The Iron Lady

“Iron lady” as a metaphor is often used to describe strong, uncompromising female heads of government around the world. The phrase was first used for Margaret Thatcher, the longest serving British Prime Minister of the 20^th century and the first woman to hold that office. This article is certainly not about the British Prime Minister though, as we have a fair share of iron ladies in our part of the world as well.

In Pakistan, being a lawyer is a tough job and being a litigator is an even tougher one. On top of that, if you are female, the chances of making a name for yourself or a successful career in law are very slim. The environment is not conducive at all. However, things are rapidly changing and we are seeing many dynamic female lawyers do a fantastic job. In this regard, someone who has broken a glass ceiling and ascended to the top is Justice Ayesha A. Malik, a judge of the Lahore High Court.

Her Ladyship holds an LL.M. degree from Harvard Law School and before her elevation to the Lahore High Court as a judge in 2012, she was a partner at a leading corporate and commercial law firm which in itself is no mean feat. She has authored more than a hundred reported judgments and her contribution in the development of civil, corporate, commercial and service laws is unprecedented. The quality of the judgments rendered speaks loud and clear about the legal acumen of Her Ladyship, from declaring the two-finger test carried out to ascertain the virginity of female victims of sexual abuse as unscientific and without medical basis, to holding poor cane growers as having prior statutory rights of recovering the price of sugarcane over the mighty banks. Over the last decade, she has been a beacon of hope in the development of jurisprudence across fields which have otherwise remained largely unexplored.

There is general consensus that a delay in deciding cases is the root cause of all problems within the justice system. All those practising law at the Lahore High Court would agree that getting an adjournment from Justice Malik’s court is very difficult, if not impossible, as she fully understands the plight of litigants stuck for years. An out-of-the-box strategy adopted by Her Ladyship is to dismiss a case for non-prosecution and not restore the same unless the counsel is ready to advance arguments on merits. This strategy has worked tremendously well and is now also being followed by some of the other judges.

Her Ladyship’s best trait is being bold, fearless and fair. I have witnessed firsthand that she never decides a case based on face value and treats all lawyers alike. Regardless of whether you are a seasoned practitioner or young counsel, if you can make a good case you will get relief. No one will get preferential treatment in her court based on one’s position or last name. A few years back, I had a case before Her Ladyship in which the opposing counsel was a senior office-bearer of a bar association. It was a busy day and the courtroom was filled up to the hilt. The officer-bearer, interjecting in the ‘normal cause list’, tried to have his case called out of turn. However, not only was the case called at its own turn but a befitting response was also meted out to the counsel. For many this may be a trivial incident, but for me, personally, Her Ladyship’s trait of deciding all cases without fear or favour is the most admirable. I admit that Justice Malik is a very strict judge and I have seen many a legs tremble on the roster (including mine), but I also have to admit that she does not discriminate.

The Judicial Commission is now all set to consider the nomination of Justice Ayesha Malik to the Supreme Court on the 9^th of September, 2021. Although this move has been welcomed by a large segment of the society, the bar councils seem to be opposing it because they believe that only the senior-most judge of a particular province must be elevated to the Supreme Court, irrespective of merit. Out of the 49 judges of the Lahore High Court, Justice Malik is at serial no. 4 in seniority. A big debate has since arisen between those favouring seniority over merit and vice versa.

My take on the debate is that it must always be about merit over any other consideration because seniority is not a principle, it is just a formula which may or may not be followed. The Constitution, as it stands, also places no such restriction on the high powered body known as the Judicial Commission (which consists of nine members, including five of the most senior judges of the Supreme Court). My argument to ignore seniority and concentrate on merit is very simple: if the senior-most has to be elevated, then what is the point of having a Judicial Commission? A deputy registrar can just do the math and issue a notification based on seniority. We trust  the Supreme Court as the court of last resort and we also trust Supreme Court judges with matters involving life and property every day, then why can’t we trust them to elevate the most competent judge from the High Court to the Supreme Court? It does not mean that those superseded are not competent. It’s more of a competition among the best of the best. Given such complicated elevations, defining an objective criteria becomes next to impossible. Therefore, someone has to be trusted to address the matter and in this case, the buck stops with the Judicial Commission to do the right thing. A famous remark by Justice Jackson of the US Supreme Court may be relevant here:

“We are not final because we are infallible. We are infallible because we are final.”

Additionally, the seniority formula provides no impetus for junior judges to work hard or even deliver any landmark judgments if they know from day-one of their elevation whether they will make it to the Supreme Court in future. Not having the seniority formula, therefore, creates healthy competition even amongst judges to go the extra mile in their work if they want further progression in their careers.

To date, the Supreme Court of Pakistan has not had any women serving as judges, but even without gender or affirmative action considerations, Justice Malik deserves to be elevated to the Supreme Court based on merit and a best-of-the-best policy. In a case reported as Government of Punjab versus Qanoot Fatime, 2018 PLC (CS) 22, coincidentally Justice Ayesha Malik herself, while presiding over a Division Bench of the Lahore High Court, held the following:

“The selected female corporals all satisfied the merit. The Respondents also fulfilled the criteria but were ousted simply because they are women. Reserved seats or quotas are positive actions required to achieve substantive equality. It is a measure taken for promoting equality and is the bedrock of international conventions providing for protection against discrimination on the basis of sex, race and disability. Hence the act of the Appellants of employing only 75 women when the Respondents being female candidates were eligible on merit is discriminatory and against the spirit of the Constitution.”

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.