Black coats’ ability to resolve differences under the microscope

At a time when mercury is going down and political temperature shooting up because of the confrontation-like situation created by the government and opposition parties, Chief Justice of Pakistan’s proposal to have a junior female judge of the Lahore High Court elevated as the first one from this gender to the apex court has created a sort of a gulf between the judiciary and the lawyers' community. 

Nobody knows the result of the tensions between the bench and the bar, the two wheels of the judicial organs that have their respective roles in deciding all kinds of disputes in society. At stake is the image of the legal fraternity and their ability to settle their own differences. 

CJP Gulzar Ahmad wants Justice Ayesha A. Malik elevated. The Judicial Commission of Pakistan is the relevant forum for the purpose. 

It is responsible for the appointment of judges to the Supreme Court and five high courts of the country.  

The CJP heads the commission as its chairman 

The Commission met on September 9 but failed to take a decision because of a lack of consensus.  

The lawyers’ organizations are opposed to the very proposal of the CJP on the ground that it is against his own judgment that the CJP cannot give such a proposal so close to his retirement. 

Now the Judicial Commission of Pakistan is scheduled to hold another meeting on the same issue on Thursday (January 6) and lawyers’ organizations have already decided to boycott all courts on the day.     

Representatives of Pakistan, provincial and Islamabad bar councils, Supreme Court Bar Association and all the high court bar associations at a meeting a few days ago expressed their commitment to the independence of the judiciary, rule of law and establishment of real democratic institutions in the country. 

They opposed the nomination of Justice Ayesha Malik for appointment in the Supreme Court, violating the seniority principle, superseding three judges of the Lahore High Court (LHC) including the chief justice, who are not only senior to her in service but also senior in legal practice before their elevation to the high court. 

Justice Ayesha became an LHC judge in March 2012 and is currently on number four on the LHC judge seniority list. 

In case she is elevated, she will work as the Supreme Court judge until June 2031. Also, she will also become the chief justice of Pakistan after the retirement of Justice Yahya Afridi in January 2030. 

The lawyers are demanding laying down the criteria for the elevation of judges to the superior judiciary not only for appointment in the Supreme Court but also in the High courts and the Federal Shariat Court. 

They also plan to approach the parliament and all the political parties for amendments in Article 175A and Article 209 of the Constitution with regard to the appointment of judges in the superior courts and the removal thereof. 

There are reports that Justice Qazi Faez Isa of the Supreme Court also wants the judicial commission to evolve criteria for the appointment of superior court judges. Himself a member of the commission, Justice Isa has reportedly written a two-page letter to all members urging them to set criteria for the appointment of SC judges. 

He questioned Rule 3 of the Judicial Commission of Pakistan Rules, 2010.  It lays down the process for judicial nominations but makes no mention of the words ‘senior-most' judge’ for the appointment. It grants discretionary power to the Chief Justice of Pakistan (CJP) to initiate the name of a high court judge for appointment to the SC and high courts. 

He also referred to Article 175-A of the Constitution which does not permit CJP to exercise 'unfettered discretionary power' to nominate high court judges for the apex court. 

During the previous meeting, another JCP member Justice Maqbool Baqar had also urged the commission members to evolve criteria first before initiating the name of Justice Ayesha Malik. 

Will the Judicial Commission of Pakistan be able to take a decision on the subject when there is a difference of opinion among its members?  

Should the lawyers review their courts' boycott decision to let the JCP take an independent decision?  

Should Justice Ayesha A. Malik request the JCP to stop considering her elevation for the sake of the unity of the lawyers’ community?  

These are all questions people will wait for answers to. It will not be wrong to say that the ability of the black coats to resolve their differences is under the microscope.