguing against her promotion for reasons of seniority.
Earlier this week, the Women in Law Pakistan initiative issued a statement with respect to the seniority debate on Malik’s appointment, saying the idea that seniority was a legal requirement was a “myth” and arguing that there was no such requirement in the law and constitution.
“At least 41 times judges have been appointed to the Supreme Court without them being most senior,” the initiative said. “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 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 the Supreme Court, a person must be a citizen of Pakistan and have been a judge of the high court for five years or an advocate of the high court for 15 years.
“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.”
