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EARLIER this month, the National Assembly Standing Committee on Law and Justice rejected a bill proposing reserved seats for women judges at the Islamabad High Court. Whilst some members of the Committee argued that all appointments should be made strictly on merit; others believed that reserving special seats for women judges would promote nepotism, while others still were of the view that competent women do not need any quota to prove their proficiency!
Whilst it may be tempting to dismiss the standing committee’s decision as political or even ‘anti-feminist’, a review of the press transcript of the meeting suggests that it may have been motivated by the committee’s view that legal justice is purely objective and that in performing the role of a judge a person acts only in accordance with his intellect. The committee also seems to have believed that since there was nothing barring the appointment of female judges, there was no need or justification for affirmative action.
The committee’s view is correct in theory. At its best, legal justice is indeed impartial and the most competent judges are able to transcend their individual biases and evaluate facts purely in accordance with the law. Further, subcontinental women have had access to the legal profession for more than 100 years. Cornelia Sorabji, India’s first woman lawyer, had entered the profession in 1894 and access to all women was guaranteed in 1923 with the enactment of The Legal Practitioners (Women) Act, which expressly stipulated that women could not be disqualified on the basis of gender alone.
Only 5.8pc of all judges in the country are women.
This recognition of women’s right to enter the legal profession survived in both India and Pakistan. Presently, neither the Indian Advocates Act 1961 nor the Pakistani Legal Practitioners and Bar Councils Act 1973, discriminates on the basis of gender. Similarly, with regard to judicial appointments, Article 217 of the Indian constitution and Article 193 of the Pakistani Constitution, allows any citizen, regardless of gender, who meets the relevant constitutional criteria and is considered fit by the country’s judicial commission, to be considered for appointment as a judge of the high court.
However, despite its theoretical accuracy, the committee’s decision falls short in two important respects: it fails to consider reasons for which appointment of women may be desirable and, therefore, needs to be encouraged. And in citing the example of only two women — Asma Jahangir and Nasira Iqbal — it trivialises the struggles of the majority of women lawyers who are barely able to survive in a very demanding, male-dominated profession, let alone to aspire to judicial appointment.
Perhaps the committee would have benefited from examining a statement released by the Human Rights Commission earlier this year, which states that only 5.8 per cent of all judges in the country are women; the high courts combined have only seven women judges and the Supreme Court has never had a female judge. Or from reviewing a report of the International Commission of Jurists, which notes that the Pakistan Bar Council has never had women members and Asma Jahangir is the only woman who has been the president of any bar association.
The committee may also have profited from examining the situation in India, which, despite an almost identical legal infrastructure, has successfully appointed women judges at all tiers of the judiciary, as chief justices of state high courts (Justice Manjula Chellur was appointed as the second female chief justice of the Bombay High Court in August this year) and justices of the Supreme Court. Or from looking at Nepal, Bangladesh and Sri Lanka where women have risen to positions of power as lawyers and have been appointed as judges in the highest courts.
It is entirely valid to ask that if legal justice is indeed objective then why is gender diversity important? This question may be answered with reference to a 2009 report on Understanding Judicial Diversity published by University College London which states that diversity increases the appearance of fairness because the public as well as those appearing in courts are more likely to perceive a representative judiciary as being more in touch with society. It also increases actual fairness because a diverse judiciary is more likely to consider a wider range of views in the decision-making process.
However, whilst diversity is desirable, stipulating quotas for it is not the answer. Not only are quotas likely to create a sense of entitlement and complacency amongst women they are also likely to give rise to a presumption in the minds of the public, the litigants and indeed fellow judges that women judges are not otherwise qualified for the job. Quotas are also likely to detract from judicial excellence by pandering to the mistaken view that simply having more women on the bench, rather than effective judicial training, ensures a higher degree and quality of justice.
Several jurisdictions have adopted measures to balance merit and diversity by including diversity in a consideration of merit for judicial appointments. In Canada, the Ontario Judicial Appointments Advisory Commission evaluates candidates on the basis of professional excellence, community awareness, personal characteristics and demographics and maintains that the “… Judiciary … should be reasonably representative of the population it serves. This requires overcoming the underrepresentation in the judicial complement of women, visible, cultural, and racial minorities and persons with a disability.”
Perhaps the most damaging sub-text of the committee’s decision is, that there are not more women judges because there are not enough competent women lawyers in the country. Not only is this insulting to women lawyers in Pakistan, but also smacks of an unpardonable lack of awareness of the conditions in which women lawyers are forced to work throughout the country. I concede, however, that women lawyers must share the responsibility for this perception. It is only when they raise their voices as well as their quality that judicial appointments will be conferred upon them as a right and an honour rather than as charity.
The writer is a barrister and an advocate of the Supreme Court of Pakistan.
Published in Dawn November 15th, 2016
