About the Author(s)
On 9th September 2021, the Judicial Commission of Pakistan (JCP) held a meeting on considering the nomination of a lady judge to the Supreme Court. Justice Ayesha A. Malik is the fourth most senior judge on the Lahore High Court, and if she had been raised to the Supreme Court this month, Pakistan would have had its first female Supreme Court judge. In Pakistan’s male-dominated institutions, Justice Ayesha Malik would have had undoubtedly smashed the glass ceiling.
Justice Ayesha Malik’s Education & Professional Career
Justice Ayesha Malik had her primary education in Paris and New York, and her secondary education in Karachi Grammar School. She attended Francis Holland School for Girls in London for her A‐Levels. She went on to the Pakistan College of Law in Lahore to study law and later completed her LL.M. from Harvard Law School in Cambridge, Massachusetts, where she was designated a London H. Gammon Fellow for excellent achievement in 1998‐1999.
She worked with and aided the late Fakhruddin Ebrahim, the former chief election commissioner, from 1997 to 2001. Justice Ayesha Malik worked as a partner in a major corporate and commercial law firm from 2001 until her elevation to a High Court judge in 2012, which is an accomplishment in and of itself.
Volunteer Work & Publications
She had been volunteering as an unpaid counsel for non‐profits involved in poverty reduction, microfinance, and skills training. She is also the author of several publications, including “Why Trade in Financial Services: An assessment of the Agreement on Trade in Financial Services under the GATS, the Journal of World Investment, the 12th edition of the Global Report 2004 on the Independence of the Judiciary-Pakistan Chapter and Pakistan Secular Laws.
On the 50th anniversary of the Supreme Court, Justice Ayesha Malik conjointly compiled the Supreme Court of Pakistan 1956‐2006 Selected Cases, which was published by the Pakistan College of Law. She conjointly contributed to the Merger management, obtaining the Deal Through, being A International Journal of Competition policy and Regulation Global Competitive Review.
Justice Ayesha Malik had been a communicator for Pakistan for the Oxford Reports on the International Law in the Domestic Courts, a publication of the Oxford University Press. She formerly taught banking law at the University of Punjab’s Department of Masters of Business and Information Technology, as well as mercantile law at the College of Accounting and Management Sciences, Karachi.
She even volunteered at Herman Meiner School in Lahore for numerous years, teaching English language and communication skills development. Justice Ayesha Malik has authored over a hundred reported decisions since she was appointed a Judge of the Lahore High Court, and her contribution to the development of civil, corporate, commercial, and service legislation is unparalleled.
Her Ladyship’s legal expertise shines through from ruling the two‐finger test used to establish the virginity of female victims of sexual offense as unscientific and without medical foundation, to holding impoverished cane producers as having prior statutory rights of convalescent the worth of sugarcane over the mighty banks.
Former Prime Minister Nawaz Sharif’s families were precluded from relocating five sugar mills they owned due to Justice Malik’s “historic verdict” in 2016. Her Ladyship found that the respondent sugar mills had violated environmental regulations and had admittedly not acquired required permission.
During her ten-year tenure as a High Court Judge, she has been a ray of hope in the development of jurisprudence across fields that have otherwise remained mostly undiscovered. There is widespread consensus that the fundamental cause of all problems in the judicial system is a delay in deciding cases.
All practicing lawyers at the Lahore High Court would agree that obtaining an adjournment from Justice Malik’s court is exceedingly difficult, if not impossible, as she absolutely understands the plight of litigants stuck for years. Her Ladyship used an out‐of‐the‐box tactic to dismiss a case for non‐prosecution and refuse to reinstate the case until the attorney was willing to make merits arguments.
This strategy has worked staggeringly well and is currently conjointly followed by a number of the opposite judges. Her Ladyship’s finest qualities are her bravery, fearlessness, and honesty. She never chooses a case based on its merits alone, and she respects all lawyers equally. Whether you’re a seasoned expert or a new lawyer, if you can build a credible case, you may be able to receive relief.
Nobody can be treated unfairly in court because of their status or surname. Her Ladyship’s quality of deciding all situations without regard or favor is most praiseworthy, as is her lack of discrimination. Justice Ayesha Malik’s nomination to the Supreme Court, whose professional excellence has been lauded in legal circles and beyond, would have finally shattered the judicial glass ceiling.
The Case of Merit and Seniority
Indeed, our legal system needs to be more inclusive, and it still has a long way to go before it can address the significant gender inequalities that exist. Referring to neighboring country India, Justice Fathima Beevi was the first woman to be appointed to the Supreme Court of India. She retired in April 1992.
Since then, eight female justices have been promoted to India’s top court, including Justice Indira Banerjee, who is currently a Supreme Court judge. However, Justice Ayesha Malik’s upcoming elevation is not universally applauded, as she looks to have some detractors in the country. The bar councils appear to be opposed to it because they feel that only the province’s senior‐most judge should be elevated to the Supreme Court, regardless of merit.
Since then, a heated dispute has erupted between those who value seniority over merit and those who value merit over seniority. As seniority is not a concept, but rather a formula that may or may not be followed, the dispute is that it must always be about merit over all other considerations. It has resulted in the development of two competing criteria for promotion: seniority and meritocracy.
Those who support the former think that the most senior judge on the High Court should be raised to the Supreme Court, while those who support the latter believe that the most qualified of those eligible should be elevated.
The elevation process involves both the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee on Judges’ Appointment. The JCP is made up of the Chief Justice of Pakistan, the Supreme Court’s four senior‐most judges, one former Supreme Court judge nominated by the Chair for a two‐year term, the Attorney General of Pakistan, the Federal Law Minister, and a senior advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council.
Similarly, the relevant Parliamentary Committee is made up of eight members from both the Treasury and Opposition benches. The JCP submits a name to the Committee for Appointment of Supreme Court Judges. The Committee then certifies the proposed name and sends the proposal to Pakistan’s President.
However, the Committee may opt not to approve the nominee by a three‐fourths majority for reasons that must be recorded, by exercising its (relatively) restricted powers. As stated in Article 177(2) of the Constitution of Pakistan, a person may be appointed as a judge of the Supreme Court if he or she has been: (a) a judge of a High Court in Pakistan for not less than five years; or (b) an advocate of a High Court for not less than 15 years.
When choosing a Supreme Court judge, the Constitution does not suggest utilizing the concept of seniority. As a result, the JCP has the power to suggest anybody who meets either of the above criteria.
The subject has been clarified by the case of Al‐Jehad Trust reported as PLD 1996 SC 34. The bench, led by then‐Chief Justice Sajjad Ali Shah, determined that a High Court’s most senior judge had a genuine expectation of being considered for nomination as Chief Justice. The judgment, however, did not apply the criteria of seniority and legitimate expectation to a Supreme Court appointment.
The subject of applying these principles to Supreme Court elevations was further addressed in the judgment of Supreme Court Bar Association vs The Federation of Pakistan judgment reported as PLD 2002 SC 939, the relevant paragraph is reproduced: “…the scope the principles of seniority and legitimate expectancy in those ﴾such﴿ cases is restricted to the appointment of the Chief Justice of a High Court, and the Chief justice of Pakistan, and these principles neither apply nor can be extended to the appointment of Judges of the Supreme Court.”
The idea of seniority in the selection of Supreme Court judges is neither mandated by the Constitution nor interpreted by the courts. Articles 175A and 177(2) of the Constitution provide the JCP the authority to act. A constitutional amendment is the only method to establish seniority as a concept. However, this is not in the best interests of the legal profession.
While the Constitution defined the appointment process and established qualifying requirements for appointees, the beauty of law is that it is a living organism, and the implementation of Article 175A of the Constitution has exhibited two divergent interpretations. The previous Judicial Commission tended to favor the seniority of High Court judges for Supreme Court nominations, but the current Commission appears to be more concerned with the quality of justices, independent of seniority.
The idea of seniority‐cum‐fitness is an element of Pakistan’s service rules, and it is routinely interpreted by superior court justices. Even though it is not included in the Supreme Court’s nomination of judges, it may be significant to those who challenge the legitimacy of such appointments.
The Peshawar High Court unequivocally in its judgment reported as 2014 PLC (CS) 982 held that: “seniority was not a right; there was no vested right to be promoted to a specific post; and the fitness of a person was to be determined by a competent authority alone, as per set criteria”. The judgment also relied upon other Supreme Court decisions that commended and followed the same dicta,
Similarly, when it comes to the selection of Supreme Court judges, the emphasis is on fitness rather than seniority in the current situation. The Judicial Commission, which is a powerful entity, is likewise unrestricted by the Constitution as it consists of nine members, including five of the most senior judges of the Supreme Court.
The criteria of ignoring seniority and focusing on merit are straightforward: if the most senior must be elevated, what is the point of having a Judicial Commission? A deputy registrar can simply calculate seniority and issue a notice. Why cannot we trust the Supreme Court to elevate the most competent judge from the High Court to the Supreme Court?
We trust the Supreme Court as a court of last resort, and we trust Supreme Court judges with matters involving life and property daily, so why cannot we trust them to elevate the most competent judge from the High Court to the Supreme Court? It does not imply that individuals who have been replaced are incompetent. It is more like a battle of the competent.
Defining objective criteria is nearly hard when dealing with such complex heights. As a result, someone must be trusted to deal with the situation, and in this case, the Judicial Commission is the one that must do the right thing.
For the first time in Pakistan’s 74-year history, a female judge, Justice Ayesha Malik, had been nominated for nomination to the Supreme Court based on competence rather than seniority. Embracing the concept of seniority and reducing the JCP’s power may provide some certainty, but it will harm the institution.
The goal should be to establish a procedure that is not only transparent but also ensures the nomination of the best legal brains. If junior judges, from the outset, know of their elevations regardless of making it to to the Supreme Court in the future, the seniority mechanism offers little incentive for them to work hard or to deliver any significant opinions.
With no seniority criteria, there is healthy rivalry among judges to go above and beyond in their job if they want to advance in their careers. The High Court stated that “merit-cum-seniority” places a higher focus on merit and competence, while seniority should play a lesser role.
Currently, not a single woman is sitting on the Supreme Court of Pakistan, but Justice Malik deserves to be raised to the Supreme Court based on merit and a best-of-the-best policy, regardless of gender or affirmative action concerns.
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