Are Females Underrepresented in The Superior Judiciary?

In 1974, the first appointment of Female judges in Pakistan, the vital selection of “Female judges” in the past decade. It has caused a jump in female representation in the judiciary to more than one third in family courts. Are Females Underrepresented in The Superior Judiciary? A quiet move sends a message of adherence to the principle of gender equality. As per the international treaties to which Pakistan is a signatory.

By investigating the everyday interactions and preoccupations of women judges in their daily management of justice. Explores the socio-legal reception of the human rights discourse from the perspective of the female judges. However, The challenge in this situation is whether this change will only direct. Whether it will also guide to actual and liable justice. The findings also explain how the global agenda impacts social expectations and conceptualizations of rights within and beyond the state.

Pakistan is the only country in South Asia to have never appointed a woman as a Supreme Court judge. Female lawyers are under-representing in the superior judges, though the 1973 Constitution does not prohibit. The appointment of women in the higher judiciary. Instead, the Constitution provides that “all citizens are equal before the law. However, That there shall be no discrimination based on sex” (Article 25).

Gender Bias and Misogyny:

Gender bias and misogyny are deeply rooting in the fabric and psyche of our male-chauvinistic society. Despite making inroads in every institution in Pakistan, Women members of our community. They have to face and suffer these issues on a day-to-day basis. For the most part, they don’t get a level playing field to compete with their male peers. When it comes to the superior judiciary, it is no different. The history of the superior Court is steep in gender bias and discrimination.

The International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

States that ‘‘State parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country. In particular shall ensure to women, on equal terms with men. The rights to participate in the formulation of government policy and the implementation thereof. And to hold public office & perform all public functions at all levels of government” (Article 7).

Further, Pakistan is a signatory to the International Conference on Population and Development in Cairo, 1994; the UN Conference on Women in Beijing, 1995. Pakistan has also signed the UN’s Millennium Development Goals and Sustainable Development Goals. Which set out gender equality as one of its primary goals. However, Having signed these international instruments, Pakistan is obliged to promote gender equality in the superior judiciary.

The Human Rights Commission of Pakistan’s Report

On the State of Human Rights in Pakistan (2016) observed that only 5.3 percent of Pakistan’s High Court judges are women. The lowest in the region. The report demonstrates that working conditions and opportunities immeasurably discriminate against women. Who are, as a result, rendered less able to progress despite their brilliance in the legal profession.

The 18th and the 19th Amendments to the Constitution

stipulate a nine-member Judicial Commission of Pakistan and an eight-member parliamentary Committee for the appointment of judges in the superior judiciary. These bodies do not implement a particular representation of females. Further, the criteria on which appointment for judicial appointments is arbitrary, considering that only a few women have appointed in the superior judiciary.

Judicial appointments in the history of Pakistan

 1994 witnessed unparalleled judicial appointments in the history of Pakistan. The late Benazir Bhutto elevated as many as five female lawyers to the High Courts of this country; Fakhar-un-Nisa Khokhar, Talat Yaqub, and Nasira Iqbal as Lahore High Court judges, Khalida Rashid Khan as Peshawar High Court Judge and Majida Rizvi as Sindh High Court Judge. Seventy-two years have gone by since our independence, and not a single woman could make it to the Supreme Court. It begs the question, why? Ms. Justice (retd) Fakhar-un-Nisa Khokhar in her erudite speech in a convention entitled Judiciary and Gender Bias. Ms. Justice (retd) Nasira Javed Iqbal made a speech at the same conference.

“Five women judges appointed in the High Courts in 1994. Two of them had a legitimate expectancy to become Chief Justices of the High Courts of Punjab and NWFP, respectively. However, both of them were superseded & were allowed to retire without being elevated to the Supreme Court of Pakistan”.

Tragically, Ms. Justice (retd) Fakhar-un-Nisa Khokhar is not select as the chief justice of the Lahore High Court, in brazen infringement of the principle of legitimate expectation laid down in PLD 2002 SC 939 and Article 25(2) of the Constitution. Chaudhary Iftikhar, her junior, was appointing as the Chief justice of the Lahore High Court.

petition to challenging

The Supreme Court accepted her petition to challenging it and allowed her to work as a puisne judge of the Lahore High Court. So, To her dismay, little to no work was assigned to her by the then Chief Justice, thus making her 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 the gender bias! She sets out the aspects of these events in her autobiography, Waqalat, Adalat our Ayewan Tak (From Lawyering to Court to Parliament”, which was published a few years ago. As a lawyer, Mr. Justice Qazi Faez Isa wrote an article titled “Why can’t a woman be chief justice?” in a newspaper in favor of Ms. Justice (retd) Fakhar-un-Nisa Khokhar when she laid off her robes as a judge of the Lahore High Court in 2004.

Justice Khalida Rashid was all set to become the Chief Justice of the Peshawar High Court in 2011. However, Justice Khalida Rashid is offering a Hobson’s choice: to be appointed the president of the International Criminal Tribunal on Rwanda or to quit. She chose the first option. Ashraf Jehan Jamali, the wife of the former Chief Justice of Pakistan Anwar Zaheer Jamali, became the first female judge of the Federal Shariat Court in 2013/2014. Ms. Justice Syeda Tahira Safdar became the first female chief justice of the Baluchistan High Court in 2018, marking the enormous struggle waged by the female lawyers.

Gender equality in the superior judiciary in other countries

Other countries in the region have much more reliable indicators regarding gender equality in the higher judiciary. Fifty years ago, Sri Widoyati Wiratmo Soekito became the first Indonesian Female to elevate to the Supreme Court in 1968. In 1989, India had its first Women judge of the Supreme Court, Fathima Beevi. In 2012, Maria Lourdes Sereno named the first women chief justice of the Philippines. Sushila Karki was the first woman chief justice to head Nepal’s Supreme Court in 2016.

Superior judiciaries of developed countries

 Like the UK, the US, and Canada might overwhelm with gender bias. Still, several female lawyers have been able to serve in the apex courts. Brenda Hale is a British judge serving as president of the Supreme Court of the UK; she was also the first Women lawyer to elevate as a Law Lord in 2004. In the US, Sandra Day O’Connor appoints in 1981 as the first woman to serve on the Supreme Court of the United States. Ruth Bader-Ginsberg appointed as Supreme Court judge in 1993. So, Sonia Sotomayor has been serving since 2009, and Elena Kagan appointed as a Supreme Court judge in 2010. Justice Rosalie Abella elevated as a judge of Canada’s Supreme Court in 2004. Beverley McLachlin served as the Chief Justice of Canada from 2000 to 2017.

To eradicate gender imbalance in Pakistan’s superior judiciary

 Article 175A could be revised to ensure due representation of women in the Judicial Commission of Pakistan and the Parliamentary Committee. A specific quota for women in the superior judiciary may prescribe within the mandate of Article 25 of the Constitution. The population of women in the country and the proportion of women in the legal profession may guide our policymakers regarding fixing an appropriate quota for women in the superior judiciary.

Female judges to be appoint soon to Supreme Court:

According to Chief Justice Asif Saeed Khosa, You will quickly see women judges in the Supreme Court of Pakistan. The chief justice said that with time, the differences between men and women would disappear. Justice Khosa said that the top Court was working to support women to join the judiciary. He said that the Supreme Court was working to provide women with security & safety. The chief justice said that it was necessary to include women in the Superior judiciary. So, Chief Justice Asif Saeed Khosa noted that softness was a need in some cases, such as those where women require bail. The chief justice applauded female judges for working in male-dominated fields.

Conclusion

However, If women are providing due representation in the superior judiciary. They will undoubtedly contribute to the overall betterment of society as decisions of superior courts are binding on all institutions. However, In order to guarantee fundamental rights and achieve equality and social justice, the judicial appointment process must be made merit-based, transparent, and non-discriminatory. However, An inclusive approach will help to provide access to justice for all. So, More specifically, it would help to redress grievances of the marginalized in society, including women and children.