JCP recommends elevation of Justice Ayesha to SC

ISLAMABAD: The Judicial Commission of Pakistan (JCP) on Thursday recommended with majority the elevation of Justice Ayesha A Malik of the Lahore High Court to the Supreme Court of Pakistan, making a history of including the first female judge in the country’s highest court.

A meeting of the JCP, a constitutional forum for appointment of judges to the superior courts, was held here at the Supreme Court headed by Chief Justice of Pakistan Justice Gulzar Ahmed being the chairman of the commission. The Judicial Commission of Pakistan consists of nine members including the chief justice of Pakistan being its chairman with four senior sitting judges of the Supreme Court, a retired judge, the Law minister, the attorney general of Pakistan and a representative from the Pakistan Bar Council.

The meeting held a detailed deliberation over the elevation of Justice Ayesha A Malik and finally recommended her elevation to the Supreme Court with the 5-4 majority. CJP Gulzar Ahmed, Justice Umer Ata Bandial, Justice (retd) Sarmad Jalal Usmani, Law Minister Barrister Farogh Naseem and Attorney General Khalid Javed supported the elevation of Justice Ayesha A Malik. Justice Maqbool Baqir, Justice Qazi Faez Isa, Justice Sardar Tariq Masood and Akhtar Hussain, representative of the Pakistan Bar Council, opposed the elevation of Justice Ayesha A Malik.

The JCP was established through the 18th Amendment and after its recommendation, the matter is sent to the Parliamentary Committee on Appointment of Judges to the superior courts. After the approval of the parliamentary committee, the recommendation will be sent to the president of Pakistan who will issue a notification of the nominee and after the president’s approval, the chief justice of Pakistan will administer oath to Justice Ayesha A Malik as the first female judge of the Supreme Court.

Sources said that at the start of the meeting, four members of the commission including Justice Maqbool Baqir, Justice Qazi Faez Isa, Justice Sardar Tariq Masood and Pakistan Bar Council representative Akhtar Hussain stressed setting criteria for the appointment of judges to the Supreme Court as well as the High Courts. They were of the view that the elevation of judges to the Supreme Court must be made in accordance with the seniority principle as laid down in the apex court judgments.

The sources said the JCP members supporting the elevation were of the view that the criteria for the judges appointment as well as their elevation to the Supreme Court has already been settled in important judgments of the Supreme Court, delivered by larger benches of the apex court. The members said the criteria for the appointment of judges to the superior courts has been defined in the famous judgment of the apex court known as the Al-Jihad Trust case 1996 SC 324 as well as the Supreme Court Bar Association (SCBA) case 2002 SC 939 wherein the criteria for the judges appointment had been defined and settled as well.

Therefore, the sources said that the five JCP members who supported the elevation of Justice Ayesha A Malik held that there is no need further for setting the criteria for the judges appointment.

After the meeting, Farogh Naseem while talking to media expressed his happiness over Justice Ayesha Malik’s elevation and termed the JCP recommendation historic. He said that for the first time in the judicial history of the country, the recommendation for the elevation of a female judge to the Supreme Court has been made. Replying to a question, the law minister said the SC judgments pertaining to seniority are on record, adding that the Supreme Court has made it clear in the judgments that the seniority principle cannot be applied to the elevation of a high court judge to the Supreme Court of Pakistan.

To another question, he said if anyone opposes the recommendation of the commission, he can file a review petition on the Supreme Court’s judgments.

Earlier in September 2021, her elevation to the Supreme Court had remained inconclusive due to an equal split after four members of the commission opposed while four others supported her elevation. The commission thereafter deferred the matter. Chief Justice Gulzar Ahmed, Justice Umar Ata Bandial, Attorney General for Pakistan (AGP) Khalid Javed Khan and Law Minister Dr Farogh Naseem had supported her nomination while Justice Maqbool Baqar, Justice Sardar Tariq Masood and Justice (retd) Dost Muhammad Khan and Pakistan Bar Council representative Akhtar Hussain had opposed it. Another JCP member Justice Qazi Faez Isa had not attended the said meeting as he was in Spain for the treatment of his wife Sarina Isa. Justice (retd) Dost Muhammad Khan, a JCP member who opposed the nomination, has retired from the JCP after his two-year tenure ended earlier this year. Justice (retd) Sarmad Jalal Usmani is now a JCP member and on Thursday, he supported Justice Ayesha's nomination as an SC judge.

Recently, the chief justice of Pakistan for the second time had proposed the appointment of Justice Ayesha A Malik and convened the JCP meeting on January 6. The Pakistan Bar Council and the Supreme Court Bar Association had repeatedly opposed the elevation of Justice Ayesha A Malik for being at No 4 on the seniority list in the Lahore High Court. Pakistan Bar Council Vice Chairman Khusdil Khan had announced that if the seniority principle is violated for the elevation/appointment of judges to the Supreme Court, High Court and lower courts, the legal fraternity will resist it with full force. He the other day had also announced boycotting Supreme Court and high court proceedings and had appealed to the lawyers not to attend court proceedings across the country on January 6.

It was the consistent stance of the Pakistan Bar Council and the Supreme Court Bar Association that the appointment of judges to the superior courts must be made in accordance with the seniority principle.

Five benches of the Supreme Court on Thursday held proceedings in cases while lawyers despite the boycott call given by the PBC appeared before the benches of the apex court. Meanwhile, heavy contingents of law enforcement as well as police were deployed outside and inside the Supreme Court in the wake of a strike given by the legal fraternity.

Justice Ayesha became an LHC judge in March 2012. After her elevation, she will work as an SC judge until June 2031. She will also become the chief justice of Pakistan after the retirement of Justice Yahya Afridi in January 2030.

It is pertinent to mention here that no female judge has ever been elevated to the Supreme Court in the judicial history of Pakistan.

Earlier, Attorney General Khalid Javed issued a statement in September 2021, saying that the appointment of the first woman judge to the apex court would be a historic occasion and though he supported the nomination of Justice Ayesha A Malik by the chief justice of Pakistan, he would prefer that the first woman judge be appointed by a unanimous recommendation of the JCP members and full support of the bar.