Lawmakers from the MQM recently tabled a Bill in the National Assembly proposing an amendment to the Supreme Court (Number of Judges) Act, 1997. The amendment calls for the prescription of a legislative quota, ensuring that at any given time, at least 25 per cent of the total number of judges in the Supreme Court of Pakistan are women. There may be objections regarding the constitutionality of an amendment that affects the mode of appointment of judges (which I do not address here), but it is important to appreciate the intent and purpose of the Bill. The Bill aims to correct a glaring imbalance in our legal system where “not a single judge [in the Supreme Court] represents the lives, the sensibilities and the impacts of the law on more than half of [the] population of the country.”
Women are under-represented in the superior judiciary of Pakistan. Not a single woman has ever been elevated as judge of the Supreme Court in our near seven-decade-long legal history. Only three of the 49 justices of the Lahore High Court are women. The Peshawar High Court has two female judges and the Balochistan High Court and the Federal Shariat Court have one each. There are currently no female judges at the Sindh and Islamabad High Courts. This puts the overall representation of women in the superior judiciary of Pakistan at a dismal 5 per cent. Pakistan then falls far short of fulfilling the commitment made at the UN Beijing Conference in 1995 to establish gender balance in the judiciary. Other countries in the region fare better in this regard. In India, the first female member of the Supreme Court was appointed in 1989, and till date six women have sat on the bench of the apex Court. The Supreme Court of Bangladesh currently has six serving female judges.
The primary explanation for women’s exclusion may lie in the very structure of the judicial/legal profession. The cultural conception of a judge is essentially male, such that, as Lady Justice Hale of the UK Supreme Court pointed out, “the notion of a woman judge can seem like a contradiction in terms” (June 2014). The legal profession has traditionally remained a boys’ club. A report published by this paper last year found that opportunities and work conditions are skewed against female lawyers, who may be unable to reach the prominence necessary for an invitation to the bench. Those who attain the requisite level of professional recognition may not muster sufficient support amongst the male-dominated collegiate of judges who eventually determine the question of appointments or elevation. In a recent interview with a national daily, Justice Nasira Iqbal explained that the absence of women in the superior judiciary is a manifestation of male chauvinism: “They don’t want to appoint women, they want them to be at a lower standing.” In defence, many would point to the particularly demanding (read unsuitable) nature of a judicial career, the lack of merit and the high attrition rate amongst female lawyers to explain the fewer number of women at the bench. Such hackneyed explanations have been employed elsewhere to justify women’s exclusion from positions of influence and should not be permitted to detract from what is a real problem.
The argument for greater representation of women in the judiciary is two-fold. The principles of equality, fairness and justice espoused by the law and which underpin the idea of democracy, mandate inclusiveness and non-discrimination against women. A government institution dominated by a select section of society — men — lacks legitimacy. More controversially, women’s presence in the judiciary is seen as essential for providing a gendered (and possibly a different) perspective to judicial decision-making. But are gender quotas in the judiciary the only way forward? Constitutional objections, arguments of merit versus numbers and established practice may not permit the proposed amendment to go through. Any argument against treating gender as the criterion for judicial appointments, however, necessitates that women in the legal/judicial profession are not penalised by reason of their association with this descriptive category. A fair judicial policy committed to the cause of gender balance can, if accepted and implemented by the judicial commission, set in motion the change intended by the Bill.
Published in The Express Tribune, April 26th, 2016.
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