his year marks 100 years since women were allowed to practice law. Here we are, celebrating many firsts (and seconds) for women in law. When Justice Ayesha A Malik was appointed as a judge of the Supreme Court in January 2022, it was a huge moment marking the representation of women in the apex judiciary. However, there was looming dread also that this may just be our only such moment for a very long time.

This fear was not unfounded. The pool of candidates from which nominations are made usually comprises sitting judges of the High Courts even though the constitution envisages no such limitations and allows for lawyers to be appointed directly to the Supreme Court. The low ratio of female judges in the High Courts thus limits the chances of their nomination for appointment as a judge of the Supreme Court.

In the recent past, suggestions have also been made to consider only chief justices of the High Courts to be appointed to the apex court. This will further limit the pool of eligible candidates for appointments in the apex court. This would also go against the international trend - such as practices in the UK, the US and South Africa - of widening the pool of eligible candidates to include members of academia as a measure of affirmative action to improve gender parity on the benches.

When Justice Mussarat Hilali took oath as the first woman chief justice of the Peshawar High Court on April 1, it seemed likely that she would retire in August with the same title. However, on June 14, after only about a month and half since her appointment as the chief justice of Peshawar High Court, the Judicial Commission of Pakistan approved her appointment as a judge of the Supreme Court making her the first woman from Khyber Pakhtunkhwa and the second in Pakistan to be appointed to the Supreme Court. This decision also extended her tenure by three years because the age of retirement for a judge of the Supreme Court is 65; whereas, for High Court, it is 62.

Justice Hilali’s appointment did not just secure another woman’s presence in the Supreme Court; it also ensured representation on the bench from KP, which, if the seniority criterion had been strictly adhered to, would not have been possible for at least until the next eight years. In the event of strict application of seniority, the next female to be appointed would be Justice Alia Neelum from the Lahore High Court in 2026.

The next appointment of a female would be quite uncertain as three of the remaining four female judges (who won’t get appointed based on seniority between 2023-2031) presently in the High Court are set to retire by 2024. Only one of them is set to retire in 2038. However, twenty-one male judges will be senior to her, so that going by seniority alone, it is highly unlikely that she would have a realistic chance of being appointed to the Supreme Court.

After only about a month and a half since her appointment as the chief justice of Peshawar High Court, the Judicial Commission of Pakistan approved Justice Mussarat Hilali’s appointment as a judge of the Supreme Court, making her the first woman from KP and the second in Pakistan to be appointed to the Supreme Court.

Seniority being a contested demand as the basis for appointment as a judge to the Supreme Court, the metrics do not present a very encouraging picture as far as fair representation of women or provinces in the apex judiciary is concerned. This is why it is important to pause and reflect on the implications of the proposals advanced in disregard of how they impact women and other marginalised persons in the justice sector who have a right to be represented in decision-making roles in forums determining questions of public importance supported by public funds.

The Judicial Commission will have to take into consideration that women are systemically held back from meeting the technical requirements, in the way the firm culture works. Their progress depends on who goes to make arguments in courts; whose attendance gets marked; whose name as a counsel gets to appear on the judgements that are handed down so that the counsel can meet the technical requirements of showing a list of fifteen cases in which they have appeared to meet eligibility for a licence to practice as advocates of Supreme Court. The interviews for enrolment as advocates of the Supreme Court are also held without a certain schedule or firm time table in a given year.

There is an unwritten rule that a lawyer has to be an advocate of the Supreme Court to be appointed as a judge of the high court. This is, again, not required by the constitution. As a result, women make only four percent of the advocates of the Supreme Court. The process is therefore already rigged against women. When additional non-constitutional conditions like seniority are advocated for, it shows a lack of awareness of how seniority is acquired, to begin with, and how women are systemically denied it to their disadvantage. Too often their labour and contribution to cases is made invisible and not accounted for. Unless this is acknowledged and reforms are made in the process for judicial appointments, Justice Musarrat Hilali’s very welcome appointment may just be it for us. Our looming dread returns.

The responsibility to improve representation in the judiciary lies with those with the power to make the rules. Being public institutions, they are as much bound to apply fundamental rights to their own working, even more so because they are to uphold rights in the context of other institutions. So why not apply provisions of Articles 25(3) and 34 of the constitution that call for affirmative action for full participation of women in national life when it comes to their own functioning?

Before advocating any proposals, the Bar should take into consideration the legitimate demands of women lawyers that call for fair representation in the justice sector, to enhance public confidence in the judiciary and to enrich our jurisprudence from the unique perspectives that women’s lived experiences can bring to the apex court.

The writer is the founder of Women in Law Initiative Pakistan. She tweets @NidaUsmanCh