A forum representing women lawyers in Pakistan has expressed grave concerns, claiming that women have been excluded from a committee meant to review the Judicial Commission of Pakistan (JCP) Rules 2010.
The forum has simultaneously proposed six suggestions for the committee to consider before finalising a new draft of the rules.
The Women in Law Initiative Pakistan, a non-registered, non-partisan collective of female lawyers that works to provide equal opportunity and visibility to women lawyers in Pakistan, wrote an open letter to the review committee on Monday.
The committee was constituted on December 4, 2023, by the Judicial Commission of Pakistan (JCP) Chairman Chief Justice of Pakistan Qazi Faez Isa, to review the JCP Rules 2010.
"While it is heartening to note that diversity in High Court appointments was considered as an agenda item, we steadfastly maintain that the process of reform must not only incorporate diversity in substance but must also be inclusive and transparent in its composition and procedure. In this regard, we as women lawyers feel unrepresented," the letter stated.
"As equal stakeholders in the legal profession, we feel that our voices and input have been excluded from a process that may set the course for judicial appointments for the next decade and beyond," it added.
"Such a state of affairs is unacceptable and untenable in the context of Articles 25 and 34 of the Constitution of Pakistan—constitutional commands with which the Judicial Commission of Pakistan must comply and ensure that women are included through affirmative action and are enabled to fully participate in national life, including in all decisions that will have an impact on them," it further maintained.
On December 16, the committee met under the co-chairmanship of Justice Mansoor Ali Shah and Justice (retired) Manzoor Ahmed Malik. The committee discussed its mandate to propose such rules of procedure for the commission, which comply with the collegial and inclusive decision-making process enshrined in Article 175-A of the Constitution.
The committee further deliberated on the process of calling nominations and meetings of the commission, the procedure for initiating nominations for the appointment of judges to the Supreme Court, the High Court and the Federal Shariat Court, Representation of Advocates and Judicial Officers in High Court Appointments, Diversity in High Court Appointments, criteria for determining merit, procedure and criteria for confirmation of Additional Judges and establishing a secretariat for the commission.
The committee has also resolved to finalise the draft rules by December 29, 2023.
"We reiterate that judicial appointments are amongst the most important aspects of women’s representation in the justice sector because the jurisprudence that emerges from higher courts and,
in particular, the Supreme Court of Pakistan has the potential to impact women directly in family cases, criminal cases, political cases, fundamental rights and constitutional cases," stated the open letter by Women in Law Initiative Pakistan.
"Given that reforms are a rare opportunity, and with over a decade since the last review of the judicial appointment process, it is crucial that mistakes of the past are not repeated and that this time around, all stakeholders, including women, minorities and marginalised groups are actively involved. Such engagement is necessary to foster a judicial system that is inclusive, transparent, safe and accessible for all."
It urged the committee that gender and diversity should be the underlying lens for all reform measures.
The committee should employ all necessary measures to this end, including but not limited to:
(i) Setting up a Standing Committee on Diversity and Inclusion to support the Secretariat in outreach and training that enables a diverse pool of applicants/candidates to be prepared and available to be considered when suitable vacancies arise and,
(ii) If the nominations model is to continue, then the list of proposed nominees by JCP and/or the Chief Justice(s) must be gender balanced.
"The nominations-based model should be abandoned and replaced by a process of inviting applications against vacancies instead. This would be more democratic and enable the eligible candidates to send their applications for consideration for judicial appointment as opposed to the power vesting in the hands of one or a few individuals in the JCP."
In this regard, the Secretariat of the JCP that is to be established can be empowered to handle the applications and/or vet them technically for completeness before moving them forward for consideration on merit by the JCP members, the letter added, further stating that the Standing Committee on Diversity and Inclusion as proposed above, may also be empowered to support the process of technical vetting.
"Technical requirements like number of judgements, seniority etc. that are anti-women and anti-representation must at all costs be avoided and should NOT be made part of the criteria for appointments of judges in High Court, Supreme Court or the Federal Shariat Court."
"Separate interview lists for women for licenses of Advocate High Court and Advocate Supreme Court must be prepared to expedite their opportunity to advance in the profession that otherwise restricts their access and impedes their progress."
"Enabling infrastructure and women-friendly policies for maternity and child-care must be promoted in the courts, which can include the provision of fully staffed and functional day-care, baby changing facilities, functioning washrooms, the appointment of females as court staff in greater numbers, implementation of sexual harassment policy and the committee to address complaints of sexual harassment in accordance with the 2010 law."
"Affirmative action to ensure the appointment of District and Sessions Judges as judges of the High Court should be considered as well as the appointment as judges of advocates who may not have as much practice in the high courts but who have a volume of practice in trial courts and subordinate courts."
"This can be done via ensuring that a certain percentage of nominations for appointments as judges in the high court must come from subordinate judiciary and those who practice in subordinate courts, if the nominations model is to continue."
Women in Law Initiative Pakistan hoped that due consideration would be given to these proposals and that some of them would be reflected in the final outcome.
The existing process of obtaining licenses for the lower and High Courts is encumbered with bureaucratic complexities, the letter added.
Acquiring a High Court or Supreme Court license, which hinges on (reported) judgments, interviews, and various verification steps such as degree authentication, disproportionately hinders the progress of women and minorities in the legal field.
"Women, often discouraged from active practice and litigation in law firms, confront additional obstacles in a work environment lacking in essential support such as separate washroom facilities, safety and protection from harassment, maternity and child-care policies and infrastructure."
Females are likely to take maternity leave, during which time they cannot be actively accumulating judgements in courts.
As a result, they have fewer judgements (reported or otherwise) that delay their licenses for higher courts.
Licensing also depends on how soon a law degree can be verified and when a candidate is called for an interview.
The call to such interviews is discretionary, with no clear timeline or fixed protocols in place. Interviewees often have to wait for years before being called for an interview, which can further impact or delay their progression and “seniority.”
These arbitrary procedures derail female advancement in the justice sector.
The letter added that the JCP and the committee must be mindful of these challenges so that they are aware of how such technicalities result in gatekeeping women from accessing these positions. It is also crucial to acknowledge that female voices largely remain missing from representative bodies such as the Pakistan Bar Council, Provincial Bar Councils, and Judicial Commission of Pakistan.
"Therefore, a meaningful opportunity to be heard must be extended to women lawyers as key stakeholders in the profession and as representatives of half of Pakistan's population," it said.