Seniority is a topic of discussion  : This is a time to rejoice. The nomination of Justice Ayesha A. Malik to the Supreme Court is the fir...

 Seniority is a topic of discussion :

This is a time to rejoice. The nomination of Justice Ayesha A. Malik to the Supreme Court is the first time a woman judge has been authorised for elevation to the nation's top court.

The landmark finding that branded the two-finger 'virginity' test as "illegal and against the Constitution" — an indictment of a system that subjected rape victims to further misery and humiliation — is among the judgments she has authored as a judge of the Lahore High Court. Justice Malik's legal expertise in other areas has also been lauded. But for many activists, what matters most is the promise she represents as a female judge who would be able to empathise more fully with the challenges and anguish encountered by women seeking justice than her male colleagues.

Second, in a country that ranked third from the bottom in terms of male-female parity last year, the Judicial Commission of Pakistan's decision in her favour can be considered as a step toward gender equality in the judiciary's top echelons. This basic right has been long overdue, especially as Pakistan approaches its 75th anniversary of independence.

But it hasn't all gone smoothly. And the 'barrier' - the idea of seniority — deserves careful consideration by all parties involved. The JCP rejected Justice Malik's nomination in September due to a lack of consensus. This year, too, the margin of victory was razor-thin: 5-4 in her favour. The opposition to her proposed appointment is not without merit, and some attorneys, including bar councils, have called for protests and boycotts.

Justice Malik is the fourth most senior judge on the Lahore High Court, and her promotion is being viewed as unusual. Last year, when Justice Muhammad Ali Mazhar, a very junior judge on the Sindh High Court, was elevated to the Supreme Court after the JCP voted 5-4 in his favour, a similar debate erupted. Several more instances have occurred in which the seniority norm has been disregarded.

Justice Faez Isa was one of the justices who opposed both Justice Malik and Justice Mazhar's nominations. "Once the nomination and selection criteria are set, it would help dispel doubts that arbitrariness in the selection process holds influence," Justice Isa said in a recent letter to Pakistan's top justice. What is essentially Justice Isa's appeal for transparency in judicial selections has a lot of logic.

But that task, as previously suggested by senior lawyers, cannot be achieved without the input of those representing the legal system, parliament and civil society as well as others. It is only by establishing in clear terms what qualifies a judge for a higher position, and how one judge is more qualified than the other, that controversies will disappear and nominations such as Justice Malik’s can be celebrated without reservations.