Women in Judiciary
Justice with a gender perspective
“A more gender-diverse judiciary will have far-reaching effects on people’s access to justice and the quality of justice.” — Human Rights Commission of Pakistan
Conventions of traditional jurisprudence portray the law as a rational and gender-neutral regulation of human conduct, which is far from reality. Critics argue that such theorizing of law enshrouds the gendered reality of its subjects. This gendered reality of law envisions man to be stout-hearted, rational and objective whereas it envisages woman to be frail, emotional and subjective. For example, common law’s favourite legal fiction is the ‘reasonable man’ or the ‘man on the Clapham Omnibus’. It is a classic example of how law and society are adjudged by male standards. This also signifies that women are expected to adopt the male standard of decision-making and ‘reasonableness’. American Supreme Court Justice Ruth Bader Ginsburg argued that there are no distinctive male or female styles of thinking or writing, endorsing Justice Marie Jeanne Coyne’s views that ‘A wise old man and a wise old woman reach the same conclusion’ – an apt response to the deep-rooted virile expectations of law, the legal system and legal theory.
Studies further indicate that feminist jurisprudence applied by a female judge can speak to substantive and procedural legal issues which had discriminatory implications in the past, particularly in cases relating to equal protection of the law; procedural fairness; employment discrimination; fundamental rights and minority rights. In addition, female judges have the potential to provide a more pronounced and non-traditionalist judicial voice. This becomes even more likely because judges of the apex court are typically involved in the development of jurisprudence through contextual analysis, rather than the simplified application of customary legal principles.
Hence, at present, when women are making their mark in every field of life and in almost every profession, there is a dire need to increase the representation of women in law. This is also in line with UN policy objectives and SDGs 5 (women empowerment) SDGs 16 (promotion of just, peaceful and inclusive societies) and SDGs 17 (partnership for goals). For that purpose, they should be provided with an environment where they could freely express their talents and skills. Currently, women in the profession of law have to face a number of problems.
a. Women as lawyers: The problem is not only with induction but also the retention and promotion of women in the field of law. This is exacerbated by misogynistic attitudes, sexist remarks and attacks on reputation and sexual harassment which go unchecked or fail to get enough support for redress. There are not many female mentors or women in leadership positions to aspire young female professionals to aim and achieve big, rather they get discouraged to invest in the profession which they feel is less rewarding for women.
b. Women as Litigants: The hindrance is not only for litigators but also for female litigants who come across the judicial system which is not gender-sensitive. The judges and prosecutors need to be gender sensitized especially when dealing with cases involving sexual violence. The establishment of GBV (gender-based violence) courts through the approval of the Supreme Court and now carried forward politically by the incumbent government will deal effectively with this issue if these courts have sufficient capacity.
c. Women as Judges: Gender bias exists in judicial appointments as well. The case of Justice Fakhar-un-Nisa Khokhar is a classic example of discrimination. There is a clear Supreme Court judgment stipulating that the senior most judge of the High Court and Supreme Court have the ‘legitimate expectation’ to be appointed as Chief Justice of that respective Court. However, she was not elevated as Chief Justice of the High Court despite being the senior most judge of the court, and Pakistan lost its first opportunity to have a female judge in the Supreme Court. It was only with the elevation of Justice Ayesha A. Malik that Pakistan got its first female judge in the country’s apex court – she was named in the BBC’s list of 100 inspiring and influential women from around the world for 2022.
Integration and visibility are important to help build the narrative which includes the gender perspective. Women in the judiciary bring with them the gender perspective; a different approach, a different thinking process, a different set of emphasis. All judges, male or female decide cases as per the law to uphold the rule of law. In doing so, they may reach the same conclusion on a given set of facts, but for different reasons with different emphases on the relevant facts. This is because they are influenced by their own life experiences, environment and circumstances. This makes the gender perspective relevant because women judges bring a different set of experiences and influences which then shape their thinking and are reflected in their reasoning in the judgments. Bringing different perspectives and diverse reasoning on the bench creates greater public trust and confidence because it is more reflective of the composition of society. It integrates varied social contexts and experiences that need to be included, recognized, and, most importantly, valued.
Another aspect of building on the gender perspective for inclusivity and visibility is the use of gender-neutral language, which is a language that is particularly conscious of gendered words and roles and the depiction of women. The choice of words, or a lack thereof, is integral not just in everyday language, but also in judgments as language can perpetuate a bias. For example, the constant use of the pronoun he can perpetuate the belief around the dominant role of men. Implicit or unconscious gender bias is generally hidden in language and possibly, without any realization, is entrenched in the system by relying on the same assumptions and presumptions, particularly those concerning women. However, while language can perpetuate these stereotypes, it can be equally impactful in bringing about positive and much-needed change, systematic and timely. This is because language impacts the thought process of people and can be the catalyst of change. Therefore, gender-neutral language is necessary for inclusiveness and increased sensitivity. It is also needed because it can positively reinforce a more inclusive and respectful narrative of women and change the imbalance. Ultimately, language is a tool for communicating different perspectives, which makes way for more balanced thinking and more inclusive reasoning. All this is possible when women are well-represented on the bench.
The argument put forth for not having female judges in apex courts is that there aren’t many women in law, certainly not competent ones, and justice cannot be compromised based on affirmative action. But one would wonder whether women as judges are inherently incompetent or if is it the system that systematically excludes women from effective participation in the profession, denying them equal opportunities to hone their skills. Gender is a multi-layered and a structural issue. Gender inclusivity cannot be ensured through cosmetic changes. The entire structure needs an overhauling and the societal perception of women needs to change to accept women as individuals with an agency of their own and as equal creations of God. The establishment of gender-based violence courts and ownership of the cause of gender inclusivity in law by the Ministry of Law and Justice is a step in the right direction. The legal fraternity, prosecutors and judges must be gender-sensitized. The sexist and discriminatory attitudes towards women must be discouraged and men need to assume their responsibility in fighting misogyny to promote a just, peaceful and progressive society. Gender equality is not only a matter of principle but also the need of the time to survive in a globalized and competitive world.
The writer is a PhD scholar (English Literature). He can be reached at email@example.com