Justice Ayesha Malik poised to become first woman SC judge

By Muhammad JuniadPublished On 05 Jan 2023

The Judicial Commission of Pakistan (JCP) has approved the elevation of Justice Ayesha Malik to the Supreme Court of Pakistan as a judge. She is poised to become the first woman judge at the apex court.

The JCP approved her name in a 5 to 4 vote.

The nomination needs to be endorsed by the Parliamentary Committee on Appointment of Judges.

It is the second time that the JCP has deliberated on Justice Ayesha Malik’s name in its meeting. In September 2021, a JCP meeting ended without a decision on Justice Ayesha Malik’s appointment to the Supreme Court.

Lawyers’ bodies had protested against her elevation to the Supreme Court, claiming the move would violate the seniority principle which mandated the only the most senior judge from a high court could be elevated to the Supreme Court of Pakistan.

On September 9, four members of the JCP voted in favor of her appointment and four in opposition. The ninth member Justice Qazi Faiz Isa did not attend the meeting as he was not in the country.

Justice Malik is a judge at the Lahore High Court. Her name was again proposed by the Chief Justice of Pakistan for the elevation to the Supreme Court of Pakistan last month.

On a call from the Pakistan Bar Council (PBC), lawyers on Thursday observed a complete strike at the apex court as the JCP met to decide on her nomination.

Reports say Justice Qazi Faiz Isa was among the four members of the JCP who on Thursday opposed the elevation of Justice Ayesha Malik to the Supreme Court.

‘Glass ceiling has been shattered’

The approval by the parliamentary panel is considered a mere formal requirement. Hence, people have reason to believe that for the first time in the 74 histories of Pakistan a woman has made it to the Supreme Court of Pakistan.

Social media is abuzz with the news and comments.

“The glass ceiling has been shattered. Judicial Commission of Pakistan approves nomination of Justice Ayesha Malik for her appointment as Supreme Court Judge,” TV anchor Maria Memon posted on her Instagram profile,

PTI MNA Maleeka Bokhari congratulated the Pakistani nation for “an important & defining moment in our country.”

She also referred to the “shattering glass ceilings.”

When Justice Malik becomes the SC judge

Under the constitution and the rules set out for the appointment of judges to the higher judiciary, the JCP recommendations are sent to the Parliamentary Committee on the Appointment of Judge.

The committee may confirm the nominee by a majority of its total membership within 14 days, failing which the nomination is deemed to have been confirmed.

However, the committee may not reject the nomination, for reasons to be recorded, by three-fourth majority within 14 days and forward the decision to the JCP through Prime Minister. In such case the JCP will send another nomination.

If the Committee approves the nominee or makes no decision in 14 days, the name of the judge is sent to the prime minister, who forwards it to the President for appointment.

The rules have been explained on the Supreme Court of Pakistan website.

Who is Justice Ayesha Malik

Justice Malik has been a Lahore High Court judge since March 27, 2012. She did her BCom from the Government College of Commerce & Economics, Karachi and studied law at Lahore’s Pakistan College of Law, according to her profile on the Lahore High Court’s website. She then went on to complete her LLM from Harvard Law School, where she was named London H Gammon Fellow 1999-1999.

The mother of three children used to fight pro bono cases for NGOs working on poverty alleviation, microfinance, and skills training programmes.

After elevation to the judge of the apex court, she would serve as the judge for 10 years. She may even become the Chief Justice of Pakistan after the retirement of Justice Yahya Afridi in January 2030. She would hold this office for a year or so, sources have said.

Pakistan was the only country in South Asia to not have appointed a woman judge in the Supreme Court. The Human Rights C0mmission of Pakistan said, in a report, that only 5.3% of the country’s judges are women. The number is the lowest in South Asia.

Pakistan had appointed Khalida Rashid Khan as its first woman judge in 1974. She was appointed anti-corruption judge and then elevated to the high court in 1994.

Ruling on two-finger and hymen tests of rape survivors

Justice Ayesha A Malik had authored the landmark verdict banning two-finger and hymen tests of rape survivors in Punjab.

The court had ruled the tests to be ‘illegal and unconstitutional.

The 30-page verdict said “virginity testing is highly invasive, having no scientific or medical requirement, yet carried out in the name of medical protocols in sexual violence cases.” The “humiliating practice is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence.”

The verdict said that these tests are a blatant violation of the dignity of a woman. “The conclusion drawn from these tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim,” it added.

Cases should be investigated on the basis of whether the accused person raped the survivor or not. “If the victim is found to not be a virgin it cannot and does not suggest that she was not raped or sexually abused.” This shifts the focus of the case on the virginity status of the survivor, it said.

“The victim’s sexual behavior is totally irrelevant as even the most promiscuous victim does not deserve to be raped, nor should the incident of sexual violence be decided on the basis of a virginity test,” the verdict added.

Punjab banned the two-finger test for rape and sexual violence survivors on November 13.