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Gender and judging in Pakistan

By: Zainab Zeeshan Malik

Last week, the National Assembly of Pakistan considered a bill seeking to introduce a quota for the appointment of women judges in the Islamabad High Court.
Introduced by Nikhat Shakeel Khan of the Muttahida Qaumi Movement (MQM), the “Islamabad High Court Act (Amendment) Bill, 2016” proposed an amendment to the Islamabad High Court Act by fixing a proportion of the seats of the High Court as reserved exclusively for women judges.
The Bill drew resounding criticism from the National Assembly Standing Committee on Law and Justice and was accordingly dismissed.
The dismissal was expected as it followed the rejection of a proposal seeking quotas of at least 25 percent of the total number of judges in the Supreme Court of Pakistan for women judges earlier this year.
On both occasions, law makers decried the potential of quotas for women in the judiciary to adversely impact the quality of adjudication.
The Assembly’s reluctance to the appointment of more women in the superior judiciary is surprising especially since the same institution has had quite a successful experience with quotas for women parliamentarians.
What’s even more appalling is that a significant proportion of the opposition came from women parliamentarians, many of whom have benefited from quotas in their current appointments.

Does the nature of the judicial profession preclude the inclusion of women? Do women ‘judge’ in a way that makes them unsuitable to uphold the impartiality and objectivity befitting a justice of the Supreme Court? A cursory look at the state of the gender imbalance in the Judiciary in Pakistan would make one respond in the affirmative.
Pakistan is the only country in South Asia to have never appointed a woman to the Supreme Court.
Only 7 out of Pakistan’s 112 High Court Judges are women – 3 in Lahore High Court, 2 in Peshawar High Court, and 1 in each Balochistan and Sindh High Court.
There is no women judge in Islamabad High Court.
A list of 16 judicial nominees circulated by the Lahore High Court in the second week of October contained no women.
The dismal number of women in the superior judiciary is even more striking when it is compared with other governance institutions such as the civil service and parliament where the proportion of women exceeds 20 percent of the total.
Even in the lower judiciary, women judges constitute a significant cohort with the numbers increasing with every year.

The dearth of women in the superior judiciary can be explained in part by the dearth of prominent female litigators in Pakistan’s legal profession.
Currently 3 out of 4 law students in Pakistan are women.
However, courts are inundated by male lawyers.
A majority of the women that study law choose to enter corporate professions or focus on legal research which is thereafter presented by their male colleagues before judges.
Starting from the first day of law school, women are reminded again and again that courts are no place for women.
The few who still dare to pursue litigation have to face harassment and discrimination by male colleagues, superiors and by litigants.
Given the poor quality of the legal curriculum in Pakistan, apprentice lawyers are completely at the mercy of their superiors for their legal training.
This privilege is exploited shamelessly – lawyers work an average of 4-5 years without any remuneration.
Gender stereotypes prevent women from advancing in such an environment.
Law firms are less willing to invest in women owing to the bias that they will get married and leave.
Additionally, clients tend to take women lawyers less seriously and as a result so do their male colleagues.
Therefore, women make less money, are given no exposure to court work and/or clients and delegated to spend their entire careers as legal researchers.
Additionally, sexual harassment by senior lawyers is a sad reality of the legal profession.
However, given the vulnerable position of women lawyers and lack of institutional structures for addressing such complaints, there is little surprise that victims end up foregoing their professional aspirations.

Thus, it comes as no surprise that there is a dearth of prominent women litigators.
This inevitably translates to a lack of judicial appointments.
While women can enter the lower judiciary through competitive examinations – admission into the superior judiciary is entirely through appointment by existing judges who are primarily men.
A vicious cycle gender imbalance in the judiciary perpetuates itself over and over again.

Will quotas for women serve as an antidote for the imbalance in the judiciary? The presence of female judges in the superior judiciary serve as a model for aspiration for female law students.
Additionally, more women judges in the courts will contribute to an environment that is conducive to the needs of women lawyers.
At the very least, the presence of women judges will dispel the predominant stereotype that women cannot exercise the impartiality and objectivity necessary for effective adjudication.
On a deeper level, the presence of women will expose the bias and sexism inherent in decisions of the current judiciary on issues such as honour killing, khula, forced marriage and rape.
However, until and unless the legal profession undergoes significant gender-sensitive reform, the only way to fulfil these objectives is through reserved seats in the form of quotas at all levels of the judiciary.

The Nation

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