Amid lawyers protest across the country, Justice Ayesha Malik of the Lahore High Court could not be elevated to the Supreme Court, sources privy to the development told The Express Tribune on Thursday.
They said the Judicial Commission of Pakistan (JCP) could not evolve a consensus on the elevation of the first female judge to the apex court.
Under the Constitution, the JCP with a majority vote recommends elevation to the top court.
Chief Justice Gulzar Ahmed, Justice Umar Ata Bandial, Attorney General for Pakistan (AGP) Khalid Jawed Khan and Law Minister Dr Farogh Naseem supported her nomination.
However, Justice Maqbool Baqar, Justice Sardar Tariq Masood and Justice, Justice (retd) Dost Muhammad Khan and Pakistan Bar Council representative in the JCP Akhtar Hussain opposed it.
Justice Qazi Faez Isa, a member of the JCP, was absent from the meeting.
It is pertinent to mention here that no female judge has ever been elevated to the Supreme Court in the judicial history of Pakistan.
Lawyers across the country went on strike on Thursday and boycotted court proceedings against the appointment of junior judges to the SC.
Supreme Court Bar Association (SCBA) President Latif Afridi informed the CJP of the protest through a letter sent on August 21.
The AGP said in his opinion submitted before the CJP that the appointment of the first woman judge to the apex court “would have been a historic occasion”.
“I would prefer that the first woman judge be appointed by unanimous recommendation of the members of JCP as well as full support of the Bar. Such happy occasion does not appear to be materialising today,” he wrote in his note.
Since the consensus for evolving criteria for appointment to the Supreme Court has yet to develop and the response of the bar is awaited, the AJP recommended that the JCP may consider and decide the following: “The JCP may decide and resolve that henceforth there shall at least be one seat, with the possibility of more in future, earmarked for appointment of a woman as judge of the Supreme Court of Pakistan.”
The AGP also suggested that the nomination of Justice Ayesha may be deferred till the next meeting with a request to the CJP to consider nomination the names of female judges from each high court.
The sources told The Express Tribune that JCP new member Justice Sardar Tariq Masood had opposed the nomination of Justice Ayesha on several grounds. He claimed that the allocation of seats for female judges in the top court was against Article 25 of the Constitution. Justice Bandial strongly objected to this observation.
Justice (retd) Dost Muhammad said a constitutional amendment would be required for allocating quota for female judges in the apex court.
However, senior lawyers are wondering that when it was clear that a consensus could not be evolved, then the JCP meeting could have been cancelled to avoid embarrassment for the nominee.
Lawyers are urging both sides of the JCP to evolve a consensus on the criteria on judges’ appointment.