Gender imbalance in law
15
Nearly a century after the Legal Practitioners’ Act was amended to remove the legal bar on women from practising law, women lawyers and judges in Pakistan have come a long way. However, significant challenges still remain that impede women’s access to positions of leadership in the legal profession.
The amendments to the Legal Practitioners’ Act in 1923 were in response to the refusal of high courts in Calcutta and Patna to allow qualified women lawyers to appear in courts as they were considered “unfit for the duties of the legal profession”.
Opposing the Bill, Maulvi Mian Asjad-ul-ulah from Bhagalpur Division, said in the legislative assembly such an amendment would be antithetical to justice, as “susceptibility to female charms” would make male judges and witnesses partial towards women advocates, and in the long run, women would “take the practice away from men”. Another member of the legislative assembly, Khan Bahadur Abdur Rahim Khan from the then North-West Frontier Province, supported the bill because “the presence of ladies as barristers in court will make the judges and the barristers behave themselves”.
Sentiments constituting similarly pernicious gender stereotyping are still being repeated in Pakistan almost 100 years later. For example, Maulana Sherani, the chairperson of the Council of Islamic Ideology, said last year that only women over the age of 40 could become judges as that is when “women no longer remain attractive or marriageable”. Similarly, in a private conversation, a retired judge of the Supreme Court said that because of their “caring and sensitive nature”, women lawyers were unsuitable for “hard legal matters” and if they are to practice, they should focus their practice on “softer” areas of the profession, such as family law.
The government doesn’t see women’s under-representation in the legal profession as a problem.
Perhaps unsurprisingly, such sexist attitudes have contributed to the near-exclusion of women from positions of authority and leadership in Pakistan’s legal profession and the judiciary.
Pakistan is the only country in South Asia to have never had a woman Supreme Court judge (India, Nepal, Bangladesh and Sri Lanka have all had women serve in their highest courts), and only seven out of Pakistan’s 120 high court judges (5.8pc) are women.
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Even in the district judiciary, where women are appointed judges in greater numbers, the representation of women judges sharply decreases with seniority (and hence authority). In Punjab, for example, while 20pc civil judges are women, the figure drops to 5pc in senior civil judges. Similarly, while 7pc of additional district and sessions judges are women, the number of district and sessions judges, who have executive and judicial control over their districts, is only 2pc.
The Bar too shows similar gender imbalance. Since its inception in 1973, the 25-member Pakistan Bar Council, the highest regulatory body for lawyers in the country, has never had a woman member. Bar associations fare better, but there too Asma Jahangir is the only lawyer to have been elected as president of the Supreme Court Bar Association.
Yet, the government and the judiciary still do not recognise women’s under-representation in the legal profession as a problem and reform is nowhere to be seen on their agendas. The Supreme Court’s comprehensive National Judicial Policy, 2009, for example, highlighted a number of issues impeding the proper functioning of the judiciary. Gender disparity was not even mentioned once in the policy.
There are many reasons for women’s under-representation in the legal profession. Some reflect the general obstacles and discriminatory societal attitudes towards women that permeate other areas of their professional and private life. There is, for example, now greater acceptance of women’s education, but women as professionals are still viewed with suspicion.
Where women work, there is greater opposition towards women entering traditionally ‘male’ professions such as the law. And where women choose to practise as lawyers, the expectation often is that they will discontinue once they get married and have children. Similar to other fields, Muslim women from elite backgrounds are better able to gain acceptance and success than their counterparts from less privileged backgrounds or religious minority groups.
Some challenges faced by women lawyers and judges, however, are more specific to the legal profession, many of which hamper women’s equal participation in the law not just in Pakistan but globally.
First, there are no clear criteria on the basis of which the Judicial Commission nominates candidates for positions in the high court and Supreme Court. In the larger context of sexism in the legal profession, such lack of transparency often works to the detriment of women.
Second, sexual and other forms of harassment continue to be pervasive in the legal profession. The judiciary and the Bar are largely unaccountable institutions and complaints of sexual harassment and other misconduct against lawyers and judges are rarely investigated.
And third, because of the traditional notion of the law as a ‘male’ profession, there is lack of will, even resentment, towards making any kind of accommodation for women lawyers and judges, from separate toilets in courtrooms, to maternity leave and childcare.
Article 25 of the Constitution provides that there shall be no discrimination on the basis of sex. The UN Convention on the Elimination of Discrimination against Women, which Pakistan acceded to in 1996, obligates states to take measures to ensure women’s full participation in public life.
Beyond Cedaw, the Beijing Declaration and Platform for Action, adopted in 1995 at the Fourth World Conference on Women and endorsed by Pakistan, outlines that states must “ensure that women have the same right as men to be judges, advocates or other officers of the court” and “commit themselves to establishing the goal of gender balance ... in the judiciary, including, inter alia, setting specific targets and implementing measures to substantially increase the number of women with a view to achieving equal representation of women and men, if necessary through positive action”.
As Prime Minister Nawaz Sharif finalises his government’s National Women’s Empowerment Policy, it is time the under-representation of women in the legal profession and judiciary is given due recognition, and steps are taken as a matter of urgency to remove discriminatory barriers keeping women from positions of leadership in the legal field.
The writer is a legal adviser for the International Commission of Jurists.
Twitter: reema_omer
Published in Dawn, March 15th, 2016
