Daily Times

Female judges face an institutionalised bias. Gender bias and misogyny are deeply rooted in the fabric and psyche of our chauvinistic society. Despite making inroads in every institution in Pakistan, female members of our society still have to face these issues on a day-to-day basis. For the most part, they don’t get a levelled 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 five female lawyers to High Courts: Fakhar-un-Nisa Khokhar; Nasira Iqbal and Talat Yaqub as the Lahore High Court Judges, Khalida Rashid Khan as the Peshawar High Court Judge and Majida Rizvi as the Sindh High Court Judge.

Almost 72 years have gone by since our independence, not a single woman has still made it to the Supreme Court. It begs the question: why?

Justice (Retd) Fakhar-un-Nisa Khokhar, in her erudite speech in a convention, entitled Judiciary and Gender Bias (available on the SC website), 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.”

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 the Chief Justice of the High Court of Punjab and NWFP [now Khyber Pakthunkhwa], respectively. However, both of them were superseded, and were allowed to retire without being elevated to the Supreme Court of Pakistan.”

Tragically, 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.

Justice Khokhar sets out the details of these events in her autobiography, “Waqalat, Adalat aur Aiwan Taq (From Lawyering to Court to Parliament),” which was published last year

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 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 idly 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 gender bias.

Justice Khokhar sets out the details of these events in her autobiography, “Waqalat, Adalat aur Aiwan Taq (From Lawyering to Court to Parliament),” which was published last year.

As a lawyer, Justice Qazi Faez Esa wrote an article, entitled, “Why Can’t a Woman be Chief Justice?” in favour of Fakhar-un-Nisa Khokhar, when she laid off her robes as a judge of the Lahore High Court in 2004.

Justice Khalida Rashid was 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.

Justice Ashraf Jehan Jamali became the first female judge of the Federal Shariat Court in 2013-2014. She is the wife of the former Chief Justice of Pakistan (CJP), Anwar Zaheer Jamali. Justice Syeda Tahira Safdar became the first Chief Justice of the Balochistan High Court in 2018; marking the enormous struggle waged by female lawyers.

Female judges face an institutionalised bias. A case in point is Justice Erum Sajjad Gul of the Lahore High Court. She was not confirmed by the former CJP, Mian Saqib Nisar, and, thereby, got a raw deal. If handing down reportable judgments were the criteria, she had 34 to her credit (as per the Lahore High Court website). Meanwhile, there are confirmed sitting judges who have not surpassed her as yet in this regard. She challenged her non-confirmation by instituting a writ petition under Article 184(3) of the Constitution through former Justice 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 CJP Nisar. Curiously enough, before being elevated to the High Court, in August 2010, she wrote an article entitled, “The Legal Bias Against Women.”

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 would, too, 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. It was Dame Elizabeth Kathleen Lane, who made history by becoming the first-ever woman to sit in the UK High Court in 1965.

When it comes to the US judiciary, it was President Jimmy Carter who decided to diversify it by the inclusion of women as well as minority members of 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 and helped lay down a new criterion for them. Since then, the US judiciary has never looked back to the old days. Before Carter took office, only one per cent of judiciary composed of women, and when he left the office as president, the percentage was enhanced to a remarkable 15 per cent. Ruth Bader Ginsburg, now Justice of the US Supreme Court, was initially elevated to the judiciary by Carter when he appointed her as a judge of the US Court of Appeals for the District of Columbia Circuit in 1980.

Justice (Retd) Sandra Day O’Connor shattered the glass ceiling in 1981 by becoming the first female judge in the US Supreme Court. She was appointed by President Ronald Reagan. Now, three female judges-Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan-are serving in the US Supreme Court.

Justice (Retd) 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 seven female judges to the Supreme Court. As of late, there are three female judges in the Indian Supreme Court.

Pakistan is a signatory to the Convention on Elimination of all Forms of Discrimination Against Women (CEDAW).

Pursuant to that, an obligation is cast upon Pakistan to appoint at least 33 per cent women judges in the higher judiciary. Now, almost 25 years after the first appointment of a female judge by Benazir Bhutto, 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.

The total number of judges in the Lahore High Court stands at 46, with only two women judges in the population of 110 million people in the province of Punjab. As things stand, 14 posts lie vacant at the Lahore High Court. The big question is: how many vacancies would women lawyers fill in the future?

Though the law of the land does not envisage any bar to appoint women lawyers as judges of the superior courts, 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 special quota for the appointment of female lawyers in the superior judiciary by relaxing the appointment procedure and taking a leaf out of President Jimmy Carter’s book.

The writer is a practising lawyer and a columnist based in Lahore. He tweets at @zaeem8825. He can be contacted at zaeem.bhatti89@gmail.com