Why is there no woman on our Supreme Court?

I have already made my case for why there should be a woman on the Supreme Court of Pakistan (The News, September 25, 2015). Why, with two vacancies that need to be filled, now is a good time to appoint one; maybe two. How there are enough qualified women to choose from. And, above all, why doing so is not a matter of so-called ‘political correctness’; it is a matter of judicial correctness. That doing so will make this court, a better court; its justice, better justice.
There is little to add to that case. The pity is only that it had to be made in the first place. That the obvious injustice of it all has so long eluded even those whose very job is to reign ‘supreme’ over collective sense of justice.
The Judicial Commission of Pakistan (JCP) – which the constitution entrusts with recommending names for our superior courts, and which former chief justice Iftikhar Chaudhry made so powerful that all above it must now act as its rubber stamps – is supposed to meet “any day” to discuss and decide on the two who will be invited to join the Supreme Court bench (actually, rather plush high-back chairs).
Word has it that the new Chief Justice, Anwar Zaheer Jamali, has summoned the JCP to convene on October 10. But, also, that it could be convened summarily anytime before that! Word also has it that the chief justice has already decided who he wants to join his ‘brothers’ on the bench (names of two justices from Lahore are in circulation). But, also, that he or the JCP could well change their mind between now and then; especially then.
In short, there is uncertainty.
That is good. It means that, even though unlikely, the JCP could still spring a surprise and nominate the first woman to ever serve on the Supreme Court of Pakistan. Of course, the odds are against it. But, what a delightful surprise it could be.
The real surprise, however, should be about why we don’t already have women serving in our Supreme Court.
The

treacherous naiveté that is borne out of ingrained prejudice will insist that this is not about bigotry, misogyny or discrimination. That there is ‘nothing stopping’ women from making it to the Supreme Court when they are ‘ready’ to do so on ‘merit’. Little do they realise that such an argument is not just facetious, it is insulting. Especially, when you see women doing as well as – and, often, better than – men wherever there is fair intellectual contest.
No. This is not so because there aren’t talented women lawyers and judges in Pakistan. Indeed, my last article in this space was written precisely to point out that there are. This is one more instance of the insidious bias against women – embodied in the absurd idea that women cannot have ‘merit’ – that pervades society and from which even our courts are not immune.

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The story of women justices in Pakistan, and why none has (yet) made it to the Supreme Court, is illustrative.
It took Pakistan 47 years to appoint our first woman to the superior judiciary. But, first we had to elect a female prime minister. We then had to wait for her second term for her to muster enough political capital to be able to do so. All this, still in the days when prime ministers could actually appoint justices to the high and supreme courts.
We know that in her first term as prime minister at least one female name was sent to Benazir Bhutto – it was 1989 and the recommendation was to appoint Majida Rizvi to the Sindh High Court. She was not appointed.
By August 1994 Benazir Bhutto was prime minister again. This time with a government less fragile; a social agenda more emboldened. This time she got to name 40 justices in one go. As if to prove that there were enough qualified women who could make ‘merit’, she chose not one, but five: High Court Justices Fakhar-un-Nisa Khokhar and Nasira Iqbal in Lahore, Justices Talat Yaqub and Khalida Rashid Khan for Peshawar, and Justice Majida Rizvi in Sindh.
At least three of them could have made chief justices of their high courts – the clearest path to the Supreme Court. None did.
The first is about more than unfortunate timing. Justice Majida Rizvi was appointed to the Sindh High Court on the same date (June 6, 1994) as Justice Rana Bhagwandas. However, a dispute arose on the question of seniority between them and Justice Nazim Siddiqui that eventually required a Supreme Court judgement. It did not end in her favour. The irony was that had Pakistani society and politics been ready to appoint a woman when she was first recommended in 1989 she would have certainly become chief justice of the Sindh High Court but probably the first woman to serve on the Pakistan Supreme Court. A brilliant mind, Justice Majida Rizvi went on to become the chairperson of the National Commission on the Status of Women and became a strong voice against the Hudood Ordinances.
The second case was more devious. By all accounts Justice Khalida Rasheed Khan is equally brilliant. Appointed while still young, she was on her way to become chief justice of the Peshawar High Court. According to Justice Nasira Iqbal, she was then told to leave the court on a foreign assignment but “realising that she was being sidelined from [becoming chief justice she] protested.” To no avail. That she has eventually risen to high position in the international judiciary – now president of the International Criminal Tribunal for Rwanda – is a matter of pride for Pakistan. But that pride could have been home-grown had she become high court chief justice and/or justice of the Supreme Court.
The third instance is outright discriminatory. No one disputes that Justice Fakhar-un-Nisa Khokhar was the senior judge on the Lahore High Court when CJ Falak Sher retired in 2001. The same tactic was applied: she was nominated without her consent to the Environmental Tribunal. She refused to leave and the matter went up to the chief justice of the Supreme Court. She stayed, but was not made chief justice, nor elevated to the Supreme Court. She now serves as a PPP MNA.
Here is a generation of women jurists that clearly could have – and should have – moved to the Supreme Court. It is certainly not ‘merit’ that kept them from doing so. Insidious bias. Ingrained prejudice. Maybe even some bigotry, misogyny and discrimination.

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In the next few days the JCP will meet again. They will consider nominations for the two vacant positions in the Supreme Court. One hopes that they will also consider at least a few women. It would be difficult, for example, for them not to at least consider Justice Syeda Tahira Safdar of the Balochistan High Court. Appointed in 2009 and now the Senior Pusine Judge, she cannot be faulted for ‘merit’.
This will not be the first JCP to face the following choice. It can make judicial history by nominating the first female Supreme Court Justice. Or, it can perpetuate a historical injustice. One wishes the JCP well. One wishes them the courage to do the obviously righteous thing.

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).
Twitter: @adilnajam