Women’s quotas in the SC

Published June 21, 2016
The writer is a legal adviser for the International Commission of Jurists.
The writer is a legal adviser for the International Commission of Jurists.

IN May 2016, Senator Babar Awan (PPP) introduced a bill in the Senate mandating a 33pc quota of women judges in the Supreme Court through an amendment of the Supreme Court (number of judges) Act, 1997. The bill is currently pending before the Senate Standing Committee on Law and Justice.

Earlier this year, MNA Saman Jafri (MQM) introduced a similar bill in the National Assembly, mandating a 25pc quota for women judges in the SC. The National Assembly Standing Committee on Law and Justice, however, recommended that the bill be rejected, including on the grounds that it would lead to a “decline in quality and expertise” in the judicial profession.

The government has so far opposed both bills on the basis of highly problematic reasoning. Law Minister Zahid Hamid, for example, has argued that “lack of interest” on the part of women lawyers and judges has led to their absence from the SC and has rejected any institutional hurdles.

The government’s casual dismissal of the glaring gender disparity in the judiciary is a disappointing abdication of its duty to redress that imbalance and an indictment of its commitment towards achieving full and equal participation of women in public life. In this context, the recognition of the absence of women judges in the SC by at least some opposition parliamentarians is a welcome step.

However, the effectiveness of the proposed remedy in the form of quotas for women judges in the SC requires further discussion.

The statements of objectives of the bills rightly note that Pakistan has never had a woman serve as a judge of the SC. However, this is just the tip of the malaise of gender imbalance in the legal profession that runs much deeper.


Even if quotas for women are introduced at the Supreme Court level, they will not markedly improve matters.


Only seven out of Pakistan’s 112 high court judges (6pc) are women. Even in the district judiciary, where women are appointed judges in greater numbers, the representation of women judges sharply decreases with seniority (and hence authority). In Punjab, for example, while 20pc civil judges are women, the figure drops to 5pc among senior civil judges. Similarly, while 7pc of additional district and sessions judges are women, the number of district and sessions judges, who have executive and judicial control over their districts, is only 2pc.

Therefore, even if quotas for women are introduced at the SC level, they will not markedly improve the overall underrepresentation of the women in the judiciary, which is prevalent in all tiers of the institution.

Another shortcoming of the bills is their failure to tackle the underlying causes of the underrepresentation of women in the SC — and generally in the judiciary.

One key issue that needs to be highlighted in Pakistan’s context is the lack of transparency in the judicial appointments process for judges of the high courts and the SC.

According to Article 175-A of the Constitution, a nine-member judicial commission, comprising largely of senior judges, is responsible for nominating judges for the superior judiciary and recommending them to a parliamentary committee for approval. Currently, all nine members of the judicial commission are men.

The criteria on which the judicial commission shortlists candidates are not transparent and the commission’s proceedings and deliberations are not made public. In the larger context of discriminatory practices and attitudes in the legal profession, such secrecy often works to the detriment of women and leads to the perception of bias in the appointments process. It is therefore critical that transparent and holistic selection criteria are elaborated in relevant legislation and in rules for judicial appointments. Such criteria, for example, should expressly define merit so as to include the goals of judicial diversity and gender equality.

Additionally, the underrepresentation of women in the judiciary cannot be separated from the

near-absence of senior women lawyers in the country. Since judicial appointments to the SC can only be made from high court judges or lawyers with at least 15 years of litigation experience, even if quotas are introduced at the SC level, they will not be fully effective unless the pool of women lawyers and judges to be considered for judicial posts is expanded.

Like the judiciary, gender imbalance is also stark in the legal profession, especially at senior levels. Since its inception in 1973, the 25-member Pakistan Bar Council, the highest regulatory body for lawyers in the country, has never had a woman member. Similarly, the nearly 3,000-member Supreme Court Bar Association of Pakistan has less than 5pc women members.

A long overdue measure, therefore, is amending the Legal Practitioners and Bar Councils Act, 1973, so as to give real effect to the duty of bar councils to eliminate discrimination and promote equality in the legal profession.

Among other things, bar councils can play a key role in increasing the capacity and infrastructure of associations of women judges and lawyers — which exist but are nearly defunct. In countries where such associations are fully functional, they fulfil a solidarity and support role for individual women judges and lawyers; are an important source of training and education; and also enable women lawyers and judges to more effectively articulate their everyday experiences of working in the legal profession, including the many forms of harassment and discrimination faced by women in the profession.

After decades of neglect, it is encouraging to see the critical question of the gender imbalance in the judiciary receive some political attention. However, sustainable and effective efforts to advance women’s representation within the judiciary and ultimately achieve gender parity in the legal profession will require express and lasting support and commitment from a range of actors including members of the government and parliament; the chief justice and other senior members of the judiciary; as well as professional organisations of lawyers.

It is key that this important debate does not start and — should the bills fail — end only at the institution of quotas for women in the SC.

The writer is a legal adviser for the International Commission of Jurists.

reema.omer@icj.org

Twitter: reema_omer

Published in Dawn, June 21th, 2016

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