Pakistan Reader# 270, 10 January 2022
Her appointment is a first big step; but to make it meaningful, there has to be constitutional provisions and practices to have women judges at the higher level, and also a conducive legal environment for them to practice.D. Suba Chandran
On 6 January 2022, the Judicial Commission of Pakistan approved the nomination of Justice Ayesha Malik to the Supreme Court. She would be the first woman judge to be approved for the highest court in Pakistan. She would remain in the Supreme Court until March 2031; a report in Dawn mentioned that she would even have a chance to become the first woman chief justice of Pakistan.
It is a moment to celebrate, wrote Dawn subsequently, in its editorial on 8 January. Indeed. As Pakistan celebrates 75 years of its independence in 2022, it was a glass ceiling until now for the women judges. And it is broken now. Justice (Retd) Fakhar-un-Nisa Khokhar, should be smiling; she could have become the first woman judge to be appointed to the Supreme Court two decades ago, but could not. She was quoted to have stated: “…no women in the Supreme Court, and those who were to be elevated to the Supreme court, were sacrificed at the altar of gender bias.” Another retired woman judge, Justice Nasira Iqbal was quoted to have stated: “Five female judges were appointed to the high court in 1994; two of them had legitimate expectancy to become the chief justice[s] of the high courts of Punjab and KP [Khyber Pakhtunkhwa] respectively; however, both of them were superseded and were allowed to retire without being elevated to the Supreme Court of Pakistan.” In this background, Justice Ayesha’s elevation is a moment to celebrate.
Justice Ayesha Malik’s elevation from the Lahore High Court to the Supreme Court of Pakistan is expected to add two specific issues. Dawn’s editorial (“Debating Seniority,” Dawn, 8 January 2022) referred to what she brings in – “a woman judge who would be able to empathise more deeply than her male colleagues with the hardships and trauma faced by women seeking justice” and addressing “gender equality in the highest echelons of the judiciary.”
Both are much needed. During recent years, one could see the rise of a women movement creating ripples in the patriarchal society of Pakistan. The rise of Aurat March in Pakistan and the popularity of the “Mera Jism, Meri Marzi” (My body, my choice) slogan would highlight the progress of a critical gender movement in Pakistan. Further progress to this movement would not be easy and has serious obstacles. A case in point would be the response, especially the institutional statements, after the physical assault of a mother by two men, in front of her children in September 2020. While a section of the nation got extremely angry at the incident (the Lahore-Sialkot highway rape case), another section, including the police chief of Lahore, decided to blame the victim. The police officer was quoted to have stated: “First, I am surprised that she, a mother of three children, chose to go without a driver. You left Defence, you (should) take the straight GT Road where there is population and go home.”
In this context, the elevation of a woman judge to the Supreme Court would play an important role – to bring the much-needed sanity and empathy in the arguments over gender violence. Justice Ayesha Malik is also the right person for her position while delivering her judgment on gender violence. Last year, in January 2021, she delivered her judgment on virginity tests, especially on the two-finger test. Judge Malik made crucial observations on the validity and usefulness of the test, the illegality of the same vis-à-vis the constitutional provisions, and, more importantly, on the dignity of the victim. Dawn, in its report dated 4 January 2021, quoted her judgement saying the virginity test offending “the dignity of the female victim,” and also “discriminatory against the female victim as they are carried out on the basis of their gender [and] therefore offend Article 25 of the Constitution.” She also instructed the provincial governments to “ensure that virginity tests are not carried out in medico-legal examination of the victims of rape and sexual abuse,” and devise “appropriate medico-legal protocol and guidelines and standard operating procedures” to “recognise and manage sensitively the care of victims of sexual violence.” The provincial government in Punjab subsequently abolished the test.
The other issue is related to gender parity in the legal system in Pakistan. Ayesha Siddique Khan, a practising lawyer in Islamabad, wrote (The Express Tribune, 13 September 2020) in September 2020: “As a lawyer, myself, working in a patriarchal and male-dominated profession, I cannot stress more on the need for making the legal profession gender-inclusive. Till today there has been no female Supreme Court judge or Attorney General of Pakistan. As per statistics by the Ministry of Law, only 6 out of 113 judges of high courts across the country are women; and out of 198 members of 7 bar councils across the country, only 6 happen to be women, reflecting the gender disparity in the litigation and judiciary. There is dire need to increase representation of women in law.” Another woman lawyer, Zaeem Mumtaz Bhatti, then practicing in Lahore, wrote (Daily Times, 27 July 2019) in 2019: “Despite making inroads in every institution in Pakistan, female members of our society still have to face these issues on a day-to-day basis. For the most part, they don’t get a levelled playing field to compete with their male peers. When it comes to the superior judiciary, it is no different.”
Zaeem Mumtaz Bhatti also wrote: “The history of the superior judiciary is steeped in gender bias and discrimination.” Now a first step is taken to address that discrimination, by making Justice Ayesha Malik the first woman judge to be appointed for the Supreme Court, there need to be further measures.
Zia Ullah Rajah, another lawyer wrote in April 2018 (The Express Tribune, 10 April 2018) on steps that could be taken to eradicate gender imbalance in Pakistan’s superior judiciary: “Article 175A could be revised to ensure due representation of women — both in the Judicial Commission of Pakistan and in the Parliamentary Committee. A specific quota for women in the superior judiciary may also be prescribed within the mandate of Article 25 of the Constitution.” Besides, he also wrote: “Women lawyers should be provided a conducive environment so that they may grow as professional lawyers and then be considered for judicial appointments.”
While the first one refers to the constitutional amendments and practices, the second one refers to the legal environment in Pakistan. Both need to be addressed. Though Justice Ayesha Malik has now been elevated to become the first judge in the Supreme Court, it was not an easy walk for her. There was opposition within the Judicial Commission of Pakistan that appointed her as the Supreme Court judge. The decision was made with a 5-4 majority in a nine-member commission. The primary opposition stemmed from her seniority at the Lahore High Court; she is not the first in terms of seniority. There has been a threat from Pakistan Bar Council to boycott the courts if she was elevated. In this context, the above recommendation by Zia Ullah Ranjah makes sense. Pakistan should work towards having a specific quota for women in the superior judiciary and in the Judicial Commission of Pakistan.
Equally important is providing a conducive environment for women lawyers and judges. While the first one has to come from the Parliament through a constitutional amendment, the second one has to come from the legal community through a gender mandate. Both are crucial; the former cannot succeed without the latter.
Back to Justice Ayesha Malik. Congratulations, my lord.