Despite the absence of any rules preventing the appointment of women judges in the Supreme Court, Pakistan was the only country in South Asia to have never appointed a woman as a Supreme Court judge. This was before the recent nomination of Justice Ayesha A. Malik by the Judicial Commission of Pakistan. Article 25 of the Constitution states, “all citizens are equal before the law…that there shall be no discrimination on the basis of sex.” Pakistan has also signed various international instruments to promote gender equality. The nomination of Justice Ayesha A. Malik for the SC helps in the compliance of constitutional and international law obligations of Pakistan.
Article 7 of the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that “state parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.”
Further, Pakistan is a signatory to the International Conference on Population and Development in Cairo, 1994, and the UN Conference on Women in Beijing, 1995. Pakistan has also signed the UN’s Sustainable Development Goals, which set out gender equality as one of its main goals.
Nevertheless, according to the World Economic Forum’s Global Gender Gap Report 2021, Pakistan ranks 153 out of 156 countries on gender inequality. Notwithstanding the 18th and the 19th amendment to Pakistan’s constitution, the Judicial Commission of Pakistan and the parliamentary committee for the appointment of judges in the superior judiciary do not provide specific representation to women.
Other countries in South Asia have much better indicators regarding gender equality in the superior judiciary. Sri Widoyati Wiratmo Soekito, for example, became the first Indonesian woman to be elevated to the Supreme Court in 1968. India had its first female judge of the Supreme Court, Fathima Beevi, in 1989. Since then, eight female judges had been elevated to the top court of India of which Justice Indira Banerjee is still serving as a judge of the Supreme Court. Nazmun Ara Sultana was the first female Justice of the Appellate Division of the Supreme Court of Bangladesh in 2011. In 2012, Maria Lourdes Sereno was named the first female chief justice of the Philippines. Sushila Karki was the first female judge to head Nepal’s Supreme Court in 2016. Anisa Rasooli was the first female to sit on the Supreme Court of Afghanistan in 2018.
Then comes Justice Ayesha A. Malik. She was appointed a judge of the Lahore High Court in 2012. She is part of the International Association of Women Judges, an initiative for women empowerment. She is an advocate of the importance of a gendered perspective in upholding the rule of law. She will remain judge of the Supreme Court of Pakistan until March 2031. She is also expected to become the first female Chief Justice of Pakistan. Given Pakistan’s judicial history, thus, it is refreshing to have the first female judge in the Supreme Court who enjoys a fine reputation in the legal fraternity.
Justice Ayesha A. Malik has authored several notable judgments as a judge of the Lahore High Court. For example, in the case titled Orient Power Company (Private) Limited vs Sui Northern Gas Pipelines Limited (2019), Justice Ayesha emphasized the obligations of the contracting states to enforce foreign arbitral awards speedily and ascertained the meaning and scope of the public policy of Pakistan. This judgment is a significant contribution in the context of the increasing international commercial arbitration in Pakistan. It would enhance the sanctity of commercial contracts creating a conducive business environment for both local and foreign investors.
With specific reference to women rights, in the case titled Sadaf Aziz vs The Federation (2021), she held that ‘virginity’ or otherwise of a victim was irrelevant to ascertaining the crime of rape. This judgment declares two-finger hymen tests highly invasive, having no scientific or medical basis, illegal and constitutional. Through such bold and brilliant judgments, Ayesha A. Malik has contributed to making our legal system viable, responsive and capable of addressing issues that have been largely ignored in Pakistan.
To eradicate gender imbalance in Pakistan’s superior judiciary, the nomination of Justice Ayesha A. Malik is a welcome decision. However, there are many challenges for Justice Ayesha. For example, Article 175-A of the Constitution does not ensure due representation of women — both in the Judicial Commission of Pakistan and in the Parliamentary Committee. The number of female judges in the superior judiciary as compared to the population of women is negligible. The environment in the legal profession for women is not conducive. Without constitutional amendments in Article 175-A and government policy (i.e. specific quotas for women judges in the superior judiciary), how can more female judges be appointed in the superior courts? Despite these challenges, however, it can be expected Justice Ayesha A. Malik would succeed in breaking the glass ceiling and reducing the gender gap in Pakistan.
Like Justice Ayesha A. Malik, if other women lawyers are provided representation in the superior judiciary, they will contribute to the progress of Pakistan as decisions of superior courts are binding on all judicial and executive institutions. An inclusive approach in judicial appointments will help to eliminate discrimination against women and protect their rights more effectively.
The writer is an advocate in the Supreme Court of Pakistan.
Article 7 of the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that “state parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.”
Further, Pakistan is a signatory to the International Conference on Population and Development in Cairo, 1994, and the UN Conference on Women in Beijing, 1995. Pakistan has also signed the UN’s Sustainable Development Goals, which set out gender equality as one of its main goals.
Nevertheless, according to the World Economic Forum’s Global Gender Gap Report 2021, Pakistan ranks 153 out of 156 countries on gender inequality. Notwithstanding the 18th and the 19th amendment to Pakistan’s constitution, the Judicial Commission of Pakistan and the parliamentary committee for the appointment of judges in the superior judiciary do not provide specific representation to women.
Other countries in South Asia have much better indicators regarding gender equality in the superior judiciary. Sri Widoyati Wiratmo Soekito, for example, became the first Indonesian woman to be elevated to the Supreme Court in 1968. India had its first female judge of the Supreme Court, Fathima Beevi, in 1989. Since then, eight female judges had been elevated to the top court of India of which Justice Indira Banerjee is still serving as a judge of the Supreme Court. Nazmun Ara Sultana was the first female Justice of the Appellate Division of the Supreme Court of Bangladesh in 2011. In 2012, Maria Lourdes Sereno was named the first female chief justice of the Philippines. Sushila Karki was the first female judge to head Nepal’s Supreme Court in 2016. Anisa Rasooli was the first female to sit on the Supreme Court of Afghanistan in 2018.
Then comes Justice Ayesha A. Malik. She was appointed a judge of the Lahore High Court in 2012. She is part of the International Association of Women Judges, an initiative for women empowerment. She is an advocate of the importance of a gendered perspective in upholding the rule of law. She will remain judge of the Supreme Court of Pakistan until March 2031. She is also expected to become the first female Chief Justice of Pakistan. Given Pakistan’s judicial history, thus, it is refreshing to have the first female judge in the Supreme Court who enjoys a fine reputation in the legal fraternity.
Justice Ayesha A. Malik has authored several notable judgments as a judge of the Lahore High Court. For example, in the case titled Orient Power Company (Private) Limited vs Sui Northern Gas Pipelines Limited (2019), Justice Ayesha emphasized the obligations of the contracting states to enforce foreign arbitral awards speedily and ascertained the meaning and scope of the public policy of Pakistan. This judgment is a significant contribution in the context of the increasing international commercial arbitration in Pakistan. It would enhance the sanctity of commercial contracts creating a conducive business environment for both local and foreign investors.
With specific reference to women rights, in the case titled Sadaf Aziz vs The Federation (2021), she held that ‘virginity’ or otherwise of a victim was irrelevant to ascertaining the crime of rape. This judgment declares two-finger hymen tests highly invasive, having no scientific or medical basis, illegal and constitutional. Through such bold and brilliant judgments, Ayesha A. Malik has contributed to making our legal system viable, responsive and capable of addressing issues that have been largely ignored in Pakistan.
To eradicate gender imbalance in Pakistan’s superior judiciary, the nomination of Justice Ayesha A. Malik is a welcome decision. However, there are many challenges for Justice Ayesha. For example, Article 175-A of the Constitution does not ensure due representation of women — both in the Judicial Commission of Pakistan and in the Parliamentary Committee. The number of female judges in the superior judiciary as compared to the population of women is negligible. The environment in the legal profession for women is not conducive. Without constitutional amendments in Article 175-A and government policy (i.e. specific quotas for women judges in the superior judiciary), how can more female judges be appointed in the superior courts? Despite these challenges, however, it can be expected Justice Ayesha A. Malik would succeed in breaking the glass ceiling and reducing the gender gap in Pakistan.
Like Justice Ayesha A. Malik, if other women lawyers are provided representation in the superior judiciary, they will contribute to the progress of Pakistan as decisions of superior courts are binding on all judicial and executive institutions. An inclusive approach in judicial appointments will help to eliminate discrimination against women and protect their rights more effectively.
The writer is an advocate in the Supreme Court of Pakistan.