THEY say justice must not only be done but also must be seen to be done. But now more than ever, many say it would be good to see it done by a woman.
With 49 per cent of Pakistan’s population comprising women, their representation in various walks of life, including the judiciary, is not reflective of their numbers. Of the 3,005 Pakistani judges in the lower and higher courts, only 519 or 17pc are women.
Why don’t we see more women in the high courts despite there being an increase in the number of women seeking justice with each passing year? Of the 114 judges in Sindh (33), Lahore (50), Peshawar (15), Balochistan (10) and Islamabad (six), only five are women (two each in the high courts of Sindh and Lahore, and one in Peshawar). This comes to 4.38pc female judges, less than the 5.3pc reported by the HRCP in 2016.
In recent years, more and more questions have been asked about judges’ appointments but never about why there is just a token number of women judges in the high courts and none in the Supreme Court. For nearly 65 years since Pakistan’s Supreme Court was established, justice was meted out at the highest court by men only and no one really noticed.
Women are rarely elevated to the higher courts.
Why was this fact overlooked? The simplest response would be that most such appointments are made from the high courts on the basis of lawyers’/judges’ seniority and there are simply not enough (and not senior enough) women in the high courts to choose from.
But when there was one opportunity, some 19 years ago, that too was allowed to slip. Justice Fakhar-un-Nissa Khokar, despite becoming the Lahore High Court’s senior most judge was never elevated to become chief justice of the court.
And when the numbers game excuse does not work, there is the impassioned plea to hold merit above all. But this week as we celebrate the 75th year of Pakistan’s independence, we also celebrate the nomination of 55-year-old Justice Ayesha A. Malik of the Lahore High Court by the Judicial Commission of Pakistan to become the first female judge of the Supreme Court. We celebrate victory and merit.
While Justice Malik will have bypassed three senior male judges of the Lahore High Court to get to the Supreme Court, no one can doubt her credibility, integrity and competency. In any case the Constitution allows a Pakistani “with five years’ experience as a judge of high court or 15 years’ experience as advocate of high court” to be appointed as a Supreme Court judge.
A gender-inclusive bench will go a long way in ensuring a balanced and bias-free, empathetic judiciary. “Having them[women] on the benches can go a long way towards making courts accessible and less intimidatory for women litigants and victims,” said Dr Osama Siddique, executive director of the Law and Policy Research Network. There is abundant global research to show how diversity on the bench makes them “more equal opportunity and protective towards the vulnerable” he pointed out.
Justice Malik may have broken the judicial glass ceiling but there are scores of women lawyers who continue to struggle in junior positions for decades in the male-dominated legal profession where even litigants prefer male lawyers, especially in criminal cases. Young women are sent to the courts routinely to obtain adjournments because male judges maybe more pliant towards them while their male colleagues are sent to present strong arguments and are taken more seriously.
Sadly, while there are scores of women judges in sessions and district courts, they are rarely elevated to the high courts. Many suffer in silence facing aggression, misogyny and sexism from lawyers. “There is a stark difference between how lawyers and their clients treat female judges compared to their attitude towards male judges,” said lawyer Nighat Dad.
The same toxic culture is faced daily by female lawyers at the workplace — in the courts and at firms. They start their legal career with dreams of doing litigation work but end up opting for chamber work, said a young Karachi-based lawyer. But even at the firm there is little respite and even when they complain nothing is done to fix it.
Siddique believed there is comfort in numbers and more female judges in the appellate courts can help introduce reforms to safeguard female lawyers and district court judges and help change the judicial culture. Lawyer Sara Malkani recommends setting up functioning harassment committees by bar councils and at law firms.
A structural revision in appointments to the high courts and the lower judiciary is imperative to imbue fairness and not to necessarily maintain gender balance. US President Jimmy Carter appointed 41 female judges. He said he “was determined to see that women and minorities, whose destinies have so often depended upon the kind of justice that our courts can provide, should be included in those judgeships.” Why do we lack this determination when appointing women to the bench?
The writer is a Karachi-based independent journalist.
Published in Dawn, August 15th, 2021