The high court of men

November 01,2016

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As Hilary Rodham Clinton stands waiting on the gates of the White House, ready to occupy a throne never before occupied by women, thoughtful people everywhere are recognising the tremendous social change that has already taken place in our world over the last half century. Bob Dylan was up to something when he said, back in the early 1960s:

The order is rapidly fadin’/ And the first one now

Will later be last/ For the times they are a-changin

Amidst this changing global context, it is a little surprising that the list of judicial nominees circulated by the Lahore High Court failed to generate any public debate whatsoever. Circulated in the second week of October, the list contains the names of 16 people who might soon be appointed as justices of the Lahore High Court. Six of the nominees are career judges. Ten are practising lawyers. But there is one category that is totally missing: Women. It is as if the nominations were for The High Court of Men.

This isn’t the first time that women have lost out in the race for judicial appointment. Since 2010, when the Judicial Commission of Pakistan first took complete charge of appointments to the superior judiciary, the ratio of women appointees has remained around five percent. In the beginning, observers thought this may be a passing phase. But by now, when the commission is in its 6th year of work and has made more than 150 appointments, it is hard to miss the trend.

A few months back, a public debate erupted on this issue. But it culminated in a Supreme Court Number of Judges (Amendment) Bill which was misdirected on two grounds: firstly, interventions in a constitutionally-sanctioned judicial appointment process cannot be made through a statute passed by simple majority; and secondly, intervening directly at the level of the apex court would be most impractical. But now when a list of high court nominees has surfaced – which is the proper time and place for intervention – the academia, the so-called progressive political parties and even the multi-million dollar gender rights industry seem to be all fast asleep.

The percentage of women in Pakistan’s superior judiciary today is many times lower than comparable figures from the lowest rungs of the judiciary (over 20 percent), the civil service and even parliament (over 20 percent). It is also lower than the figure in socially comparable jurisdictions like India where it exceeds 10 percent. Only in the fighting cadres of the armed forces of Pakistan does one find a comparable situation.

The phenomenon of women’s underrepresentation in Pakistan’s superior judiciary is particularly intriguing because this is an institution of very recent vintage. It was built almost from scratch over the last seven years and you can’t blame General Ziaul Haq for its composition. In terms of the superior judiciary, Pakistan effectively got a fresh start, a tabula rasa on July 31, 2009, when the restored Supreme Court purged more than half of the superior judiciary’s entire membership. All but 11 amongst the presently serving 137 superior court judges have risen to power subsequent to this purge.

While this opportunity could have been used to opt for a more inclusive and egalitarian judiciary, here is a glimpse of what we have built. Supreme Court: 18 judges, no women. Lahore High Court: 46 judges, 3 women, namely Justices Ayesha Malik, Alia Neelum and Erum Gull. Sindh High Court: 37 judges, 1 woman, Justice Ashraf Jehan. Peshawar High Court: 16 judges, 1 woman, Justice Musarrat Hilali and Balochistan High Court: 10 judges, 1 woman, Justice Tahira Safdar. Islamabad High Court: 7 judges, no women. Federal Shariat Court: 3 judges, no women. Total: 137 judges, 6 women. 16 more nominated; no women. That it makes is less than five percent – and declining.

I would not be so impertinent as to allege that these numbers provide evidence of systematic gender discrimination, a violation of Article 25 of the constitution. The commission could have justifiable reasons for being unable to appoint more women about which we can only speculate. Maybe, practising women lawyers and judges with more than 10 years of experience are simply not available in the relevant age bracket – 45 to 62 years – since not enough women entered the law in the 1980s and 1990s. Or maybe, the structure of the judicial career is such that it does not attract women who are otherwise qualified. Maybe. Bu it is only fair to demand that, whatever the reasons might be, they be shared with the people of Pakistan, and with their elected representatives.

Public debate about the composition of the superior judiciary should not be seen as an affront to the institution’s well-deserved respect. It is a necessary corollary of the democratic system of government envisaged by our constitution. In almost every vibrant democracy ‘who sits on the bench’ is a widely contested issue. Empirical political scientists crunch these numbers and comment on their implications. The underlying idea behind such analysis is simple: the law is abstract and impartial but judges are people, not robots. The thing with people is that no matter how fair they may try to be, they are inevitably affected in their decisions by their own ethnicity, gender, class, religion etc. Therefore, who sits on the bench and who doesn’t has an impact of people’s rights.

Opinions can, and in fact do, vary widely about the underlying normative issue: is it necessary to have women on the bench? Let’s not fool ourselves: in this country, we have diverse visions of society competing with each other. If the numbers of women in the judiciary are dwindling, or if women are generally being erased from the public sphere, it is because not everyone thinks this is a problem. In the spirit of democracy, it would be neither fair nor wise to brush these views aside; these views must be candidly recognised and courteously engaged with. I do not intend to use this little space to press my personal, inexperienced, normative views on the matter. I am simply flagging an empirical reality so that those who care may be able to have a reasoned debate.

Fortunately, the constitution already provides a convenient locus for such deliberation: the bi-partisan, bi-cameral Parliamentary Committee on Judicial Appointments constituted under Article 175-A. The eight parliamentarians who comprise this committee will soon be assembling in a closed-door session to vet the Lahore High Court’s list, or whatever part of it is endorsed by the Judicial Commission. Perhaps they would like to keep this aspect in mind as they deliberate.

While the committee’s meetings are supposed to be closed-door, this does not mean that its members cannot engage in public debate before or after the meetings. In fact, as elected representatives, they have a duty to take into confidence the men and women who elected them. If not the commission, the committee should tell the people what is really going on.

The writer is a partner at The Law and Policy Chamber.


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