Seniority neither requirement nor convention for elevation to SC: body

ISLAMABAD: The suggestion that seniority is a legal prerequisite for the elevation of a junior judge to the Supreme Court is a myth and “there is no [such] requirement in law and Constitution” of Pakistan, the Women in Law Pakistan, an initiative seeking to connect the female lawyers scattered across the nation, said.

In August, Chief Justice Gulzar Ahmed nominated Justice Ayesha A. Malik of the Lahore High Court (LHC) for elevation to the top court as the first-ever woman judge in the nation’s judicial history but many in the male-dominated bar councils declared she’s no Ruth Bader Ginsburg, forcing the Judicial Commission of Pakistan (JCP) to defer her appointment.

The bodies advocate that only the senior-most judge of a high court should be the one elevated to the Supreme Court. Justice Malik is fourth in the seniority order of the LHC.

The latest attempt at doing the same appears to be meeting a similar fate as a section of the legal fraternity called on Chief Justice Ahmed to postpone Thursday’s meeting of the JCP convened to consider the elevation of Justice Malik.

In a statement issued Wednesday, Women in Law Pakistan said “at least 41 times judges have been appointed to the Supreme Court without them being most senior. 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 statement makes 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”.

In addition, 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, a judge of the high court for five years, or an advocate of the high court for 15 years.

Justice Malik has served as a judge on the high court since March 27, 2012.

“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.”

“Seniority as an interim measure will halt conversation for holistic reforms actually needed for greater transparency and representation,” it added.

In case Thursday’s meeting of the JCP is not called off, the Pakistan Bar Council (PBC) and all bar associations would boycott all court proceedings, from the superior judiciary to the lower courts, PBC Vice Chairman Khushdil Khan and PBC Executive Committee Chairman Muhammad Masood Chishti and others warned Monday.

WHO’S JUSTICE AYESHA A. MALIK?

Justice Malik received her B.Com from the Government College of Commerce and Economics in Karachi and studied law at the Pakistan College of Law in Lahore, according to her biography on the LHC website.

She earned her LLM from Harvard Law School where she was a Landon H. Gammon Fellow from 1999 to 1999.

The mother of three used to represent NGOs involved in poverty reduction, microfinance, and skills training on a pro bono basis.

The historic decision prohibiting two-finger and hymen tests on rape survivors across Punjab was also delivered by her. The tests were deemed “illegal and unconstitutional” by her court.

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