By Hasnaat Malik
Published in The Express Tribune on January 09, 2022
ISLAMABAD: After a nearly 75-year wait, the women of the country have broken another glass ceiling as the Judicial Commission of Pakistan (JCP) approved the nomination of a woman as a Supreme Court Justice.
Justice Ayesha Malik’s nomination, who has been serving the Lahore High Court (LHC) since 2012, came after a 5 to 4 vote count in her favor and subject to proceedings in front of a parliamentary committee will be elevated to the highest court of land.
Before she was Justice Ayesha, however, she taught law as a lecturer of Banking Law at the University of Punjab and a lecturer of Mercantile Law at the College of Accounting & Management Sciences in Karachi. Her legal portfolio includes appearances before the High Courts, District Courts, Banking Courts, Special Tribunals, and Arbitration Tribunals. At one point, she was called upon as expert witness in family law cases conducted in England and Australia involving issues of child custody, divorce, women rights, and constitutional protection for women in Pakistan.
However, the journey for Justice Ayesha, who holds a Master in Laws (LLM) from the Harvard Law School, to a Supreme Court (SC) slot, has been marred with protests from the legal fraternity. In September of last year, when the JCP considered her for elevation for the first time, the legal fraternity observed a strike and boycotted all court proceedings. During the JCP meeting held on September 9, Justice Umar Ata Bandial, said that LHC’s Justice Ayesha Malik was known to be a fiercely independent judge and that was why the bar was opposing her appointment as SC judge.
However, back then a consensus could not be reached and the vote was split 4 to 4 – with one member, Justice Qazi Faez Isa, not being able to attend the meeting on account of being abroad.
Fast forward to January, earlier during the month the Pakistan Bar Council (PBC) had requested lawyers to boycott court proceedings in protest, once again. The purpose of the protests, like last time, was Justice Ayesha not being high enough on the seniority list, fourth amongst the LHC judges, and thus ineligible for elevation as per the seniority principle.
Chief Justice of Pakistan (CJP) Gulzar Ahmed, Justice Umar Ata Bandial, retired judge Sarmad Jalal Osmani, Attorney General of Pakistan (AG) Khalid Jawed Khan, and Law Minister Dr Farogh Naseem endorsed Justice Ayesha’s name for appointment as a Supreme Court judge in the JCP meeting convened on 6 January. Whereas, Justice Qazi Faez Isa, Justice Maqbool Baqar, Justice Sardar Tariq Masood, and PBC representative Akhtar Hussain opposed her nomination – for some in the legal fraternity a historic 5 to 4 split. Despite the split, an insider revealed to The Express Tribune that none of the members raised any questions on the competence of Justice Ayesha.
AG Khalid Jawed Khan, who was amongst the 5 in favor of Justice Ayesha’s appointment, in an exclusive interview with the Express Tribune, revealed that he supported her appointment on the basis of merit and competence. The AG said that historically as well as in terms of binding precedent, seniority alone is not the criteria. “Justice Ayesha has dealt with complex constitutional, commercial, and corporate issues and delivered judgments which are of very high quality and meet the standard expected of a judge of the highest court,” he elaborated.
However, the AG acknowledged the arguments raised by the opposing members of the JCP and said that they were plausible and valid. The opposing 4 had insisted that criteria should be evolved for the appointment of superior court judges first, adding that the seniority principle should be followed for the appointment of all SC judges.
“Even a perception about pick and choose is highly damaging for the court and that needs to be addressed. The best way to avoid that perception is the adoption of an objective criteria in which merit and many other factors are considered,” the AG suggested.
AG Khalid, who wrote a letter to the different Bars of the country back in August requesting input for adoption of a criteria, informed: “I had mentioned a number of criteria in my letter and suggested that these could be added. After that I proposed to the Chairman JCP that a Committee be formed to adopt formal criteria which should then be made part of the Rules, 2010. However, I added that such criteria should be followed in future and we should not withhold the present appointment of Justice Ayesha as she meets the basic criteria that I otherwise proposed.”
Others in the legal fraternity who lauded the JCP’s decision as a landmark one in the country’s history, like the AG, were in unison about Justice Ayesha’s abilities. Barrister Ambreen Qureshi, while talking to the Express Tribune, said, “I am delighted that Justice Ayesha will be joining Pakistan’s top bench as a Judge. Justice Malik’s outstanding legal ability will not only add diversity of experience but will ensure maintainability of high quality judgements of the country’s highest court.”
However, the nomination of Justice Ayesha, who could potentially become the CJP after the retirement of Justice Yahya Afridi in January of 2030, is quite late compared to nominations of female SC judges of other countries in the region. For instance, India appointed their first woman, a Muslim for that matter, to the Supreme Court back in 1989 – Justice Fathima Beevi. Whereas, in Bangladesh, Justice Nazmun Ara Sultana, has served on the Supreme Court’s Appellate bench since 2011. Dr Adil Najam, who is the inaugural dean of the Pardee School of Global Studies at Boston University, in an opinion article, written six years ago, titled “Why is there no woman on our Supreme Court?,” states: “In 1994, former prime minister Benazir Bhutto nominated five female justices for high courts. She nominated Fakhar-un-Nisa Khokhar and Nasira Iqbal in Lahore, Justices Talat Yaqub and Khalida Rashid Khan for Peshawar, and Justice Majida Rizvi in Sindh. Majida Rizvi’s name was sent in 1989 during the first tenure of the Pakistan People’s Party (PPP) regime. At least three of them could have made chief justices of their high courts – the clearest path to the Supreme Court. None did.
The first is about more than unfortunate timing. Justice Majida Rizvi was appointed to the Sindh High Court on the same date (June 6, 1994) as Justice Rana Bhagwandas. However, a dispute arose on the question of seniority between them and Justice Nazim Siddiqui that eventually required a Supreme Court judgment. It did not end in her favor. The irony was that had Pakistani society and politics been ready to appoint a woman when she was first recommended in 1989 she would have certainly become chief justice of the Sindh High Court but probably the first woman to serve on the Pakistan Supreme Court. A brilliant mind, Justice Majida Rizvi went on to become the chairperson of the National Commission on the Status of Women and became a strong voice against the Hudood Ordinances.
The second case was more devious. By all accounts Justice Khalida Rasheed Khan is equally brilliant. Appointed while still young, she was on her way to become chief justice of the Peshawar High Court. According to Justice Nasira Iqbal, she was then told to leave the court on a foreign assignment but “realizing that she was being sidelined from [becoming chief justice she] protested.” To no avail. That she has eventually risen to high position in the international judiciary – now president of the International Criminal Tribunal for Rwanda – is a matter of pride for Pakistan. But that pride could have been home-grown had she become high court chief justice and/or justice of the Supreme Court.
The third instance is outright discriminatory. No one disputes that Justice Fakhar-un-Nisa Khokhar was the senior judge on the Lahore High Court when CJ Falak Sher retired in 2001. The same tactic was applied: she was nominated without her consent to the Environmental Tribunal. She refused to leave and the matter went up to the chief justice of the Supreme Court. She stayed, but was not made chief justice, nor elevated to the Supreme Court. She now serves as a PPP MNA.”
Despite women being denied in the past, the legal fraternity is of the opinion that better late than never. Barrister Asad Rahim Khan said that it is fortunate that a requirement with no basis in the law or precedent was not made the basis of appointment. “The current constitutional process for judicial appointments is there for a reason; it’s also why those calling for criteria have yet to frame any of the criteria in question. Justice Ayesha’s elevation is a heartening development,” he added.
Similarly, Chairman Senate Standing Committee on Law & Justice, Barrister Ali Zafar, was also elated, stating that Justice Ayesha is an excellent jurist and would be a valuable asset to the Supreme Court. “Her appointment is also a landmark moment because for the first time in the judicial history of Pakistan, we have a woman Justice in the Supreme Court, the highest of the noble offices. I, for one, am proud of our Pakistani women,” he said. Zafar was also of the view that steps should be taken to avoid such an appointment hassle in the future, stating: “The issue of framing a criteria and standards for appointments to the Supreme Court must be resolved once and for all because absolute unbridled discretion should not be left to the majority members in the judicial Commission to pick and choose. Parliament will have to urgently pass a law for this purpose.”
The AG believes that the nomination of Justice Ayesha, who was once a partner of the very firm that Justice Qazi Faez Isa was a partner at, is not a favor of any sort but instead the breaking of a glass ceiling. “As to the gender issue, I told the JCP that women are not seeking any favor or preferential treatment. They want equality and removal of artificial barriers raised. Removal of such barriers may require positive action so as to ensure equality. That is also a constitutional obligation in terms of Article the 25 of the Constitution of Pakistan,” AG Khalid Jawed Khan told the Express Tribune.