The need for fair representation of women in the justice sector cannot be ignored
oes the constitution matter?” was how the topic was phrased, as a rhetorical question, in a recently held debate at the Lahore High Court Bar Association, by Qanoondan – a digital legal education platform, to mark the fifty years of the Constitution of Pakistan, 1973. It left me thinking long and hard about the subject. At first, given my background in law, I thought, “well, of course, it does. Why would this even be up for debate?” But then I wondered: matter for whom? Whose interests does it serve? Does it live up to its promise of providing a framework for the protection of fundamental rights of all people and for setting up governance structures for the state, clearly defining their roles and powers? How has it been interpreted and applied in practice, particularly for women and minority groups?
The constitution is the fundamental law of the land. Our constitution has a chapter on fundamental rights and freedoms and one on principles of policy. These include qualified rights with limitations read into them such as for freedom of assembly (Article 16) and freedom of expression (Article 19) and progressive principles to be attained incrementally depending upon the availability of resources. It contains important guarantees and provisions for women, minorities and children as a helpful starting point to argue for the enactment of special laws and protections to achieve the degree of operative equality and personal freedoms and care they need, given their peculiar circumstances.
Article 25 talks about equality of all citizens. It calls for non-discrimination on the basis of sex and preserving the ability of state to take affirmative action for the protection of women and children. This was written even before the 1979 UN Convention on Elimination of Discrimination Against Women (CEDAW) was promulgated. Article 34 makes ensuring full participation of women in national life a principle of policy. Article 26 calls for non-discrimination in terms of access to public spaces. Religious freedom and protection are guaranteed in Articles 20 and 22, and protection of property in Articles 23 and 24. The constitution calls for protection of minorities in Article 36 and for promotion of social justice and eradication of social evils in Article 37. Yet, it undermines its stated goals of ‘equality’ and ‘non-discrimination’ when in Article 41 it excludes persons other than Muslims from being eligible for the office of president and in Article 91(3) for prime minister.
The recent jurisprudence of the Sindh High Court with regard to a petition seeking a ban on Aurat March in Karachi has been more encouraging. It not only upheld the women’s fundamental right to march but also imposed costs on the petitioners seeking a ban for filing frivolous litigation.
On the one hand, the constitution appears to guarantee certain fundamental rights and freedoms rooted in liberal democratic framework. On the other, it contains inherent contradictions and broad restrictions that have allowed some interpreters to argue limitations that can be imposed in the exercise of accessing the so-called rights and freedoms. This was evidenced most recently when the Lahore High Court imposed an obligation on the Aurat March organisers to police the expression at the International Women’s Day March 2023 in exchange for the city administration to provide security and permission for the march to proceed. One would think that it was not the role of the courts to impose ‘reasonable restrictions’ for exercise of fundamental freedoms, but to determine the vires of the restrictions imposed by the Executive. In our case, the courts have been called upon, through various petitions, to impose restrictions. In this regard, the recent jurisprudence of the Sindh High Court with regard to Aurat March in Karachi has been more encouraging. It has not only upheld the women’s fundamental right to march but also imposed costs on the petitioners seeking a ban for filing frivolous litigation.
The two cases highlight the violability of citizens’ rights and the vulnerability of constitutional provisions to interpretation by courts. They also highlight the need for fair representation of women in the justice sector in the interest of diversity and inclusion of the marginalised.
The articles on the process of judicial appointments in the constitution, Articles 175-A, 177 and 193, were drafted without any consultation with women. (This was confirmed by Senator Raza Rabbani, following a discussion at LUMS where he was my co-panellist.) It is, therefore, no surprise that the process lacks a gender perspective and takes into account neither the structural and invisible barriers nor the historical gatekeeping and injustice that hold women back in the legal profession. There have been attempts to read into the process technicalities like seniority, which is not even a legal requirement. We hardly ever see Articles 25 and 34 of the constitution (that are actual principles) being argued as relevant for consideration by the Judicial Commission of Pakistan (JCP). Being a constitutional body, the JCP must apply and uphold provisions of Articles 25 and 34 in its practice and ensure affirmative action under Article 25(3). They can do this by amending their rules and ensuring that a gender balanced list of nominees is presented and that where two people are of equal merit, the one bringing gender diversity is preferred. So far, the process remains devoid of systemic provisions to ensure fair representation.
What matters most is not just the procedural role the constitution plays in the larger scheme of affairs of governance but a more substantive inquiry into how it is applied or interpreted to see whether it really matters for women, children and minorities. Even under larger scheme of affairs of the constitution and its role of providing a governance framework etc, the end purpose is for the people to benefit from the structures, frameworks and division of powers it creates. However, not all people do when arbitrary, inconsistent or limiting interpretations are adopted. Whether the constitution matters in substance or not depends largely on the role it can play in translating through its application its equality and non-discrimination clauses.
The writer is a diversity and inclusion advocate. She tweets at @NidaUsmanCh