There are a number of problems with the elevation of Justice Malik of the Lahore High Court to the Supreme Court, not the least of what criteria were followed, apart from the sheer desire of the Chief Justice of Pakistan. The demand by some members of the Judicial Commission of Pakistan for objective criteria to go by was not met. It transpires that, for want of such criteria, all the JCP has is seniority, and on that count, Justice Malik does not qualify, as she is only fourth on the seniority list of the Lahore High Court. Even if it is argued that she is the most senior woman judge of a high court, such entitlement-based allocations tend to dilute the quality of the Bench. It is almost as if the criteria actually being used cannot be reduced to writing, or cannot be disclosed. Justice Malik’s appointment is crucial, for she would have a legitimate expectancy of becoming Chief Justice. Now the position of CJP or chief justice of a high court is clear: there seniority is the criterion. However, there is no criterion or criteria for judges of either the high courts or the Supreme Court. There are only unspoken traditions.
Because of that lack of criterion, it is not known why the affected judges of the Lahore High Court have been superseded, or the basis on which Justice Malik is being elevated, what exceptional qualities as a jurist she enjoys, which make her presence on the Supreme Court so necessary. As it is, she did not need to be elevated at this point, and could have waited her turn according to seniority, which would still have led to her elevation later. The reason for this haste is not to be understood, and even the suggestion that this appointment not be made in the tenure of the present CJP, who is to retire next month, but by his successor, was not accepted. While the JCP has made its recommendation, it has been made on a divided vote. It is now for the Bar to act so as to make this division in the Bench go away.
