Justice Ayesha Malik: Why Lahore High Court judges could not be appointed in the Supreme Court?Parliament should legislate for quota of women judges in Supreme Court.

 

    

Justice Ayesha Malik: Why Lahore High Court judges could not be appointed in the Supreme Court?

Justice Ayesha Malik: Why Lahore High Court judges could not be appointed in the Supreme Court?

Protests by lawyers' associations against the Supreme Judicial Council's approach to the appointment of High Court judges in the Supreme Court have begun to have an effect.

At a meeting of the Judicial Commission of Pakistan on Thursday, the issue of appointment of Justice Ayesha Malik of the Lahore High Court as a judge in the Supreme Court was tied.

Justice Ayesha Malik received four votes in favor of appointing a judge in the Supreme Court while four votes were cast against her.

Lawyers' organizations say their protest is not limited to the case of Justice Ayesha Malik, but will continue until the 'pick-and-choose' policy is abolished by the authorities and the Judicial Commission seniority is upheld. But it does not appoint judges in the Supreme Court.

It may be mentioned that in the meeting of the Judicial Commission of Pakistan chaired by Chief Justice Gulzar Ahmed on Thursday, the members of the commission who recommended the appointment of Justice Ayesha Malik as a judge of the Supreme Court included Justice Umar Ata Bandial, Attorney General. Khalid Javed and Federal Law Minister Forough Naseem.

Opponents include Supreme Court Judge Justice Maqbool Baqir, Justice Tariq Masood, retired Supreme Court Judge Justice Dost Mohammad and Akhtar Hussain, a member of the Pakistan Bar Council, the country's largest bar association.

Another member of the Judicial Commission of Pakistan and a judge of the Supreme Court, Justice Qazi Faiz Issa, is abroad for the treatment of his wife, due to which he could not attend the meeting of the Judicial Commission.

Akhtar Hussain, a representative of the Pakistan Bar Council and a member of the Judicial Commission, said that if Justice Qazi Faiz Issa had been present at the meeting, the name of Justice Ayesha Malik would have been rejected.

It may be recalled that when the issue of appointment of Justice Muhammad Ali Mazhar as a judge of the Sindh High Court was discussed in the meeting of the Judicial Commission of Pakistan, Justice Qazi Faiz Issa had opposed it on the ground that A junior judge cannot be brought in the Supreme Court and the first right belongs  of the Sindh High Court’s Chief Justice 

The Judicial Commission of Pakistan had approved the appointment of Justice Muhammad Ali Mazhar as a judge in the Supreme Court and the Chief Justice of the Sindh High Court as a specially appointed adjudicator in the Supreme Court. His consent was not sought in this regard.

Adopting a 'pick and choose' policy negates the concept of an independent judiciary

Akhtar Hussain, a member of the Pakistan Bar Council, told the BBC that the position of lawyers' associations across the country was that if a judge from one of the district courts had to be taken to the High Court, his seniority should be taken into account. At the same time, the seniority of judges from the High Court to the Supreme Court should also be taken into consideration.

 

He said that lawyers' associations had threatened that if the issue of appointment of judges in the High Court was not made conditional on seniority, then they would take their protest to the Supreme Court and Parliament House.

Akhtar Hussain said that the adoption of the policy of 'pick and choose' in the higher judiciary by the officials negates the concept of independent judiciary.

He said that the lawyers had started a movement for an independent judiciary against a military dictator, not because the responsible people had brought judges of their choice in the higher judiciary. 

A representative of the Pakistan Bar Council said that all those who had supported the appointment of Justice Ayesha Malik as a judge in the Supreme Court at the Judicial Commission meeting depended on a decision of the Supreme Court. It was said that seniority was not necessary for the appointment of High Court judges as judges in the High Court.

Akhtar Hussain said that while the opponents of this proposal were relying on two decisions of the Supreme Court, one is the Al-Jihad Trust and the other is the Asad Ali case. 

In these cases, five and ten Supreme Court judges have said in their decisions that seniority should be taken into account in the appointment of judges in the higher judiciary.

    

Parliament should legislate for quota of women judges in Supreme Court.

Akhtar Hussain said that the meeting of the commission lasted for four hours and there was a gap of only fifteen minutes.

 

It was also stated in the meeting that junior judges have been appointed as judges in the Supreme Court in the past as well. If it has happened, it does not have to be repeated.

 

A Pakistan Bar Council representative dismissed the notion that Justice Ayesha Malik's appointment as a judge in the Supreme Court was opposed on the grounds that she was a woman.

 

He said that Justice Ayesha Malik would be the Chief Justice of Lahore High Court after two years and it is the largest High Court in Pakistan with 60 judges.

He said that it was also mentioned in the meeting that if there is to be a quota of women judges in the Supreme Court, then legislation should be enacted in the Parliament for this.

 

It should be noted that no female judge has been appointed in the Supreme Court of Pakistan till date and if the appointment of Justice Ayesha Malik in the Judicial Commission was approved by a majority vote, she would be the first female judge of the Supreme Court in the history of Pakistan. Would be

 

Constitutional experts say the Judicial Commission may reconsider Justice Ayesha Malik as a Supreme Court judge, but this does not appear to be the case due to protests by lawyers.

Not a single judge from the Islamabad High Court is currently a Supreme Court judge.

After the retirement of Justice Mushir Alam, the number of judges in the Supreme Court is 16 out of which 7 judges belong to Lahore High Court, five judges including the present Chief Justice belong to Sindh High Court, two belong to Balochistan High Court and two belong to Peshawar High Court. Is from

 

Not a single judge from the Islamabad High Court is currently a Supreme Court judge.

 

According to Akhtar Hussain, in the meeting of the Judicial Commission, he had suggested that the Chief Justice of the Islamabad High Court should be promoted and appointed as a judge in the Supreme Court so that the Islamabad High Court would also be represented in the Supreme Court.

 

On the other hand, a glimpse of the protests of lawyers' unions was seen during a court proceedings in the Supreme Court on Friday when the Chief Justice reminded former president of the Supreme Court Bar Association Kamran Murtaza of a judicial decorum on a matter. He appealed to the Chief Justice not to get so angry and not to vent anyone else's anger on him.