Lahore High Court Junior Judge Justice Ayesha Malik became the First Lady Judge of Supreme Court. If She remains in the service and is approved by Parliament Comment she will be the First Lady JCP A divided decision of JCP by 5/4. Lawyers observed strike today.
Congratulations to Hon Justice Ayesha Malik. An Important & defining moment in our country as a brilliant lawyer & decorated judge, the Elevation of Justice Ayesha Malik as the first woman Supreme Court judge is a welcome step. She authored the judgment to do away with the archaic two-finger test for sexual assault survivors.
Sad to see liberals & feminists, who have no clue about the evolution of bar politics & dangers faced by judicial independence, making an issue of Ayesha Malik's appointment about patriarchy! They are being taken for a ride by social liberals but otherwise fascist sections of the judiciary!
"it has nothing to do with gender" but I'll reiterate: Opposition to J. Ayesha's isn't borne out of patriarchal control! Establishment & its lackeys in judiciary r employing a good judge to control high courts undermine judicial independence!
background story & I'll summarize the evolution of Bar's position:
I know there is a misleading figure making rounds that 41 judges since 1947 have been elevated in violation of seniority principle, but what it ignores is that very few judges have been elevated post-1996 Al-Jehad Trust case, that is when it was laid down. 2ndly there have been 100s of appointments since 1947.
Post-Al-Jehad case, seniority was the norm & deviation a RARE exception but ever since the hybrid experiment, exceptions became more regular but the judges who were either gen solid and/or appeared to be relatively independent-minded but slowly the Bars started observing that the elevated judges started acting like lackeys & idiots once elevated.
2ndly, elevation came to be employed as a tool to punish independent-minded CJs of High Courts CJ Waqar Seth, Athar Minallah, Mandokhel, Qasim Khan, CJ Shaikh are
few examples.
Qazi Faez vs. Anti-Faez/Military Camp: The Division of SC & the stacking of cards against Faez & other like-minded judges
The Bars realized imp of having like-minded judges in SC during QFI's reference hearing
For Bars having Indpndnt minded Judges at SC is imp for several reasons:
Independent decisions & more room for const rights
Sr. judges control Judicial Council & Judicial Commission both are critical judicial independent
If you can appoint your people at SC, you can control the entire judiciary of Pak thru legally binding judgments, judicial appointments & elevations, & disciplining instruments
Judges required for Benches at SC: JCP has the power to form benches but the JCP needs compliant judges to sit with him & head other benches, as he can't hear all the cases himself. Establishment CJs hv been have been already having trouble in controlling QFI, MB, MAS & Yahya, who hv been dissenting, now they don't want others to join their ranks Remember when Saqib Nis committed the mistake of including Qazi Fiaz Issa & Mansoor Ali Shah on a bench & both dissented with/ him over the exercise of his suo motu powers? Outflanked by 2 INDEPENDENT judges Saqib Nisar had to abruptly adjourn for the reconstitution of the bench ... Independence-minded is the real reason why Qazi Faez & Baqar are rarely made part of imp constitutional benches despite being senior-most judges while Ijaz ul Ahsan & Qazi Amin are part of every imp bench. MB & QFI are just hearing innocuous civil matters &/or jail appeals ... Independence is the reason that SC went out of its way, reconstituted a bench, excluded MB & restrained Qazi Faez from hearing matters involving Imran Khan. Unprecedented shit has been happening at the SC. Now compare all of this with J. Ayesha's track record.
Going back to the evolution of Bars' position:
It's being falsely claimed that it's the 1st time Bars are raising the issue. By the time of J. M Ali Mazhar's out-of-turn appointment, many months before J. Malik, the lawyers organized & went on strike .... An elected President/leader of the SHC Bar Assoc, a progressive with solid lineage & credentials to back up, Salahuddin Ahmed organized an all Pakistan seminar of the legal fraternity, wrote about it.
Hamid Khan, head of Professional Group, spoke at an all Pak convention, where all representatives of the legal fraternity gathered to oppose the out-of-turn elevation of J. M Ali Mazhar. This was many months before J Ayesha Malik was nominated ... Not to say that more female representation is needed or there hasn't been institutional discrimination against women. 2 female justices, Fakhar-un-Nisa Khokhar (LHC) & Khalida Rashid Khan (PHC), had a legitimate expectation to become CJs of the High Court of Punjab & KP Instead of J. Fakhar-un-Nisa, J. Ch. Iftikhar her junior, was appointed as CJ LHC by liberal darling Musharaf. She's made a pariah & no work was assigned to her, thus, making her idly sit through the Court ... Similarly, Justice Khalida Rashid was to become the Chief Justice of the Peshawar High Court in 2011. However, she was forced to opt for the International Criminal Tribunal on Rwanda, her other option was to quit. She chose the first option
By elevating J Ayesha out of turn, don't deny her opportunity to become 1st female Chief Justice of the oldest Court of Pak for more than 2yrs. She'll eventually end up in SC as well! Don't subvert the process & make her controversial ... Also, I ask: If seniority is not the criterion for elevation, atm, then what are the criteria? All I have heard are versions of this: juniors judges have been elevated before, therefore Ayesha Malik shud be also elevated? Hate to say but two wrongs don't make a right It is factually incorrect to say that the Bar has been just a disruptive force or failed to posit a positive case/criteria.
Similarly, Sindh HC Bar the most progressive bar of Country has filed a constitutional petition before the Supreme Court for framing of rules to structure both the process of appointments & criteria & parameters. The petition has been pending before SC Re-nomination of J Ayesha, by the same JCP, without any changes in material circumstances since the last rejection is illegal, to begin with. What is going to stop JCP/Chairperson JCP from calling a meeting over the same nominee every day until he gets his way?
None is allowed to exhaust & burden the system by litigating the same cause ad infinitum if there are no changes in material circumstances. e.g. Same rationale behind disallowing more than 1 bail petition & res judicata. The debate over 3rd Brexit vote in Commons
...QFI is right:
"If concerns expressed by lawyers & judges were left unaddressed, then public confidence erodes. A single vote cast this or the way might get a candidate in, but arbitrariness undermines the credibility of judiciary & those selected start work under a cloud of partisanship."
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