9th December 2021
Panelists called for amendments to rules and laws that ensure increased participation of women in the legal profession, transparency in the process of appointment of judges to the higher judiciary, and personal accountability in courts and bar rooms.
These recommendations were derived following the session “Mainstreaming Gender Equality in the Judiciary” on day two (November 21) of the Asma Jahangir Conference 2021 – Challenges to Human Dignity. Moderated by Barrister Waqqas Mir, partner at AXIS Law Chambers, the panel included senior Advocate of the Supreme Court (SC) and member of the Judicial Commission of Pakistan (JCP), Akhtar Hussain; South Asia legal advisor for the International Commission of Jurists, Reema Omer; President of the Sindh High Court Bar Association, Salahuddin Ahmed; and founder of Women in Law and LEARN pk, Nida Usman Chaudhry.
A pre-recorded message by member of the Special Procedures Working Group on Discrimination against Women in Law and Practice, Dorothy Estrada Tanck, was also played during the session.
Advocate Hussain stated that Pakistan is a male-dominated society in which equality is not realized. Therefore, the judiciary has a long way ahead to continue to struggle for equality. He provided that women in the legal profession are only now increasing in number, as compared to just ten years back when their strength was nominal.
He lamented the lack of policy as to appointments, especially of women, in the superior judiciary. Advocate Hussain asserted that there needs to be greater representation in all levels of the judiciary and in lawyer’s bodies. Although there is no quota for women, this can be corrected through assertive actions for equality in appointments at the bar and judicial level.
Omer held that the near absence of women in the legal profession is a democratic crisis and a question of the independence and representation of the judiciary. She argued that it should not be simply disregarded as a ‘gender problem’ and something of low priority. Pakistan being the only country yet to have a female SC judge is not a coincidence, rather it points toward several structural and societal issues, as well as issues of a certain mindset because of which the SC lacks a woman’s voice.
Giving the example of South Africa, which introduced several constitutional reforms in 1996, Omer stated that the law now held that even in merit there should be diversity. As a result of this reform, she provided that the number of female judges in South Africa’s courts went from just two out of two hundred in 1996 to nearly 30% of the judiciary in 2018.
She added that there are no apparent rules for appointments in the JCP, and no apparent criteria under which candidates are assessed and selected. She argued that there is transparency in South Africa, and therefore scrutiny and accountability. The JCP, however, is absolutely opaque, and is comprised exclusively of men who usually appoint other men. Omer said that women are absent even from the appointment process, and that there is a dire need for constitutional, legal amendments, in how the JCP appoints judges, in the formation of a criteria and bring in accountability, and to alter mindsets.
Advocate Ahmed agreed that there is definitely systemic discrimination against women in Pakistan’s courts as well as the process of appointment of judges. He stated that there are very few women even at the entry level, and there can be many reasons for that, including Pakistan’s deeply patriarchal society and perceptions of certain professions as being bad or unwelcoming to women. However, once women do enter the legal profession, Advocate Ahmed stated that they face discrimination in the benches, bar rooms and offices. In such an environment, women are made to feel uncomfortable and are therefore dissuaded from wanting to forward their careers or drop out of the profession entirely.
He was of the view that there needs to be reform that cuts through every level, and a need to be more inclusive. Pakistan’s judiciary, especially constitutional judiciary in the superior courts that adjudicate conflicts in our society, play a quasi-political role, and when there are diverse viewpoints and voices then these conflicts can be answered in different ways.
Advocate Ahmed said the judiciary should reflect the composition of the people of its country, and one way of achieving that is through clarifying the criteria for appointments. He held that arbitrariness in appointments can lead to a visionary judge one day and a retrogressive one the next. Therefore, bar members have been forced to swallow a bitter pill and insist on the framing of criteria before anything else.
Chaudhry opposed what she called a ‘lazy response’ that women can only advance if they themselves come forward, as it disregards historical inequalities and social dynamics that have led to the marginalization of women and other groups to begin with. She said that gender mainstreaming cannot be accomplished with just changes to rules, principles and laws, rather there needs to be change in the overall culture. She pointed out that women are also absent from the reformation process, and where they are included, they are simply tokens.
She stated that there are myriad other issues, such as a lack of harassment committees, daycare centers and maternity leaves, in addition to various lacunae in laws. Chaudhry opined that the question is not about how many women come forward, the question is what steps and measures have been taken by those in control to address the disparity at the bench and the bar.
She posited that there needs to be consensus on the principles of judicial nominations, which must include recommendations from female lawyers. There must be standing committees on gender, diversity and outreach events to inspire young women and students toward the legal profession. Eligibility should be broadened at the bench, and be open to non-practicing backgrounds. There needs to be constitutional reform and a need to take this matter seriously.
In her recorded message, Estrada pointed out that the gender equality in the judiciary is derived from gender equality in general, and one of the doors to entry to gender equality in the judiciary is the issue of gender-based violence and the way judicial bodies have approached this problem. She said that the Office of the High Commissioner on Human Rights (OHCHR) holds that there needs to be a gender-sensitive approach that enshrines equality.
She highlighted that women and girls’ access to justice hinges upon the state’s obligation to remove all obstacles to that access, and once they are able to access justice, they must be ensured that their issues will be considered by the judiciary with a view to reaffirming equality and fundamental human rights, even if it requires subversion of pervasive cultural patriarchal values.