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Time for a woman on the Supreme Court

The writer is the inaugural dean of the Pardee School of Global Studies at Boston Univeristy and former vice chancellor of the Lahore University of Management Sciences (LUMS).

One hundred and thirty-seven men have served as the justices of the Supreme Court of Pakistan. Depending on whether you want to count those whose appointments have been later annulled, that number may be less. But that is not the point. The point is that each and every one of them has been a man.

It is time to change that fact. It is time to appoint a woman to the Supreme Court. It is well past time.

With the recent retirements of chief justices Nasir-ul-Mulk and Jawwad Khawaja the Supreme Court has two vacancies. In the next some days the Judicial Commission of Pakistan will meet to nominate two names to send to the Parliamentary Committee, and from there onwards to the prime minister and president.

Word has it that names are already being discussed in the small but elevated circles of Islamabad that influence such decisions. Word also has it that at least a few of those names are deemed ‘unconventional.’ That would be fine if ‘unconventional’ means that at least one will be the name of a woman. It is time to appoint the first female justice of the Supreme Court of Pakistan. It is well past time.

One should really not have to insult the intelligence of one’s reader by actually needing to make a case for why having female judges at all levels of the judiciary – especially, at the Supreme Court – is important. It should be self-evident. Equality of opportunity should be reason enough. Unfortunately, to too many, it is not. If it were, we would not have entered the 69th year of our existence without ever having had a single female Justice at the Supreme Court.

But that is where we are. So, here goes.

Women in the judiciary matter because representation matters. If there is a logic that the various provinces of the country should be represented in the Supreme Court – and, even if this is not a constitutional provision, there is very clearly such a logic in the composition of the court; and very rightly so – then how illogical is it to not have even a single justice who represents the lives, the sensibilities, and the impacts of the law on more than half of our population? The half that is clearly more vulnerable, more disenfranchised, more marginalised, and all too often more unjustly penalised.

If it is wrong to not have some representation of those who can reflect the concerns of smaller provinces – and, yes, that would be wrong; very wrong – then how can it be right to have no representation whatsoever, no reflection whatsoever, no consideration whatsoever, of a group that is larger than even the largest of our provinces. A group (women) whose live struggles are often un-understood, whose concerns are often ignored, and whose fate is often decided by laws that they had no say in and judges who are distant from their realities.

All too often and in all too many spheres, women in Pakistan have very little say in what happens to them, by whom, how, or why. But nowhere do they have less of a say than in the Supreme Court of Pakistan. This, I submit to those who sit in the Judicial Commission of Pakistan, is not just a sad irony. This is injustice.

Indeed, by being so unrepresentative of such a large set of Pakistanis, the Supreme Court of Pakistan has made itself that much less legitimate. No. Lest I be accused of a contempt I am not committing, let it be clear that to be ‘less legitimate’ is not to be ‘illegitimate’. It is merely to point out that the court will be so much more legitimate if, indeed, there were women on the Supreme Court. It is time to make that happen. It is well past time.

There are a host of reasons why it is time to appoint a female justice to the Supreme Court. Some are petty reasons of vanity. For example, to show that we can do what Afghanistan tried but failed to do just two months ago when Afghan President Ashraf Ghani’s nominee, Anila Rassouli, was denied a place on their Supreme Court by his parliament. There are better reasons of antecedent: India appointed their first woman to their Supreme Court back in 1989 – Justice M Fatimah Beevi, a Muslim. In Egypt, Justice Tahani Al-Gebali was elevated to the Supreme Constitutional Court in 2003. In Bangladesh, Justice Nazmun Ara Sultana has served on their Supreme Court’s Appellate bench since 2011. More important are lessons from the US, from Europe and from Latin America of how truly transformative women on Supreme Courts can be.

However, the single most compelling reason why now is the time to appoint a woman to the Supreme Court is because we should. The second most compelling reason is because we can. Here’s how.

According to the constitution, there are two conditions to be eligible to be a justice of the Supreme Court: (a) five years of experience as a judge of a high court, or (b) 15 years experience as a high court advocate. The point to recognise is that Pakistan does have talented, qualified, and appropriately experienced women who would make good Justices. Some very prominent ones amongst practicing advocates, but also within the high courts.

Currently, all the four provincial high courts have serving women judges, although the Islamabad High Court does not. Most, however, are relatively new. For example, Justice Irshad Qaiser (2012) and Justice Musarrat Hilali (2013) of the Peshawar High Court; or Justice Ayesha Malik (2012), Justice Aalia Neelum (2013), and Justice Erum Sajjad Gull (2015) of the Punjab High Court.

A very interesting case is that of Justice Ashraf Jehan of the Sindh High Court who in 2013 become the first woman justice to be appointed to the Federal Shariat Court. She also happens to be the wife of our new Chief Justice Anwar Zaheer Jamali. Maybe she can make the case to him of why we need a woman on the Supreme Court!

Another interesting non-candidate might have been Justice Khalida Rashid. For many years, a judge of the Peshawar High Court and since 2011 the president of the International Tribunal for Rawanda. However, she recently turned 66 and no longer meets the age criteria.

At least one strong candidate is apparent: Justice Syeda Tahira Safdar of the Balochistan High Court. Appointed in 2009 and now the Senior Pusine Judge of the court she has more than the requisite experience. But, first, someone has to start looking. And seriously. That someone has to be the Judicial Commission of Pakistan which has the primary responsibility to identify qualified appointees.

The commission’s recommendation is sent to a parliamentary committee and from there goes to the prime minister and then to the president for approval. The process is clearly and heavily in the hands of the Judicial Commission of Pakistan, and is clearly meant to minimise political interference. However, there are three layers of political voice involved. It would be entirely fair and very appropriate for these political actors to express a policy preference on the basis of gender equality and opportunity.

Indeed, here would be a rare opportunity to show non-partisan support for a clearly good cause. They must do so before the Judicial Commission makes its choice. Even if they don’t, the rest of us should.

Twitter: @adilnajam

Dr Adil Najam, "Time for a woman on the Supreme Court," The News. 2015-09-25.
Keywords: Law and Humanities , Law making , National law , Humanitarian law , Constitutional law , Education-Judges , Supreme court , Nasir-ul-Mulk , Jawwad Khawaja , Anila Rassouli , Tahani Al-Gebali , Pakistan , 2012