Feminisation of law and judiciary in Pakistan

As a lawyer, myself, working in a patriarchal and male dominated profession, I cannot stress more on the need for making the legal profession gender-inclusive.

Till today there has been no female Supreme Court judge or Attorney General of Pakistan. As per statistics by the Ministry of Law, only 6 out of 113 judges of high courts across the country are women; and out of 198 members of 7 bar councils across the country, only 6 happen to be women, reflecting the gender disparity in the litigation and judiciary.

There is dire need to increase representation of women in law. This is in line with UN policy objectives and SDGs 5 (women empowerment) 16 (promotion of just, peaceful and inclusive societies) and 17 (partnership for goals).

Women as lawyers: The problem is not only with induction but also retention and promotion of women in the field of law. This is exacerbated with the misogynistic attitudes, sexist remarks, attacks on reputation and sexual harassment — which go unchecked or fail to get enough support for redress. There are not many female mentors or women in leadership positions to aspire young female professionals to aim and achieve big, rather they get discouraged to invest in the profession which they feel is less rewarding for women.

Women as litigants: The hindrance is not only for litigators but also for female litigants who come across the judicial system which is not gender sensitive. The judges and prosecutors need to be gender sensitized especially when dealing with cases involving sexual violence. The establishment of gender based violence courts through approval of Supreme court and now carried forward politically by the incumbent government will deal effectively with this issue if these courts have sufficient capacity.

Women as judges: The gender bias exists in judicial appointments as well. The case of Justice Fakhar-un-Nisa Khokhar is a classic example of discrimination. There is a clear Supreme Court judgment stipulating that the senior most judge of the High Court and Supreme Court have the ‘legitimate expectation’ to be appointed as Chief Justice of that respective Court. (PLD 2002 SC 939).

However, she was not elevated as Chief Justice of the High Court despite being the senior most judge of the court, and Pakistan lost its first opportunity to have a female judge to the Supreme Court. This has resulted in the absence of feminist perspective in the development of jurisprudence in Pakistan. The legal discourse of seminal cases involving women and children would’ve been different had there been a gender perspective when pinning down those judgments.

The argument put forth for not having female judges to apex courts is that there aren’t many women in law, certainly not competent ones, and justice cannot be compromised based on affirmative action. But one would wonder whether women as judges are inherently incompetent or is it the system that systematically excludes women from effective participation in the profession, denying them equal opportunities to hone their skills. Are all the male judges who have had the privilege to be on the bench in the entire judicial history of Pakistan competent and conscientious? Where character assassination campaigns or flaws prevent women from progressing in law and especially for leadership positions, does the same standard apply to their male colleagues? Certainly, not.

Gender is multi-layered and a structural issue. Gender inclusivity cannot be ensured through cosmetic changes. The entire structure needs an overhauling and the societal perception of women needs to change to accept women as individuals with an agency of their own and as equal creation of God.

The establishment of gender based violence courts and ownership of the cause of gender inclusivity in law by the Ministry of Law and Justice is the step towards the right direction. The legal fraternity, prosecutors and judges must be gender sensitised. The sexist and discriminatory attitudes towards women must be discouraged and men need to assume their responsibility in fighting misogyny to promote a just, peaceful and progressive society.

Gender equality is not only a matter of principle but also the need of time to survive in a globalised and competitive world.

 

Published in The Express Tribune, September 14^th, 2020.

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