JUSTICE Ashraf Jahan made history as she took oath as the first female judge to be appointed to Pakistan’s Federal Shariat Court.
Whilst she appears to have remained silent on the momentous occasion, the remarks of the FSC chief justice have been widely quoted in the press: “I took the initiative,” he is reported to have said, “as it would send the message in the world that we are enlightened people and would dispel many misconceptions.”
Laudable as the sentiments of the FSC chief justice may be, they raise two related questions: first, is the appointment of the first woman judge of the FSC capable of being anything more than an exercise in judicial image-building, and second, is the move likely to convey a message of Pakistan’s enlightenment to a broader audience?
The implications of this appointment may be understood more fully by examining not only the history and mandate of the FSC but also its place in Pakistan’s judicial system. Gen Ziaul Haq established the FSC in 1980 as part of his Islamisation drive.
However, despite the propaganda surrounding its birth, the FSC has remained marginal to the country’s mainstream legal system primarily due to its limited mandate: the FSC may only determine whether or not a law conforms to the injunctions of Islam, or review decisions of lower courts in respect of Hudood matters. It may not hear any appeals.
Whilst litigants may file petitions before it in matters related to conformity of a law with Islam, only the FSC itself may take notice of decisions in respect of Hudood cases. Further, all decisions of the FSC are appealable to the Supreme Court, which may either affirm or reject them.
The mandate of the FSC shrinks further due to the attendant difficulty likely to be faced by potential litigants, of pressing Islamic law into legal argument, the absence of specialist lawyers in this field and the fear of adding yet another layer of litigation to their cases unless they are either passionate about Islam or, which is more likely, merely seeking to stall a matter.
Whilst the FSC itself has the power to take notice of matters within its purview, its ability to actually do so is circumscribed by its resources, gumption and perhaps an unspoken judicial policy.
Given the somewhat adjunct and certainly subordinate status of the FSC vis-à-vis Pakistan’s mainstream judicial system, it may be argued that a judge of the FSC, whether male or female, may not be in a position to play a direct or meaningful role in developing the country’s jurisprudence.
There is, however, an important, alternate point of view: it is increasingly believed in circles responsible for making judicial appointments, that gender balance and diversity on the bench bring perspective to the judicial decision-making process.
It is argued that the thinking of a person is conditioned by his place in society (which is, in large part, determined by race, ethnicity and gender), upbringing and education and, therefore, judges drawn from a relatively homogenous group are likely to have a similar ideology and thought process.
Given that judges in Pakistan are both male and privileged, the presence of a woman on the bench is likely to add a fresh dimension to their deliberations.
Does this simply mean that a female judge will champion the cause of women? Perhaps not. Because gender sensitivity does not necessarily flow from one’s gender but is a function of a general attitude.
It is widely acknowledged that women, as men, can be each other’s harshest critics and even worst enemies. Further, male judges have amply demonstrated time and again, that men are entirely capable of recognising and treating women as human beings at par with men.
A most recent example is that of Justice Asif Saeed Khan Khosa, who in his judgement in ‘Ali Muhammad v. The State’ not only directed the release from Darul Aman of a woman who had been sent there by the Lahore High Court and allowed her to return to her father, but also reprimanded the judge below for his decision.
The appointment, however, does mean that if indeed the judge in question is a woman of substance as she is believed to be, and is able to make her voice heard in a space traditionally occupied and dominated by men, she will succeed in injecting an alternate point of view in any matter under her consideration and for any litigant, whether male or female.
The fresh perspective afforded by her presence will encourage a more holistic examination of a case and, therefore, ultimately a more judicious outcome. And it is in the enhanced quality of its decisions that Pakistan will appear more enlightened to the international audience rather than by a mere inventory of the gender of its judicial appointees.