Justice Umar Ata Bandial, in the September 9 meeting of the Judicial Commission of Pakistan, had proposed that names of those who rejected the appointment of Justice Ayesha A. Malik be recorded so that historical record showed who stood for women’s rights.
In the presence of Chief Justice of Pakistan (CJP) Gulzar Ahmed, who was presiding over the meeting, Justice Bandial described the session as a historic day where a woman judge had been nominated to be a judge of the apex court.
“Opportunities like these come rarely in life; moments to be decisive, progressive,” Justice Bandial reportedly said. “It is easy to back off or scared but we have to exercise this choice and make this decision today.”
Justice Bandial quoted Article 25-3 of the Constitution, which has special provisions for protection of women and children.
“All over the world, the highest courts of any land also comprise women judges. Last month, three women judges were appointed to the Supreme Court of India, a country which would have its first female chief justice in 2027,” he said.
Justice Bandial reportedly urged a progressive stance. “We have to decide whether have the courage and strength to take a step for women,” Justice Bandial said.
He requested the JCP to apply the same selection standards for both men and women, but added that a female judge should not be stopped on the basis of seniority, or lack thereof, if she met the standards of competence or capacity or independence.
Justice Bandial pointed out Justice Ayesha enjoyed a reputation of being fiercely independent. “Probably this is the reason why the bar was opposing her nomination and stalling the process.”
Justice Bandial also referred to various articles written by prominent lawyers and added that standards for appointment to the Supreme Court should not be compromised and the best minds should be appointed.
“Seniority cannot be the principal consideration because this is not a promotion,” Justice Bandial said.
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.
Referring to Justice Qazi Faez Isa, who was not present in the meeting, Justice Bandial remarked that he did not join the debate because he did not want to oppose this nomination in express words. “He may not be favoring it for other reasons, but he did not leave a word because it goes on record,” he said.
Justice Maqbool Baqar remarked that the nominee was being exposed unnecessarily to controversy over women’s rights. He said 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 under Article 189 of the Constitution,” he said.
Justice Baqar highlighted resentment in the bar and civil society with regards to the JCP. He said the bar was asking for structured discretionary rules which provided a viable solution to the situation. “If the bar is taken on board and some workable criteria is evolved, then all future problems would be resolved.
He said, “everybody supports of women’s empowerment, but in the present situation they should take the right path; 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, not being considered to be elevated?” Hussain asked. “The bar is not requesting to make nomination of its choice, but for elevation on the basis of a set criteria.”