Justice Ayesha Malik — A fiercely opposed judge

LAHORE: For the first time in the country’s history a female judge may get elevated to the Supreme Court, but the nomination of the jurist in question has been fiercely opposed by the legal fraternity.

The Judicial Commission of Pakistan (JCP) in its meeting chaired by Chief Justice of Pakistan Gulzar Ahmed on Thursday with a majority of votes recommended the appointment of Justice Ayesha Malik as a judge of the Supreme Court.

Following the JCP’s recommendation, the matter of her appointment will now be placed before the Parliamentary Committee on Appointment of Judges for final approval.

Chief Justice Gulzar Ahmed, Justice Umar Ata Bandial, Justice (retd) Sarmad Jalal Usmani, Law Minister Farogh Nasim and attorney general of Pakistan supported her appointment.

Justice Ayesha Malik’s name was placed before the commission for the second time today after her name was suggested by CJP Gulzar in August last year.

Read more: JCP approves Justice Ayesha Malik’s nomination as Supreme Court judge

Earlier in September 2021, JCP had put her nomination on hold as the vote during the meeting had ended in a ‘tie’.

Justice Ayesha had received four votes in favour of her appointment while four were cast against her.

Justice Qazi Faez Isa had not participated in the JCP meeting and was absent once again when the body met on Thursday.

If Justice Ayesha’s appointment is confirmed by the Parliament, then she will work for 10 years as a judge of the apex court as her tenure will be extended by three years.

She was scheduled to retire on June 2, 2028, but if her nomination is confirmed then she will retire in 2031.

This means that if Justice Ayesha is elevated, then she will be on course to become the first female chief justice of the country after Justice Yahya’s retirement in January 2030.

However, if Justice Ayesha is not appointed as a judge of the Supreme Court, then there is a strong possibility that she could have become the chief justice of the Lahore High Court in 2026, which would have been a first as well.

Justice Ayesha was born on June 3, 1996, and studied in Pakistan and abroad, including Harvard Law School in the United States. She was an associate of former chief election commissioner and eminent jurist Justice Fakhruddin Ibrahim, and worked with him as an assistant for about four years, from 1997 to 2001.

Read more: CJ Gulzar summons JCP meeting to discuss Justice Ayesha Malik’s elevation to SC

The judge, 55, has also been a part of the law firm of which Justice Qazi Faez Isa is a founder.

Justice Ayesha is an expert in constitutional, banking, tax and human rights issues.

According to the LHC website, she has taught banking and mercantile law in different universities of Pakistan. She has been called upon to specialise in cases of child custody, divorce, women’s rights and women’s constitutional protection in Pakistan, England and Australia.

The judge has collaborated with various NGOs on poverty alleviation, microfinance and skills training programmes. She has also been Pakistan’s reporter for the Oxford Reports for International Law in Domestic Courts, published by Oxford University Press.

Justice Ayesha’s decision on the method of medical examination of female victims of sexual violence is very prominent. The decision of the Sharif family to stop the relocation of sugar mills to the Rahim Yar Khan area of South Punjab is also one of her notable decisions.

The judge is married to Humayun Ehsan, a principal and lawyer of a private law college and has three children.

Rocky appointments?

Justice Ayesha was appointed as a judge of the Lahore High Court on March 27, 2012, ten years after the movement for the restoration of the judiciary began.

The judge was the first woman to be appointed to the bench after a gap of 18 years. She is currently ranked fourth in terms of seniority. Her name was considered over senior judges of the Sindh High Court.

The seniority issue has become a bone of contention while the appointment was being considered by JCP.

Interestingly, when Justice Ayesha was appointed a judge in the LHC, the then Lahore High Court Bar Association had passed a resolution with reservations over the appointment.

Read more: Pakistani Twitter welcome, celebrate Justice Ayesha Malik’s nomination as SC judge

The resolution was passed in a meeting chaired by Justice Shahram Sarwar Chaudhry when he was president of the Lahore High Court Bar Association. Back then Justice Shahram had not joined the LHC as a judge.

A faction of lawyers’ organisations across the country, including the Pakistan Bar Council, have voiced their opposition to the nomination of Justice Ayesha Malik as a Supreme Court judge over the “violation of the principle of seniority”.

A countrywide strike in courts was observed on their call.

They say their protest is not limited to the case of Justice Ayesha and will continue until the authorities end the “pick and choose policy” and establish a JCP seniority.

President Supreme Court Bar Association (SCBA) Ahsan Bhoon said that the lawyers’ associations were not against Justice Ayesha Malik and that the representative bodies wanted the most senior judge to be appointed to the Supreme Court because of the principle of seniority. ۔

Bhoon pointed out that former chief justice Iftikhar Muhammad Chaudhry had started the process of appointing his favourite judges in the Supreme Court against the principle of seniority and ignoring the rules and regulations.

The SCBA president said that the lawyers’ associations had also registered their protest against the qualifications of such judges. He suggested setting up a commission to give a final opinion on the qualifications of judges who, according to him, were appointed to the higher judiciary based on personal preference or dislike.

However, the women lawyers’ association has taken the position that the decisions of the Supreme Court are present on the subject. They argue that the apex court has made it clear that the principle of seniority is not absolute on the appointment of a judge of a high court in the Supreme Court.