ISLAMABAD: On the issue of elevation of a woman judge to the Supreme Court, Justice Umar Ata Bandial had suggested that the names of those be noted down who rejected the proposal for appointing Justice Ayesha A. Malik of the Lahore High Court (LHC) so that history recorded who stood for women’s rights.

During the Sept 9 four-hour meeting of the Judicial Commission of Pakistan (JCP), which was presided over by Chief Justice of Pakistan (CJP) Gulzar Ahmed, Justice Bandial had described the session as a historic day where a woman judge had been nominated to be a judge of the apex court, an informed source told Dawn.

“If we want to miss the opportunity, because such opportunities come scantly and infrequently in life, opportunities to be decisive, to be progressive, it is easy to back off or to get scared, but we have to exercise this choice and make this decision today,” Justice Bandial said.

He cited Article 25(3) of the Constitution, which prescribes making special provision for protection of women and children, and said that throughout the world the highest courts of any land also comprised women judges, recalling that last month three women judges were appointed to the Supreme Court of India — a country which would have its first lady chief justice in 2027.

“We have to progress and decide whether we have the courage and strength to take step in favour of women,” Justice Bandial observed. He requested the JCP to apply the same selection standards for both men and women, but let women stand in a different queue, which meant that a woman judge could not be stopped on the basis of seniority or lack of seniority if she met the standards of competence or capacity or independence.

Justice Bandial emphasised that Justice Ayesha was known to be fiercely independent and probably that was the reason why the bar (legal fraternity) was opposing her nomination and stalling the process which might be a retrogressive step.

At the same time, he stated that the bar was a progressive institution which had always supported constitutional rights and also referred to different articles written by prominent lawyers, for example Salahuddin Ahmed, Faisal Naqvi, Salman Akram Raja and Nida Usman Chaudhry. The standards for appointment to the Supreme Court should not be compromised and best minds should be appointed and let merit be important criteria, he added.

Seniority could not be the principal consideration because this was not a promotion, observed Justice Bandial. He said that expertise on constitutional laws was a must for judges of the Supreme Court, recalling the pendency of over 50,000 cases for which competent judges were needed.

If seniority was the criteria, then there was no need for the JCP as judges in the superior courts would then be appointed through a conveyor belt mechanism, he said, recalling that 41 judges had been appointed to the apex court in the past by bypassing senior judges and some of them included stellar judges who were his heroes.

Referring to Justice Qazi Faez Isa, who was not present in the meeting, Justice Bandial observed that the former did not join the debate because he did not want to oppose this nomination in express words. “He [Justice Isa] may not be favouring it for other reasons but he did not leave a word because it goes on record,” Justice Bandial observed.

He also said that on July 14, Salahuddin Ahmed had written a letter in which he hinted about the criteria, but later he was overtaken by other ideas and interests.

Justice Maqbool Baqar said that they were unnecessarily exposing the nominee to the controversy over protecting women’s rights. He said he stood for women’s rights and recalled how the articles written by lawyers had stressed the need for devising a mechanism to ensure that.

Regarding the separate queue for women judges, Justice Baqar regretted that it appeared as if they were being portrayed wrongly.

He stressed that they stood for democracy, principles, independence and women’s liberation, but they did not want discrimination and did not want to make a non-controversial figure controversial.

The JCP chairman, however, said there was no question of making anyone controversial, adding that no one had discussed the merits of the nominee. Instead, everybody was talking about seniority which has already been decided in the 2002 SCBA case judgement — a verdict binding upon them under Article 189 of the Constitution.

Justice Baqar highlighted resentment in the bar and civil society in respect of the JCP which, according to him, was not without any basis. He said the bar was asking for structured discretionary rules giving a viable solution to the situation and if the bar was taken on board and some workable criteria were evolved, then all future problems would be resolved.

Justice Baqar said that questions were being raised about their [SC judges’] independence and the perception of their independence was eroding.

The sitting chief justice of the Sindh High Court (SHC), who had been appointed as an ad hoc judge of the apex court, was still continuing [as the CJ], Justice Baqar said. This raised a question for determination as to what was the status of his administrative and judicial orders and what was the status of the orders passed by the benches constituted by him, which was likely to cause another crisis, he added.

Justice Baqar also hinted at what he called indiscipline in the SHC and said there was an ethnic spark. Once criteria were settled upon, there would be no difficulty and their perception would improve, he said. “We have moral authority but if the support of the bar, the media and civil society is not with us, we would be more vulnerable,” he warned.

Everybody was supportive of women’s empowerment, but in the present situation they should take the right path that the nominee would come on her turn after her elevation as the LHC chief justice, he said.

Advocate Akhtar Hussain, a nominee of the Pakistan Bar Council, said the bar was of the view that the vacancy should be filled from the Islamabad High Court (IHC), which currently was not represented in the apex court. He said the bar was against the policy of ‘pick and choose’, which was earlier adopted in the elevation from the SHC and was now being proposed from the LHC.

“Our concern is that why the IHC CJ, who otherwise is the senior most, is not being considered to be elevated?” Mr Hussain asked, adding that the bar was not requesting to make nomination of its choice but for elevation on the basis of set criteria.

Published in Dawn, September 15th, 2021