A forum representing women lawyers in Pakistan has termed the Pakistan People's Party (PPP) proposal regarding the 26th constitutional amendment as being against women's representation in the judiciary.
The Women in Law Initiative Pakistan (WILIP) - a non-registered, non-partisan collective of female lawyers that works to provide equal opportunity and visibility to women lawyers in Pakistan - has further opposed the overarching idea of establishing Federal Constitutional Court (FCC) and the Provincial Constitutional Courts (PCCs), as proposed by the PPP.
"Women's representation in these courts, which will be handling questions of fundamental rights, and the commissions appointing them is at a serious risk due to the eligibility being linked to enrollment as Advocates of the Supreme Court (ASC) without understanding how the process of acquiring the license as an ASC is discriminatory, arbitrary and rigged against women to begin with," stated a press statement issued by the forum.
Without addressing those imbalances, WILIP said, linking enrolment as ASC with eligibility for these positions in this new draft puts 96% of women at risk of being technically excluded from appointments.
"The proposed amendments are, therefore, anti-woman's representation as judges and as members of the commission appointing these judges."
It further stated that the multiplicity of forums will add to the overall cost on the exchequer in the shape of salaries, perks and pensions. "A parallel system is being implemented to address the backlog without any data-driven or evidenced-based studies to suggest that setting up parallel structures with an added cost to the exchequer will yield the intended benefits to the public at large in terms of an efficient court system for all."
"By not addressing the documented causes of backlog (lawyers' strikes, existing vacancies in courts, culture of adjournment, frivolous litigation, outdated procedural laws, poor case management and lack of proper training, infrastructure and resources), the assertion that FCC and PCC would make the justice sector efficient is a red herring."
The forum also expressed concerns over the lack of appointments on existing vacancies in high courts. Instead of filling them, new, parallel structures are being created. "In fact, there is a real risk that there will be an increase in jurisdictional disputes between the existing and the new parallel structures."
"In conclusion, the PPP draft does not alter the basic premise and implications of the original 26th amendment draft, and it attempts to gloss over or remains silent on some of the key questions related to appointments of the first judges of the proposed new parallel structure whilst adding elements with long-term adverse impacts for the federation and rights of people as whole as well as on fair representation of women in the justice sector."
Recommendations
The forum recommended that the idea of an FCC and a PCC should be disbanded. "There is not a single reasonable justification presented for why such wholesale amendments are needed in our judicial structure."
They added that the PPP draft is inconsistent with Pakistan's common law system, and it is transplanting ideas from other countries without considering how these concepts are entirely unworkable within our jurisdiction.
"If, at all, an FCC has to be established, then an open and independent process to appoint its first chief and other judges of the FCC (and PCC). For instance, senior-most judges from each province in the present Supreme Court could be declared to be the first judges of the FCC with the most senior amongst them as its chief justice."
On improving women's representation, the forum advocated that it could expressly be ensured by appointing a senior female judge of the Supreme Court to the FCC among the set of first judges of the proposed new court to avoid the perception of bias, cherry-picking and political interference.
"The requirement to be an Advocate Supreme Court for eligibility to be appointed as a judge of the FCC and PCC be removed forthwith," they argued, adding, "Eligibility for being appointed as a judge should be extended and opened to people from academia to ensure a greater pool of female candidates for consideration for appointments."
"Provision to ensure fair representation of women in CCP must be expressly provided in furtherance of Articles 25 and 34 of the Constitution of Pakistan 1973."