The chief justice has made history by nominating the first female high court judge for elevation to the apex court.
CJP Gulzar Ahmed has summoned a meeting of the Judicial Commission of Pakistan (JCP) on September 9 to consider Justice Ayesha Malik of the Lahore High Court for her appointment as a Supreme Court judge.
Her name will be discussed for the seat that would fall vacant after the retirement of Justice Mushir Alam.
Justice Ayesha is on number four on the LHC judge seniority list. She became an LHC judge in March 2012.
In case of her elevation, she will work as an SC judge until June 2031.
She will also become the CJP after the retirement of Justice Yahya Afridi in January 2030.
However, senior lawyers are wondering as to why the CJP had nominated Justice Ayesha for slot a month before the JCP meeting.
Generally, the agenda of the commission is announced 14 days before its meeting.
It is learnt that the nomination of a female judge has been made public for several reasons. First, the superior judiciary wants to counter the criticism it is facing because of the elevation of a Sindh High Court junior judge Justice Muhammad Ali Mazhar to the SC as well as the nomination of SHC Chief Justice Ahmed Ali Sheikh as an ad hoc judge of the apex court.
Though the seniority principle is not being followed in Justice Aysha Malik's nomination, it is being supported by a vast segment of the society as the first female judge would work in the top court for the first time in the country’s history.
Secondly, sources said different elements within as well as outside the JCP were active to nominate two junior judges of the LHC.
However, after Justice Ayesha’s nomination, their efforts will be stopped.
The sources further said Attorney General for Pakistan Khalid Jawed Khan had played a significant role in highlighting the non-representation of female judges in the SC bench, particularly during JCP meetings.
However, the first female judge’s nomination is also a test for other JCP members, especially Justice Qazi Faez Isa, who are consistently supporting the seniority principle for judges’ elevation to the SC.
Commenting on the nomination of Justice Ayesha, Law Minister Dr Farogh Naseem said she was competent, honest and politically impartial.
Sindh High Court Bar Association President Salahuddin Ahmed said like Justice Muhammad Ali Mazhar before her, Justice Ayesha enjoyed a fine reputation as a judge.
“It would be wonderful to see more women in the upper echelons of the judiciary - whether as a chief justice of a high court or in the SC,” he added.
The SHCBA president, however, said had the seniority principle been followed, the country would already have had a female chief justice of the LHC and an SC judge back in 2002-2003 when Justice Fakhrunissa Khokar was “wrongly and repeatedly bypassed”.
"If the seniority principle is followed, Ayesha Malik will surely become the chief justice of the LHC and then a judge of the apex court in due course,” he added.
“Today, however, she is only the 4th most senior judge in the LHC and other judges have been overlooked, not only in the LHC but also in other provinces.”
Salahuddin noted that besides the SHC CJ, who has been serving at the post for 4.5 years, one could also mention the name of Justice Athar Minallah, who has been serving as the IHC CJ for nearly three years.
The SHCBA president said once again, no reasons for overlooking them were evident.
“We are against the principle of pick and choose and thus we cannot support any out-of-turn appointment made to the SC by the JCP unless it frames consistent objective criteria for making such choices", he added.
The Professional Lawyers Group, which is known as Hamid Khan Group, is consistently demanding following the seniority principle in judges’ elevation to the SC.
However, the Independent Lawyers Group, which is known as Asma Group, has adopted different approach in judges’ elevation in the recent past.
One member of the group believed that Justice Ayesha’s appointment to the SC would be a “great” decision.
However, no formal reaction has issued by members of the Independent Lawyers Group.