“Ladyships” in Superior Judiciary

Why are women not better represented in the judiciary?

A few days ago, Pakistan Bar Council’s (PBC) human rights committee opposed the scheme of fixing a quota of women judges in the Supreme Court of Pakistan. Quite sensibly PBC suggested introducing such quota in High Courts and the sub-ordinate judiciary. The committee assessed the bill introduced by Senator, Babar Awan in May 2016, which suggested a 33pc quota for women judges in the Supreme Court through a modification in the Supreme Court (number of judges) Act 1997. The fate of the bill is in a state of limbo as it is currently pending before the Senate’s Standing Committee on Law and Justice. Federal government has not shown any inclination to back this bill in any form or substance. Earlier this year, a female lawmaker of MQM initiated a bill of similar nature in the National Assembly; however, the National Assembly Standing Committee on Law and Justice suggested rejection of the bill on the reasoning that it would lead to “decline in quality and proficiency” in judicial profession.

One may disagree with some of the contents of the aforesaid bills but it can hardly be denied that the essence and purpose behind the bills fittingly reflect the need to tackle the widening gender imbalance in our legal system.  In Pakistan’s legal system, not a single judge in the apex Court is female; such conspicuous absence not only   speaks gender disparity but is also against the democratic credentials of the country. The state of affairs in High Courts and in subordinate judiciary also presents a dismal scenario as there are total of 112 judges in all five High Courts of Pakistan; only seven of them are women.  In the most populous Punjab province, 2pc of district and sessions judges, 7pc of additional district and session judges, 5pc of senior civil judges, 20pc of civil judges are women. These statistics reveal an inverse trend, as the judicial ladder goes higher, the percentage of women judges decreases i.e. the more the authority the less is representation.

A comparison of judicial diversity in Pakistan with other countries in South Asia shows that Pakistan is clearly far behind by a large margin. For instance, in Sri Lankan Supreme Court – out of 11 judges, four are women (36%); in the Court of Appeal – out of 12 judges two are women (17%) and from a total of 250 Magistrates, District Judges and Additional District Judges, there are 57 women justices (23%).In addition to that, Srilanka also holds the honour of appointing first female Chief Justice of Supreme Court in 2011. Our neighbouring country India is also on the right trajectory and far ahead of us, till date six women have sat on the bench of the Indian Supreme Court. In Hindu dominant India, a woman named Fatima BB (a Muslim from Kerala), became a judge of Supreme Court of India in 1989. Bangladesh enjoys the honour of having six female judges in the Supreme Court of Bangladesh.

The Constitution of Islamic Republic of Pakistan provides an arrangement empowering women through fundamental right enshrined in Article 25. The said Article guarantees equality of all citizens regardless of skin, colour, caste, gender, creed, and breed. Article 25, in order to protect interests of women encompasses the idea of positive discrimination i.e. it provides an exception and allows discrimination subject to reasonable classification and in part it allows discrimination through enactment of any special provision for the protection of women and children. The word “protection” as used in the said Article is implicitly equated with “representation” because women participation in any field like political, legal, economic or social empowers them, which ultimately results in protection against ill-treatment and exploitation. Nominal representation of women in lawyers community in general and judiciary in particular, amounts to patent violation of Article 25. It illustrates that the state has failed to provide level playing field and fair opportunity to a segment of society which represents 50 pc of the population.

Pakistan does have domestic legal framework prohibiting discrimination against women and is also a signatory to a number of declarations, covenants, conventions and treaties proscribing discrimination on the basis of gender. The United Nations Convention on Human Rights (UNCHR) guarantees equality regardless of colour, gender, caste etc, to which Pakistan is a signatory but only on papers. Pakistan also falls short of fulfilling the commitments it made at the UN Beijing Conference in 1995 to ascertain gender balance in the judiciary. Pakistan has also ratified the much celebrated Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The Asian Development Bank has allocated more than $ 350 million for structural reforms in the judiciary through ‘access to justice programme’ and has seriously insisted on appointment of women judges. However, all the above-mentioned laws and programmes only exist in theory and their practical manifestation is still far from the actual reality.

Before suggesting grandiose reforms, those sitting in the higher echelons need to first understand the reasons behind under-representation of women in the judiciary.  They need to comprehend that primary reason of the deficiency is the absence of conducive and encouraging environment in judicial settings.  The difficulty is two-fold; firstly, many young female lawyers leave legal profession due to attitudinal problems of male colleagues in the profession. Entering the premises of civil/session courts for a young female lawyer is often an unpleasant experience. Sizeable numbers of the lawyers including octogenarians prefer unwelcome advances and gestures to female colleagues, a clear manifestation of sexual harassment.  Such a suffocating environment put female lawyers in an embarrassing situation leading to stifling their cherished dreams.  The problem is further aggravated as the majority of subordinate judiciary is selected from young lawyers and due to females’ lawyers dropouts, little space is left for the new female entrants in the judiciary in the formative phase.

Secondly, few young female judges have resigned from their posts when they failed to cope up with rude, abusive and unruly conduct of male lawyers. Post Iftikhar Chaudhary’s era has witnessed lawyers becoming over-sized and not coming to terms with decant behaviour demanding professional ethics.  Subordinate judiciary is in the line of fire and the weaker segment i.e. female judges, lose instinct to survive in the mad race of the fittest to survive.

Another reason for dropouts is embedded in the socio- cultural milieu of the society which restricts the mobility of married women owing to family obligations. The female judges are no exception to this practice, hence, under family compulsions; few say farewell to their jobs as judges.

Article 193 of the Constitution   lays down the conditions necessary for appointment of a judge in the High Court. It provides that a person can be appointed a judge of the High Court if he has been advocate of high court for not less than ten years or has held a judicial office in Pakistan for a period of not less than ten years. Since there is an acute shortage of senior women lawyers and judges (who have held judicial office for ten years) in the country and, therefore, even if quotas are introduced at the High Court’s level, that will not be easily filled unless the pool of women lawyers and judges to be considered for elevation is expanded.

Besides above, there are structural issues of legal profession which are inherently biased; the profession has conventionally stamped as a male dominant line of work. As discussed in the foregoing lines, the working environment is unsuitable for female lawyers and under such circumstances; it becomes all the more difficult for them to achieve status necessary for an invitation to the bench. Few lucky women lawyers, who acquire the necessary legal reputation, fail to garner support amongst the male-dominated panel of judges entrusted with the task of elevation/appointment.

A member of PBC from Balochistan opposed fixation of quota even in the High Courts, as per his understanding this will result in killing of merit and appointment of low calibre judges. This suggestion is absurd, misogynist and discriminatory thus reflecting the inbuilt bias against women prevalent in legal fraternity. Merit will not be killed if appointment process is transparent and competitive; those in power can ensure that eligibility should not be compromised while ensuring female representation on bench through quota or otherwise. Prior to being judgemental on the issue, the respected member of PBC needs to consider the maxim,’ it is well known among lawyers that the finest advocates never make the best judges’.

The suggestion put forward by PBC human rights committee is reasonable and sensible. It rightly suggested that a quota in Supreme Court is not appropriate; however, efforts should be made to fix a quota for women in High Courts and sub-ordinate judiciary. Fixing quota in High Courts is a viable option, because against  any order passed by High Court, there is still a remedy available in the form of Intra Court Appeal (ICA), Constitutional Petition for Leave to Appeal (CPLA) to correct any defect. The Supreme Court is court of ultimate jurisdiction where no remedy of appeal is available; any experiment at top judicial hierarchy carries with it the risk of irremediable miscarriage of justice.

In addition to fixation of quota, certain other recommendations can be made to diversify the current masculine outlook of our judicial system. Induction of women lawyers as ADJ should be encouraged and increased, so the lordships whilst appointing High Court judges consider scrupulous and competent female district judges for elevation in the High courts. ADJs in general and female ADJs in particular should be meticulously watched by keeping computerized record of the total number of cases decided by them, the number of their decisions upheld and reversed by the superior courts. Such updated record will provide basis for preparing merit list for elevation of judges to High Court from subordinate judiciary.

There is also a dire need that Lawyers elected bodies across the country should take stock of the situation and devise ways and means to control the unruly conduct of lawyers. Their capacity building short courses should be initiated along with incorporating in them the virtues of   adherence to the rule of law. It is now heartening to know that the newly appointed Chief Justice of Lahore High Court has taken some appreciable corrective steps; one of them is constitution of a high level committee for the protection of women judges belonging to lower judiciary from alleged harassment by lawyers and others. The committee comprises judges of the LHC and has been conferred with the power of taking action against those lawyers who will be found guilty of harassing female judges.

Dearth of ladyships in judiciary in a democratic dispensation is an anathema for the society; wholehearted efforts in legal profession are required to address this issue. Serious endeavours are needed to enhance women’s representation within the judiciary and eventually achieve gender equality in the legal profession. It will require unwavering support and dedication from all the actors on the constitutional stage including members of the executive, the lawmakers, the chief justices and other senior members of the judicial arm of the state.