By Harihar Swarup
Just over two years ago, the Chief Justice of Pakistan, Asif Saeed Khosa told a press conference of women judges that they should not conduct themselves in court like their male counterparts. At that time, Pakistan had five women judges across its five High Courts.
In widely reported remarks, he said, women judges were expected to be “compassionate”, “kind, like mothers”. But, he said, “when they become judges”, somehow because the whole atmosphere is male-dominated …. A ‘she judge’ also like to behave like a ‘he judge’…Male judges cracked jokes with lawyers, khosa added, but women judges “ somehow have to change their personality. She has to become an iron lady so that nobody messes with her.”
In the audience that day was Justice Ayesha Malik of the Lahore High Court, one of the organizers of the conference. On January 24, the 55-year-old Malik, a graduate of Punjab Law College and Harvard Law School, was sworn-in as a justice of Pakistan Supreme Court, becoming first-ever woman judge. Her appointment was particularly notable as, much like parts of India, Pakistan is steeped in Patriarchy, with violence against women common place.
Through the decades Pakistani women have fought back, using every crack in the system to raise their voice, even during Zia military dictatorship when the Hudood laws made it virtually impossible for the rape victims to get justice. Thanks largely to women activists, recent years have seen several big reforms. Two years ago, after a woman was raped by two men in front of her children outside Lahore, Pakistan parliament approved new law, a tough anti-rape law.
But recent access to justice for woman remains poor, especially in sexual assault crimes, for which victim shaming is the default response. None other than Prime Minister Imran Khan said recently that it was “common sense” that “a woman wearing few cloths…. will have an impact on the man.” The elevation of Justice Malik comes against this backdrop
“PM Imran Khan has greatly exacerbated the dismal situation of gender-based violence by his statements. Let us hope Justice Ayesha Malik’s judgments will help to rectify the imbalance to some degree”, says Tahira Abdullah, a leading right activist and a member of women’s Action Forum of Pakistan.
In her most famous judgment, Malik had ruled against the controversial ‘two finger’ virginity test for rape victims. In the Sadaf Aziz vs The Federation case, she ruled that ‘virginity’ could not be determining factor in rape, and that there was no scientific or legal basis for hymen test.
Quoting from the Supreme Court of India’s ruling in Rajesh vs State of Haryana, as well as other judgments in Gujarat and Allahabad High courts, Malik said: “ The virginity test by its very nature is invasive and infringement on the privacy of a woman to her body… the conclusion drawn from these tests about a woman’s sexual history and character…. leads to adverse effects on the social and cultural standing of victims,” Malik ruled. What it does is place the victim on trial in place of accused….. even the most promiscuous victim does not deserve to be raped.”
A mother of three, Justice Malik has her own take on the struggles of being what Khosa called a “she judge” among “he judges” including finding the right to work-life balance. In an UN interview, she recalls that in 2012 when she was appointed to the Lahore High Court, she was only woman judge, and everything, from gender sensitive language to bathrooms, was a challenge, including pointing out to fellow justices that their reference to each other as “brother judges” excluded her.
In UN interview, Malik says her way of creating her “space” was to “say less, do more”. She was never missed a single parent-teacher meeting at her children’s school, but has not taken time off work. Malik says she is clear to her male colleagues that her responsibilities at home are different from theirs, as well as what work she is willing to do, and what she cannot.
For instance, as a Lahore High Court judge, she made it plain that she would not travel to other benches of the Punjab High Court, as she was “ a hand-on-mother”, and the “central figure of her home, and did not want to be in an “all-male living environment” for any length of time. But, she says, “I do more and show them that I can do it”. (IPA Service)