Pakistan, until recently (January 2021 to be more precise), required rape victims to undergo an invasive two-finger "virginity" test to determine a woman's sexual activity, notwithstanding the fact that this test has no medical merit and has been discredited by the World Health Organisation (WHO). This archaic practice, a remnant of British colonial rule, was abolished in a recent Lahore High Court judgment. Incidentally, this judgment was penned by a female judge: Justice Ayesha Malik.
Having a more diverse, representative judiciary has been recognised worldwide to have countless benefits. Apart from sensitizing the Bench to the issues faced by one half of the population and including a much-needed gendered perspective on legal questions, female judges would best be able to appreciate the plight of Pakistani women and the antagonistic attitudes they face in homes, workplaces and society at large. The abolition of the two-finger test is only one such example.
The Pakistani judiciary is structured into a division of the superior courts and the lower courts, with the superior courts comprising of the Supreme Court, the High Courts (Lahore, Sindh, Peshawar, Baluchistan, Islamabad) and the Federal Shariat Court (whose aim lies in reviewing the compliance of the country's law with Sharia principles); and the lower courts comprising of the District Courts and Session Courts. While it is conceded that there is some representation of women in the lower courts (roughly 17% of the judges in the lower courts are women), female judges are a rarity in the superior courts: a mere 5 of the 114 judges of the High Courts are women and no woman has ever been appointed a Supreme Court Justice. This is significant because of the vast differences in the roles of the judges of the Divisional Courts and High Courts: unlike the superior courts, the District Court judgments are not published, their decisions can be appealed to the High Courts and they simply apply the law that has already been interpreted by the High Courts and the Supreme Court and do not create new precedents.
It is for this reason that it was a breath of fresh air for many when Justice Ayesha Malik was recommended to be appointed as a Justice of the Pakistani Supreme Court by the incumbent Chief Justice of the Supreme Court. However, before she could be formally appointed by the Judicial Commission of Pakistan, her nomination was strongly resisted by the Bar Councils (which are incidentally heavily male dominated) with the argument being put forth that her appointment would disregard the 'seniority' principle, since she would be bypassing four other High Court judges senior to her. This is a very weak argument, notwithstanding the fact that the 'seniority principle' is not an established principle and has in fact been overlooked in the past to elevate High Court judges to the Supreme Court despite the presence of more senior judges who have been superseded. In fact, despite being the Lahore High Court’s senior-most judge, Justice Fakhar-un-Nissa Khokar – a female judge, was overlooked in 2002. Had this obstruction not occurred, she would have become a Chief Justice of the Lahore High Court and eventually Pakistan's first female Supreme Court Justice.
Subsequently, an "All-Pakistan-Lawyers'-Convention" was convened to debate judicial appointment reforms. However, ironically the Convention did not have a single female lawyer present, despite the heavy mainstream discourse on increasing gender inclusivity and amplifying female voices. This leads one to believe that despite the seemingly objective criteria of judicial appointments, women's voices have been excluded from law-making with the effect that laws have been made by male legislators, interpreted by and for male judges, and analysed by male academics and jurists.
One solution to include women's voices in law-making would perhaps be stipulating minimum quotas for female judges in the senior judiciary; for example, Article 25(3) of the Pakistani Constitution prescribes making special provisions for protection of women and children. However, in light of such brazen resistance to the appointment of female judges even on merit, one can't help but exclude any potential affirmative action programmes as a solution, since it is likely that these would be similarly strongly opposed by the Pakistani legal fraternity.
When women's voices have been deliberately excluded in meta-narratives surrounding law, there is a need to look for innovative solutions. An example is the Feminist Judgments Project, running in various countries such as Canada, United Kingdom, United States, Australia, and India to name a few, which aims to rewrite pivotal judgments through a feminist lens so as to shed light on how the law has developed from a male lens and how it would have been had the Court taken on a feminist view. A similar Pakistani Feminist Judgments Project has been taken up with an aim to rewrite judgments of the Supreme Court of Pakistan on cases with themes ranging from constitutional law, criminal law, corporate law, property law to health law, tax law, labor law, family law, environmental law and animal rights law.