August 1, 2004

A controversial retirement case of a Lahore High Court judge has caused a fair amount of fierce debate in the country

ON Jan 21, 2004, Justice Fakharun Nisa Khokhar granted relief to a divorcee, who is the mother of three minors, by ordering her former husband to pay a monthly allowance for her sustenance.

It had never happened in the history of Pakistan’s Muslim Family Laws before, that a husband was ordered by a court to provide maintenance allowance to his ex-wife and children. Justice Fakharun Nisa’s court decreed that a ‘mother was entitled to maintenance for breast-feeding, the suckling for two years even after the period of iddat ‘... (The Holy Quran: Surah 2, Al-Baqara, Verse 233).

Her decision went a step further in providing security to a woman. In the same ruling the honourable judge recorded that “Even equity and natural justice demand that the wife who is neglected throughout by her husband and divorced at his whims and is left alone at the mercy of cruel circumstances in a male dominated society without any source of income should be maintained by the divorcing husband who has acted without justification.” She also urged parliament to amend the Family Laws Ordinance, 1961.

It was going to be her last judgment. After serving as a judge of the Lahore High Court for a decade, Justice Fakharun Nisa retired last month in what could be called one of the most controversial retirement instances of our time. The controversy was not so much about her natural retirement age. It was about being superseded by a junior judge in chief justice’s appointment.

In the Supreme Court Bar Association versus Federation of Pakistan, (PLD 2002 Supreme Court 939), the Supreme Court of Pakistan held that the most senior judge in the High Court and the Supreme Court could legitimately expect to become the chief justice of a respective court. This principle, on the basis of seniority, was recognized as a constitutional convention by the apex court. Clearly, in Ms Khokhar’s case the Supreme Court’s rule has been ignored and stands in contravention to its ruling.

“This is the second time I’ve been overlooked. In 2002 as the senior most judge of the High Court, I was not appointed to the post of chief justice. It happened again this year. But I’m not surprised. The problem is that men can’t bear to see a woman more competent than them. The fact that I’m a woman is the only factor that goes against me. Am I any less competent than a man? If it is so, why was I allowed to take oath as a judge in 1994?” says Ms Khokhar.

Her retirement was debated in the National Assembly and Senate. Not expecting to become a part of a discussion in parliament, Ms Khokhar was surprised to find many MNAs and members of Senate protesting against the injustice done to her. “On March 29, 2004, a resolution was moved by one member of the treasury benches in the Punjab Provincial Assembly to consider my appointment as Chief Justice. For reasons known only to the government, the resolution was turned down by the speaker,” she says.

Before reaching the retirement age of 62 years, it was believed by many people in the legal and social quarters that Fakharun Nisa Khokhar would be appointed as the first female Chief Justice of a high court in Pakistan. That would have been history in the making. No woman has ever held the post of a chief justice in Pakistan. With President Pervez Musharraf, holding the supreme authority of appointment and working overtime to bring about ‘enlightened moderation’ in Islam, the chances of holding true to his claims of gender equality looked unusually bright.

When lights went out on that choice, there was talk of Ms Khokhar’s elevation to the Supreme Court. But neither of the two choices was exercised by the propounder of ‘enlightened and moderate Islam’. At present, not a single woman holds the position of a judge. Though several positions of judges were vacant in the Supreme Court, Ms Khokhar has been denied the right to fill one of them. Her qualifications as the longest serving judge with 200 landmark judgments to her credit has been overlooked and her constitutional right to be appointed on the basis of seniority violated.

In the present unconstitutional setting, a judge, junior to Ms Khokhar, is now the Chief Justice of the Lahore High Court. And the president’s intention of not letting her occupy one of the positions as a judge of the Supreme Court could not be more lucid.

Not the one to be concerned with an elevated designation, Justice Fakharun Nisa’s foremost concern is the closure of an avenue for a woman to become a judge. In the coming two decades no woman will be able to fulfil the seniority prerequisite for a judge’s appointment.

“It’s a long uphill task and I don’t see any woman in the near future becoming the Chief Justice of a High Court or a judge of the Supreme Court. Let me say this much that injustice has not been done to me, but to the history of Pakistan. How can women be encouraged to join the legal profession when they know they’ll be discriminated against at the time of superior appointments?” questions the retired judge.

Gender discrimination is just one of the reasons, certainly not the most decisive one, determining Justice Fakharun Nisa’s retirement. She was what the legal community calls, a ‘less pliable judge not acceptable to the establishment’. Following closely to non-pliability, which in legal terms is a distinction given to a person with an impeccable career, came her political association with the Benazir Bhutto government.

“I refuse to accept this charge. I had not been appointed because I was associated with a political party. I was appointed in 1994 with two other women, Nasira Javed and Talat. Professionally, I was doing pretty good at the time and from Lahore to Multan people knew me. My only reason for accepting the post was to encourage women in this profession,” she says.

Upon close inspection, it is evident that her superannuation and succession by a junior judge goes much deeper than the gender issue. Endorsing this view is Hamid Khan, a leading lawyer, member of the Pakistan Bar Council and former president of the Pakistan Supreme Court Bar Association.

“Fakahrun Nisa’s credentials as a judge are unquestionable. She had to struggle hard as the only female lawyer in a place like Multan in the mid-60s. It was difficult at the time because people were not used to seeing women in the realm of law. She was honest and always stood for what was right. When she was appointed judge in 1994, she brought with her the same qualities which earned her a lot of respect in the legal community. Those same qualities became her biggest detractors when General Musharraf overthrew the Nawaz Sharif government in 1999,” explains Mr Khan.

She believed that a judge was accountable to Allah only. The establishment had different views and could not take kindly to someone who endorsed the supremacy of judiciary and respected constitutional values.

“For the most dishonest reasons Fakharun Nisa was superseded, so was Justice Karamat Nazir Bhandari. I was told by somebody that the Punjab Governor, Khalid Maqbool was not comfortable with Bhandari, and Fakharun Nisa was not pliable. The best person to serve the Musharraf government and endorse its validity was Justice Iftikhar Hussain Chaudhry. Heading a division bench of the Lahore High Court, Justice Chaudhry declared in 2003 that General Musharraf could hold both offices of the President and Chief of the Army Staff at the same time under the Constitution. The military government knew that Fakharun Nisa would not have done that. So, I don’t think it has anything to do with gender bias,” declares Mr Khan.

Sitting in the drawing room of her cantonment residence, Fakharun Nisa looks content with her judicial career. Her expression turns soft when a Siamese cat plonks comfortably into her lap.

“Fakharun Nisa has retired, but her decisions will remain till eternity,” comments a retired judge. Her milestone judgments on khula, on child maintenance, on delegated authority in the nikahnama, on the period of iddat and many others have confirmed that Islam has no gender biases. The problem is Islam’s interpreters.

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