At present, the Judicial Fee of Pakistan will take into account the nomination of Justice Ayesha Malik to the Supreme Courtroom (SC). Justice Ayesha Malik would be the first lady to succeed in the apex courtroom, if appointed, and in future may be appointed because the Chief Justice of Pakistan. Nonetheless, attorneys throughout the nation will record their protest today.
Why are attorneys protesting?
As per senior journalist Hasnaat Malik, the attorneys are protesting right this moment throughout the nation as a result of their most important concern is that the Supreme Courtroom judges ought to be appointed on the premise of seniority.
Hasnaat Malik says that one section of attorneys consider that Justice Ayesha Malik ought to first function the Chief justice of the Lahore Excessive Courtroom, including that many of the authorized fraternity believes that Justice Ayesha is competent however the seniority precept shouldn’t be bypassed in her case both.
Then again, Hasnaat says, there are various within the authorized fraternity who wouldn’t need this choice to be taken again as Justice Ayesha is making historical past for being the first female Supreme Court Justice in Pakistan.
Nonetheless, he mentioned that it might have been higher if the Chief Justice of Pakistan had initiated the title of Justice Ayesha after taking confidence of all stakeholders, together with superior bars.
Is her potential elevation in opposition to the legislation?
Senior lawyer Abid Saqi, whereas speaking solely to The Present, mentioned that protest shouldn’t be person-specific. “I, personally, see no violation of the Structure in her appointment. Attorneys are asking for sure amendments to make sure an inclusive course of like equality within the variety of judges and different stakeholders and to have set standards for such appointments within the increased judiciary.”
Hasnaat Malik instructed The Present that that legally there isn’t any situation within the appointment of Justice Ayesha Malik within the Supreme Courtroom. “In actual fact, a minimum of 41 judges have been appointed within the SC bypassing the seniority precept, however the primary concern of the attorneys who’re protesting is that out-of-term appointments go away a query mark on the independence of SC judges.”
“Attorneys additionally allege that notion of favouritism/nepotism can’t be dominated out in out of flip appointment of final 5 Supreme Courtroom judges,” added Malik.
“Anybody who has accomplished 5 years in Excessive Courtroom may be appointed within the Supreme Courtroom,” he added.
Seniority solely applies in case of appointment of the chief of any courtroom. As per Article 175(A) of Pakistan Penal code clause 3 : “However something contained in clause (1) or clause (2), the President shall appoint probably the most senior Choose of the Supreme Courtroom because the Chief Justice of Pakistan.”
To study extra in regards to the divide within the authorized fraternity, The Present additionally spoke to 2 attorneys, one who’s within the favour of the protest and one who shouldn’t be taking part within the protest.
In favour of the protest: Salahuddin Ahmed, President Sindh Excessive Courtroom Bar Affiliation (SHCBA)
President of Sindh Excessive Courtroom Bar Affiliation (SHCBA), Salahuddin Ahmed, instructed The Present that the protest is in opposition to the Judicial Fee’s (JC) failure to outline any standards on the premise of which they are going to make future appointments to the Supreme Courtroom.
“Within the final 3-4 years, they (Judicatory Fee) have deviated from the same old apply of appointing probably the most senior Excessive Courtroom judges and even appointed judges who ranked No 26 in seniority,” mentioned Salahuddin Ahmed.
Attorneys need the JC to elucidate how they choose the pool for appointments and on what foundation they choose and select amongst them.
“Presently, there are critical allegations of favouritism and appointments being made purely on the premise of likes and dislikes,” he mentioned.
“So for instance, the current disaster erupted when the JC final month neglected the CJ of Sindh (who’s probably the most skilled HC decide in Pakistan and whom the JC itself chosen to go your entire judiciary of Sindh 4 and a half years in the past) in favour of a decide who ranked fifth in seniority. No cogent motive for overlooking the second, third and fourth was given both.”
“So the Bars insist that the JC ought to body a system that buildings its absolute discretion in appointments and lays down goal standards for elevations to the SC. Until then, they need to not depart from the seniority precept in appointments which has been the customary (if not invariable) apply,” President SHCBA instructed The Present.
He made it clear that there isn’t any protest in opposition to Justice Ayesha Malik as such. “She is a superb decide. Nonetheless, the Bars are protesting in opposition to ANY appointments made to SC (whether or not male or feminine) on the premise of an arbitrary choice by the JC and not using a defining precept/standards.”
“If the standards is solely advantage (and never seniority or some other consideration), then why has the JC solely referred to as for data of solely the top-4 judges of the LHC and never from some other province or from the Islamabad Excessive Courtroom? And if the current appointment is supposed to extend gender variety then why have the data of Mussarat Hilaly — an equally senior decide of the Peshawar Excessive Courtroom — not been summoned?”
Towards the protest: Senior Lawyer, Abuzar Salman Khan Niazi
Speaking to The Present, senior lawyer Abuzar Salman Khan Niazi, Managing companion The Crown Legislation Chambers, termed the decision of the protest as “unreasonable, irrational and unjustified” including, “Bar councils are simply attempting to claim their authority with none authorized justification.”
He additionally mentioned that the attorneys are protesting in opposition to the elevation of Justice Ayesha.
Speaking in regards to the authorized facet of her appointment, Abuzar Niazi mentioned that the “elevation of Justice Ayesha is in accordance with dictates of the Structure and legislation of Pakistan.”
Bar councils’ and bar associations’ demand of appointment on foundation of seniority shouldn’t be legally tenable and has no constitutional foundation, mentioned Abuzar Niazi.
He mentioned that courts have already held that the elevation within the Supreme Courtroom is recent making use of, and doesn’t require following seniority precept.
“The Supreme Courtroom of Pakistan in 2002 in Faqir Muhammad case has already held that appointment within the SC doesn’t require following the seniority precept. Sindh Excessive Courtroom additionally held the identical in 2019. So the legislation is settled. Attorneys demand aside from being unlawful and unconditional can be unreasonable.”
Abuzar additionally instructed us that previously, many judges have been appointed within the SC with out following the seniority precept. For instance, Justice Faqir Muhammad Khokhar, Justice Saqib Nisar, Justice Asif Saeed Khosa, Justice Gulzar Ahmed, Justice Aminudin Khan, Justice Munib Akhter, Justice Mazahir Naqvi, Justice Qazi Amin and varied others.
“So, in a nutshell, nothing novel and unlawful,” he mentioned.
Speaking about Justice Ayesha’s competency, he mentioned, “Justice Ayesha is an distinctive jurist, she is competent and enjoys an excellent fame. Her integrity is unquestionable. Within the final decade, She has survived like an iron girl in bar and bench profoundly dominated by chauvinism. The bar councils and bar associations have been by no means supportive of her as she by no means succumbed to their strain previously.”
Who’s Justice Ayesha Malik?
As per the Lahore High Court website, Justice Ayesha Malik accomplished her schooling from Colleges in Paris and New York and did her Senior Cambridge from the Karachi Grammar College, Karachi. She then did her A’ Degree from Francis Holland College for Women in London. She accomplished her B.Com from the Authorities School of Commerce & Economics, Karachi and studied legislation at Pakistan School of Legislation, Lahore. She went on to do her LL.M from Harvard Legislation College, Cambridge, Massachusetts, U.S.A. the place she was named a London H. Gammon Fellow 1998-1999 for excellent advantage. She assumed workplace in March 2012.
Fascinating truth: Justice Ayesha Malik’s profile on LHC’s web site states: “She is fortunately married and has three youngsters.”
Earlier, the Human Rights Watch (HRW) welcomed the nomination of Justice Ayesha Malik to the Supreme Courtroom of Pakistan.
As per the HRW report, “Solely about 4 per cent of Pakistan’s Excessive Courtroom judges are girls. Of the three,005 Pakistani judges within the decrease and better courts, solely 519 – or 17 per cent – are girls.”