The law of the land does not envisage any bar to appoint women lawyers as judges of the superior Courts, and the only bottleneck is gender bias. It can be overcome by bringing about a constitutional amendment in Article 175-A of the Constitution to add a special quota for the appointment of female lawyers
There is a need to take a leaf out of Carter’s book
“Women hold up half the sky.”– Mao Zedong
Gender bias and misogynism are rooted deeply in the fabric and psyche of our male chauvinistic society. Despite making inroads in every institution in Pakistan, female members of society have to face these issues on a day-to-day basis. For the most part, they don’t get a level playing field to compete with their male peers.
When it comes to the superior judiciary, it is no different. The history of the superior judiciary is steeped in gender bias and discrimination.
The year 1994 witnessed unparalleled judicial appointments in the history of Pakistan: The late Benazir Bhutto elevated as many as 5 female lawyers to the High Courts of this country; Fakhar-un-Nisa Khokhar, Talat Yaqub and Nasira Iqbal as Lahore High Court judges, Khalida Rashid Khan as Peshawar High Court Judge and Majida Rizvi as Sindh High Court Judge.
72 years have gone by since our independence, and still, not a single woman could make it to the Supreme Court. It begs the question, why? Ms Justice (retd) Fakhar-un-Nisa Khokhar in her erudite speech in a convention entitled Judiciary and Gender Bias expressed her dismay in these words “…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.”
Ms Justice (retd) Nasira Javed Iqbal made a speech in the same convention. She said: “Five female judges were appointed in the High Courts in 1994. Two of them had a legitimate expectancy to become Chief Justices of the High Courts of Punjab and NWFP, respectively. However, both of them were superseded and were allowed to retire without being elevated to the Supreme Court of Pakistan”.
Tragically, Ms Justice (retd) Fakhar-un-Nisa Khokhar was not appointed as the chief justice of the Lahore High Court, in brazen contravention of the principle of legitimate expectation laid down in PLD 2002 SC 939 and Article 25(2) of the Constitution. Chaudhary Iftikhar, her junior, was appointed as the Chief justice of the Lahore High Court. In a bid to get her out of the way, she was made a judge of the Environmental Tribunal against her will, thereby backing her into a corner. The Supreme Court accepted her petition to challenging it and allowed her to work as a puisne judge of the Lahore High Court. To her consternation, little to no work was assigned to her by the then Chief Justice, thus making her sit through the Court. To top it all, the Chief Justice was not on talking terms with her, rendering her an outcast in the Lahore High Court. Such was the gender bias! She sets out the details of these events in her autobiography, Waqalat, Adalat aur Ayewan Tak (From Lawyering to Court to Parliament”, which was published last year.
As a lawyer, Mr Justice Qazi Faez Isa wrote an article titled “Why can’t a woman be chief justice?” in a newspaper in favour of Ms Justice (retd) Fakhar-un-Nisa Khokhar, when she laid off her robes as a judge of the Lahore High Court in 2004.
Justice Khalida Rashid was all set to become the Chief Justice of the Peshawar High Court in 2011. However, she was offered a Hobson’s choice: to be appointed the president of the International Criminal Tribunal on Rwanda or to quit. She chose the first option.
Ashraf Jehan Jamali, the wife of the former Chief Justice of Pakistan Anwar Zaheer Jamali, became the first female judge of the Federal Shariat Court in 2013/2014. Ms Justice Syeda Tahira Safdar became the first female chief justice of the Baluchistan High Court in 2018, marking the enormous struggle waged by the female lawyers.
Female judges faced institutionalised bias as well. A case in point is Ms Justice Erum Sajjad Gull of Lahore High Court. She was not confirmed, thereby getting a raw deal. If handing down reported judgments were the criteria, she had had 34 of them to her credit. She challenged her non-confirmation by instituting a writ petition under Article 184(3) of the Constitution through Ms Justice (retd) Nasira Iqbal before the Supreme Court. Regrettable as it was, her petition was dismissed by a single-line order as being not maintainable by a three-member bench headed by the former Chief Justice of Pakistan Mian Saqib Nisar. Curiously enough, before being elevated to the High Court, she wrote an article entitled The Legal Bias Against Women in a Pakistani newspaper on 7 August 2010. The conclusion she drew therein is worth quoting:
“Pakistan’s development will remain a mirage unless its women, who make up more than fifty per cent of the country’s population, are truly empowered. The effort should be twofold: while women are given greater representation at all levels of government, effective efforts should be made to promote equal opportunity for employment and discourage discrimination at the workplace.”
At the time of writing, little did she know that she too would fall victim to gender discrimination.
Let us now briefly have an overview of the judiciary across the world in terms of female judges. England, our colonial master, has Justice Lady Hale as the President of its Supreme Court. Needless to mention, it was Dame Elizabeth Kathleen Lane, who made the history by becoming the first-ever woman to sit in the UK High Court in 1965.
It was President Jimmy Carter, who decided to diversify the US Judiciary by the inclusion of women as well as minority members of the society as judges. To this end, he issued an executive order in 1978. He ensured that the rigorous process for the selection of women and minorities as judges be softened. Since then, there was no looking back. It bears mentioning that before he took office, there was only one per cent of women in the judiciary and when he left the office as the President, the percentage was enhanced to a remarkable 15 per cent. Ruth Bader Ginsburg, later a Supreme Court justice, was initially elevated to the judiciary by Carter as the judge of the US Court of Appeals for the District of Columbia Circuit in 1980.
Justice Sandra Day O’Connor shattered the glass ceiling in 1981 by becoming the first female judge in the US Supreme Court. Now three female judges; Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan are serving in the US Supreme Court.
Justice (R) M Fathima Beevi went down in the Indian judicial history as the first female judge and the first Muslim woman to be elevated to the Supreme Court in 1989. Ever since there have been seven female judges on the Indian Supreme Court, of three still serve.
Pakistan is a signatory to the CEDAW (the Convention on the Elimination of all Forms of Discrimination Against Women). Pursuant to it, an obligation is cast upon Pakistan to appoint at least 33% of women judges in the higher judiciary.
25 years after the first appointment of female judges by Benazir, the number of judges has not increased in the superior judiciary. At the time of writing, there are only six female judges in the various High Courts.
Though the law of the land does not envisage any bar to appoint women lawyers as judges of the superior Courts, the only bottleneck that hinders the way is gender bias. It can be overcome by bringing about a constitutional amendment in Article 175-A of the Constitution to add a special quota for the appointment of female lawyers and by relaxing the appointment procedure, taking a leaf out of President Jimmy Carter’s book.