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Photo Source: Dawn

Pakistan Reader# 289, 4 February 2022

Justice Ayesha Malik: Against all odds



With the inception of the first female judge in the Supreme Court, we can be hopeful that she will not be the last

Sneha M

It was a historic moment for Pakistan. On 24 January, Ayesha Malik was inducted as the first female Supreme Court judge. From the day of nomination to taking oath, her appointment has been widely debated on several issues; be it seniority, merit or gender. It is no less than foolishness to assume that solutions to all obstacles facing female lawyers would fade away by appointing Justice Malik. However, all hope is not lost.

She needs to be celebrated not only because she belongs to the other side of the spectrum, but also for her competent, intelligent, and hard-working personality. The elevation of Justice Ayesha Malik has been applauded around the world for being a progressive step in Pakistan's male-dominated highest court. While she is being celebrated, her elevation also had to face certain issues.

Appointing Justice Ayesha Malik: From controversies to clarity
For the past four months, Justice Malik's appointment has been plagued by controversies, with bar councils and organizations objecting to her appointment. In 2021, the Judicial Commission of Pakistan had rejected her appointment due to a "lack of consensus" among its members. In 2022, the margin of victory was “razor-thin”; it was a 5-4 in her advantage. The opposition and some lawyers, including bar councils, had even called for protests and boycotts.

A primary reason against her appointment was over the seniority norms. Justice Malik was the fourth-most senior judge on the bench, and her appointment as Chief Justice was perceived as an unusual and “out-of-turn” promotion, superseding four senior judges. However, in a similar incident, Justice Mohammad Ali Mazhar in July 2021, who was fifth in the seniority list of Sindh High Court was also promoted to Supreme Court.

A larger issue is gender bias in judicial appointments. For instance, the entire country agreed that Justice Fakhar-un-Nisa Khokar was the senior judge on the Lahore High Court when CJ Falak retired in 2001. Rather than elevating her to high courts, she was given an option to either resign or be chosen as the Head of the Environmental Tribunal; she chose the latter. A clear case of politicization of the issue.

Fortunately, better sense prevailed. Justice Malik has a remarkable reputation. She was educated at Harvard Law School and has been involved with top chambers in Pakistan. Apart from that, she has constantly advocated for women's rights and the rights of female judges in lesser courts. It is pertinent to note that Justice Malik's landmark decision in the Lahore High Court on the "two-finger test" was declared scientifically invalid and emphasized that it "offends the dignity of the female victim." Altogether, her legal credentials are unquestionable and among the finest in Pakistan. Hence the clarity behind her nomination must be celebrated without any resentment. 

What it means for Pakistan’s judiciary?
On 7 January 2022, the Human Rights Commission of Pakistan (HRCP) reported that women represent only 17 per cent of judges altogether and only 4.4 per cent of judges in top courts. Moreover, until recently, Pakistan had been the only South Asian country without a female Supreme court justice. Indeed, it is a significant and progressive step for Pakistan mainly for two reasons. 

First, her elevation means more faith in judiciary for women. The impact of a more gender-diverse judiciary on people's access to justice and the integrity of justice will be a far-reaching phenomenon. A more significant share of women on the bench, according to the evidence, would make the courts more approachable to petitioners and victims from disadvantaged groups, hence enhancing faith and overall strengthening of the judiciary itself. 

Second, it establishes a step closer to gender equality. As mentioned, a single yet critical appointment might not turn the table. However, the Judicial Commission of Pakistan's vote in her support can be considered a step towards gender equality in the upper ranks of the judiciary in a country that stood third from the bottom in terms of male-female parity last year. 

What does it mean for gender equality?
First, the uniqueness in the diversity of opinions. Women's representation in the legal system is valued not only for presenting equality but also because women contribute their perceptions and experiences of being a woman to the courts, giving a layer of gendered perspective. Its undeniably right to say that some laws may affect men and women differently. Hence, having a fair share of women on board can broaden the discourse and encourage women-centric decisions. For example, in circumstances of sexual abuse and harassment, therefore, a gendered perspective can be critical.

Second, increased opportunities and hope in the system. Fortunately, Justice Malik's appointment will pave the way for numerous women to advance to prominent positions in the judiciary. With the increased opportunities and hope, Pakistan might witness a change in its number of female judges that has largely remained static in recent years. Khadija Siddiqi, a lawyer and a women’s rights activist expressed that Justice Ayesha “has broken all barriers in the judicial system and it will also allow more women in the system to move forward.”

In conclusion, resolving Pakistan's gender inequality in the judiciary requires a pro-active and utilitarian approach. In order to do so, grassroots investment in human resource development in the legal profession through education, training, and advanced professional opportunities must be made available, accessible, and, more importantly, accepted in society. 

References
Haseeb Bhatti, “Justice Ayesha Malik takes oath as first female judge of Supreme Court,” Dawn, 24 January 2022
History made: Lawmakers, journalists rejoice as Justice Ayesha Malik becomes first female SC judge,” Dawn, 24 January 2022
Justice Ayesha Malik notifies as first female judge of Supreme Court,” The Express Tribune, 21 January 2022
Zubeida Mustafa, “Women’s view,” Dawn, 14 January 2022
Debating Seniority,” Dawn, 8 January 2022
HRCP welcomes appointment of Justice Ayesha Malik to Supreme Court,” Human Rights Commission of Pakistan, 7 January 2022
Ayesha Siddique Khan, “Feminization of law and judiciary in Pakistan,” The Express Tribune, 13 September 2020

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