History — not in the making

Are people against Justice Ayesha’s elevation for independence of judiciary or nurturing their deep-rooted misogyny

Anwer Mansoor Khan September 23, 2021
The writer is a former Attorney General for Pakistan

No nation can ever be worthy of its existence that cannot take its women along with the men. No struggle can ever succeed without women participating side by side with men. There are two powers in the world; one is the sword and the other is the pen. There is a great competition and rivalry between the two. There is a third power stronger than both, that of the women. — Muhammad Ali Jinnah

Perhaps, Jinnah knowing the deep-rooted bigoted society inhabiting the sub-continent felt it important to guide his newly founded nation, Pakistan, with this message. The existence and representation of women is undeniably important; but ironically all over the world, realisation of such importance has been through struggles and not as a matter of natural right. Pakistan is no different. The 1973 Constitution recognised this struggle of women and children therefore requiring more protection than men, wherefore, the framers of the Constitution had inserted Article 25(3), stating, “…. Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”

Pakistan is proudly flaunted as the first Muslim country to have a woman Prime Minister. Pakistan enjoys representation, albeit scarce, in Parliament and the Executive. However, in the third pillar of democracy — the Judiciary, especially the higher judiciary — representation of women is negligible. The recommendation to elevate Justice Ayesha Malik to the Supreme Court gave us hope though.

I was reading a news report that outlined the reasons given by Justice Sardar Tariq Masood of Supreme Court to oppose the elevation of Justice Ayesha Malik. Alas it took the honourable judge, the Pakistan Bar Council, the Provincial Bar Councils, senior lawyers, Bar representatives, and others, approximately 40 out of turn elevations (in the tenure of numerous Chief Justices) to the Supreme Court of Pakistan and over approximately 40 years, to finally give reasons and cause the forcible prevention of the out of turn elevation of Justice Ayesha Malik to the Supreme Court of Pakistan. Ironically, such an elevation was a history in making, a first of its kind, as it is the first time in 75 years, a woman was recommended for an elevation to the Supreme Court of Pakistan. More ironically in the last three years, there have been at least two out of turn elevations of male judges to the Supreme Court from the same Lahore High Court where Justice Ayesha Malik holds office. Where were the Bar associations and the bulwarks of the independence of judiciary, when such out of turn promotions were undertaken in the last four months if not before. Today when Justice Ayesha Malik is prevented from being elevated, the bar councils, bar associations, self-acclaimed feminist lawyers, liberals, and equal rights activists, all blur their beliefs and find it most convenient to prevent the elevation of a woman versus out of turn elevation of all the other 40 male judges in the past.

Indeed, I do not disagree to the stand that the tradition of out of turn elevation encourages, amongst others, biases, exercise of unfettered discretion and causes low morale amongst the honourable judges and the general public. Every institution requires structure and pre-set qualifications for appointments and elevations. In the absence of such structure, seniority has been an unwritten qualification, albeit an incomplete one. However, such a stand against out of turn elevation should have been taken at the time when the male judges were elevated out of turn and not at the time when an extremely competent and honourable female judge was being elevated out of turn. Undeniably this is a rare instance and protection of women representation in the judiciary is as important for the nation as women representation in Parliament. Short-sightedness has always caused nations to fail.

Does this prevention not cause discrimination, violating Justice Ayesha’s right’s as a citizen and as a woman? When the Constitution permits the state to make special laws for women, then why must the fraternity only seek to implement the prevention of Justice Ayesha’s elevation? Perhaps it was easier to cause this prevention. After all it begs the question: are people against Justice Ayesha’s elevation, in the name of independence of judiciary or are they nurturing their deep-rooted misogyny?

Published in The Express Tribune, September 23rd, 2021.

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