Pakistan Reader# 203, 14 September 2021
The rejection of Justice Ayesha’s elevation to the Supreme Court points towards a larger problem faced by women within the judiciaryApoorva Sudhakar
On 13 September, the Chief Justice of Pakistan (CJP) criticised the legal fraternity which protested against the elevation of judges to the Supreme Court, from the Lahore High Court. Terming the move protests “totally uncalled for,” Justice Gulzar Ahmed observed that there had not been similar protests previously when 41 judges had been elevated to SC bypassing senior judges of the respective high courts. He also maintained that bar councils and associations had not responded positively to the invitation to discuss the elevation of judges and therefore, questioned their unilateral decision to hold protests on 9 September.
Protests and lack of consensus on the elevation of Justice Ayesha
On 9 September, lawyers boycotted the courts and protested against Justice Ayesha A Malik’s elevation to the SC from the LHC. The Lahore High Court Bar Association President (LHCBA) maintained that the Judicial Commission of Pakistan (JCP) should follow the seniority while elevating judges. The LHCBA president, while conveying that women judges have been denied the opportunity in the past, said that Justice Ayesha’s nomination to the elevation was contested only because of the principle of seniority. On the same day, the LHCBA general house passed a resolution against the elevation of “out-of-turn” judges till date.
Simultaneously, on the same day, the JCP had to reject the elevation of Justice Ayesha due to lack of consensus after four of the eight JCP members opposed the move. Meanwhile, a Pakistan Bar Council (PBC) representative said the body opined that more women judges should be appointed in the lower judiciary and the five high courts. The JCP also faced criticism of favouritism while elevating judges.
Justice Ayesha and women in judiciary
In August, Justice Ayesha was expected to become the first woman to be nominated to be elevated to the SC. Apart from the rejection of her elevation, the criticism against her nomination paints a graver picture of women in judiciary.
Not long ago, in November 2020, an Additional District and Sessions Judge Dr Sajida Ahmed Chaudhry had written to the CJP and other ministerial officers outlining the abuse, harassment, and discrimination faced within the judicial system. She had written that respect, prestige and sacredness were of no worth in the legal profession. She said that had she known that a sitting woman judge would be at the receiving end of abuses by lawyers, she would not have chosen the career. She further highlighted other issues within courtrooms and complexes including the dilapidated conditions; however, Dawn explained that problems of such kind would further deter women from pursuing the legal profession, reasoning that the possible aversion could be fueled by workplace harassment issues and skewed male-female ratio in the field.
Independent-journalist Zofeen Ibrahim outlines that in the lower and high courts, there are only 519 women judges of the total 3,005 judges at the level. There are only five women judges at the provincial high courts - two each in Lahore and Sindh, and one in Peshawar. This accounts for just 4.38 per cent of judges.
In the past, five women lawyers were elevated to the high courts by Benazir Bhutto, as judges; of this, two judges retired before they were appointed to the SC, despite meeting the requirements. Almost three decades, the scenario has not changed much as Pakistan does not have a single woman judge, being the only country in South Asia to not have one.
A legal adviser for the International Commission of Jurists says there are several reasons for the current scenario which can be attributed to sexism wherein women are seen as caring by nature and seen as unfit to deal with tough legal issues; because of this, women are often assigned to courts dealing with family laws. The legal profession is, by and large, seen as a male profession. Further, there is a lack of acknowledgement of underrepresentation of women in the judiciary. In its National Judicial Policy, 2009, the SC did not mention the above as one of its areas of concern. Moreover, several families discourage women from undertaking the profession due to the attitude of the general public towards women lawyers; here there is a tendency of any client to prefer a male professional over a female professional due to personal biases, which include perceiving women to be incompetent.
Therefore, the debate over Justice Ayesha being nominated and not being elevated to the SC is only a fraction of the larger problem affecting Pakistan’s judiciary.
Sohail Khan, “While bar consulted on judges’ appointment: What’s real motive of lawyers’ protest on Sept 9, asks CJP,” The News International, 14 September 2021
Nasir Iqbal, “CJP rejects objections to judges’ elevation,” Dawn, 14 September 2021
“Lawyers boycott courts over judge’s ‘elevation’ to SC,” Dawn, 14 September 2021
Nasir Iqbal, “No consensus in JCP on elevation of junior judge to SC,” Dawn, 14 September 2021
Zofeen T Ibrahim, “Justice by women,” Dawn, 15 August 2021
Nasir Iqbal, “Judge invites CJP’s attention to harassment by lawyers,” Dawn, 18 November 2020
“A law unto themselves,” Dawn, 19 November 2020
Zaeem Mumtaz Bhatti, “Women underrepresented in superior judiciary? ,” Daily Times, 22 July 2019
Reema Omer, “Gender imbalance in law,” Dawn, 15 March 2016