Women Judges and Women’s Rights in Pakistan

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Women Judges and Women’s Rights in Pakistan
Livia Holden
To cite this version:
Livia Holden. Women Judges and Women’s Rights in Pakistan. Oñati Socio-Legal Series, 2017.
�hal-03853504�

Oñati International Institute for the Sociology of Law
Antigua Universidad s/n - Apdo.28 20560 Oñati - Gipuzkoa – Spain
Tel. (+34) 943 783064 / Fax (+34) 943 783147
E: opo@iisj.es W: http://opo.iisj.net
752
Oñati Socio-legal Series, v. 7, n. 4 (2017) – ‘Too Few Judges?’ Regulating the Number of
Judges in Society
ISSN: 2079-5971
Women Judges and Women’s Rights in Pakistan
LIVIA HOLDEN°
Holden, L., 2017. Women Judges and Women’s Rights in Pakistan. Oñati Socio-legal
Series [online], 7 (4), 752-769. Available from: http://ssrn.com/abstract=3034280
Abstract
Although the first appointment of women judges in Pakistan dates back to 1974,
the significant appointment of “lady judges” in the past decade has caused a jump
in female representation in the judiciary to more than one third in family courts – a
quiet move that sends a message of adherence to the principle of gender equality
as per the international treaties to which Pakistan is signatory. By investigating the
everyday interactions and preoccupations of women judges in their daily
management of justice, this paper explores the socio-legal reception of the human
rights discourse from the perspective of the female judges. The challenge in this
scenario is whether this change will only be formal or whether it will also lead to
substantial and accountable justice. The findings here additionally elucidate how the
global agenda impacts local expectations and conceptualizations of rights within
and beyond the state.
Special thanks go to the the Supreme Court, especially the Honorable Justices Jawad Khawaja, Tassaduq
Jillani, Mian Sakirullah Jehan, and Nasirul-Mulk, as well as the Federal Judicial Academy, especially the
Director General Mr Chawla. Our gratitude also goes to LUMS and to the Babar Ali Foundation for
financial support. Special thanks go to the French ANR program 08 GOU 064 Justice and Governance in
South Asia, which has financed the first leg of this project and provided most of the technical equipment.
However, the true protagonists of this project are the women judges who have enthusiastically taken the
lead on many occasions. We would like to thank in particular the following respected Judges: Jazeela
Aslam, Zaira Mansoor, Phool Bibi, Sarwat Khosa, Sarwat Mumtaz, Fahrat Rana, and Muneera Abbasi.
Many more have participated in this project and their contribution is acknowledged in Lady Judges of
Pakistan, the documentary film released in 2013 (see www.insightsproduction.net). Without the
collaboration of women judges in Pakistan this project would have been impossible.
° Livia Holden (PhD – School of Oriental and African Studies University of London) is Tenured Full
Professor at the University of Padua. Currently, she is Senior Research and Principal Investigator at the
University of Oxford for the European Research Council’s funded project Cultural Expertise in Europe:
What is it useful for. She has been Dean of the Humanities and Social Sciences Faculty at the Karakoram
International University and professor of anthropology at LUMS. She has also served at Griffith
University, Free University, Humboldt University and holds affiliations with University of California
Berkeley and Otago University. Among her publications see: Hindu Divorce (Ashgate 2007 and
Routledge 2013), Cultural Expertise and Litigation (Routledge 2011 and 2013), and Legal Pluralism and
Governance in South Asia and Diasporas (Routledge 2013 and 2015). Postal address: CSLS, 5 Manor Rd,
Oxford OX1 3UQ, UK. Email: livia.holden@csls.ox.ac.uk
This paper is single authored even though I use alternatively “we” and “I” throughout. I use do fieldwork
with Marius Holden, anthropologist and filmmaker. Since we develop our research sometimes together
and sometimes independently, my considerations are sometimes inclusive and sometimes exclusive.
Some language inaccuracies are inevitable since I am a non-native English speaker. I humbly ask my
readers to consider that in our global world where English must be used in order to reach broader
audiences, non-native speakers bear an additional burden.

Livia Holden Women Judges…
Oñati International Institute for the Sociology of Law
Antigua Universidad s/n - Apdo.28 20560 Oñati - Gipuzkoa – Spain
Tel. (+34) 943 783064 / Fax (+34) 943 783147
E: opo@iisj.es W: http://opo.iisj.net
753
Key words
Gender and judging; legal anthropology; South Asia; judiciary and diversity;
women’s rights; Islam; Pakistan
Resumen
A pesar de que la designación de juezas en Pakistán se remonta a 1974, la
significativa designación de "señoras juezas" en la pasada década ha provocado que
la representación de las mujeres en la judicatura haya pasado a más de un tercio
en juzgados de familia -un cambio silencioso que envía un mensaje de adhesión al
principio de igualdad de sexos consagrado por los tratados internacionales de los
que Pakistán es firmante. Mediante la investigación de las interacciones y
preocupaciones cotidianas de las juezas en su gestión habitual de la justicia, este
artículo analiza la recepción sociojurídica del discurso de los derechos humanos
desde la perspectiva de las mujeres que ejercen la judicatura. En tal estado de
cosas, cabe preguntarse si este cambio se limitará a las formas o si, por el
contrario, alcanzará a la justicia sustancial y comprobable. Los hallazgos permiten
también elucidar la forma en que la agenda global afecta las expectativas y
conceptos locales sobre los derechos, dentro y fuera del estado.
Palabras clave
Género y trabajo judicial; antropología jurídica; Asia meridional; judicatura y
diversidad; derechos de la mujer; Islam; Pakistán

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Table of contents
1. Introduction ........................................................................................... 755
2. Gender gap ............................................................................................ 755
3. Ethnography and feminism during the Chaudhry court ................................. 756
4. The appointment of female judges in the Chaudhry court............................. 758
5. Professionalism, culture, and stereotype threat .......................................... 762
6. Conclusions ............................................................................................ 766
References................................................................................................. 767

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1. Introduction
According to statistics from Pakistan’s Law and Justice Commission (2009-2013),
women now represent at least 1/3 of the judiciary in family courts in Pakistan. This
figure makes Pakistan the country with the greatest number of women-appointed
judicial officers among common law legal systems in Muslim majority states.1 Given
the overall scarcity of information—not only in Pakistan but throughout the world—
regarding modalities of judicial appointments (especially as concerning social
diversity), this figure should be taken with a certain degree of caution.
Nevertheless, it seems to be a significant indicator of an increasing awareness
regarding gender representation in the judiciary, which is not, however, the
primary focus of this paper.2 On the basis of qualitative data positioned on a
national level by including state law and relevant legal precedents, this paper
addresses the main concerns of women judges in Pakistan in their daily professional
lives. This data assists in understanding how the global agenda of women’s rights is
received and implemented in Pakistan.
This paper starts with a brief methodological outline describing my research
approach as qualitative data collection that is aware of quantitative findings. The
paper then offers the socio-legal background to the appointment of women judges
between 2009 and 2013. It subsequently goes on to explore the issues that women
judges have expressed as the most significant in their private and public lives. This
paper maintains that even though qualitative observation might not be directly
commensurable with statistic data, it helps to put quantitative data into
perspective. In particular, it assists in bridging the gap between the particularity of
data on the appointment of women judges in a Muslim context, and the
substantively similar issues relating to the appointment of women judges at the
global level. The paper will ultimately expand on conclusions regarding the potential
of a more substantial and accountable justice especially relating to gender equality.
2. Gender gap
In June 2011, the Thomas Reuters Foundation’s poll of experts declared Pakistan
among the three most dangerous countries for women “due to a barrage of threats
ranging from violence and rape to dismal healthcare and ‘honor’ killings”. The same
report also signaled that 90% of women in Pakistan are exposed to some form of
domestic violence. Even though our fieldwork experiences suggest that such
quantitative data require scrutiny, these should nevertheless be considered as
components of the social framework in which female judges work in Pakistan. As
exemplifications of the image depicted by quantitative data collected at a global
level, two series of data are provided below: the Gender Gap Index and the
representation of women in the judiciary worldwide. The Global Gender Gap Report
published by the World Economic Forum yearly, has placed Pakistan at the lowest
ranks, often in the last place in the regional ranking, especially for what concerns
economic empowerment. According to the United Nations Entity for Gender Equality
and the Empowerment of Women (UN Women) report published in 2011 under the
title In Pursuit of Justice, South Asia is behind Middle East and North Africa for what
concerns women’s representation in the judiciary. In addition, Pakistan does not
have any female representation at the supreme, constitutional, and regional courts.
We will see in this paper that these data are to a large extent confirmed by my
qualitative study. Yet, on the basis of my qualitative data, I argue that only a
combined reading of quantitative and qualitative data sheds light on the ways
gender discrimination is perpetuated in spite of new legislation. Given the country’s
overall ranking concerning women’s education, financial participation and political
1 Other common law countries with a Muslim majority population are Bangladesh, Brunei, Gambia, and
Malaysia.
2 I have developed elsewhere an analysis of how Pakistani judiciary has interpreted and applied the
principle of social diversity in judicial appointments (Holden 2011).

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empowerment, the significant presence of women judges in Pakistan is remarkable.
Indeed, notwithstanding the tiny population of educated professional women in
Pakistan, female judges now represent more than 1/3 of the judiciary at the level of
family courts. Moreover, during the time of our fieldwork women judges were
appointed at the High Court level in Quetta (Balochistan), Lahore (Punjab), Karachi
(Sindh), and Peshawar (Khyberpakhtunkhwa) and even at the Shariat Court. Marius
and I argue that while quantitative data are crucial to set the trends and patterns of
women’s condition in Pakistan, qualitative data are necessary to provide the depth
of analysis that is necessary to fully appraise the potential of female judges’
appointments in Pakistan.
3. Ethnography and feminism during the Chaudhry court
Between 2009 and 2013 Marius Holden and I were granted unprecedented access
to law courts in Pakistan, where we spent more than three years observing legal
proceedings in the four provinces of Punjab, Sindh, Balochistan, and
Khyberpakhtunkhwa. 2009-2013 has been also called as the Chaudhry court among
the judiciary from the name of the sitting Chief Justice. Iftikhar Muhammad
Chaudhry was appointed as Chief Justice in 2005 by President Musharraf but was
asked to resign in 2007 and as a result he was suspended from office. A number of
Justice refused to take oath under the Musharraf refime. It ensued a protest and
civil unrest that took the name of Lawyers’ Movement, which obtained the
restoration of Chief Justice Chaudhry and an independent judiciary.
I was working full time as professor of anthropology in Lahore and some of my
colleagues were active in the Lawyers Movement, which was for us an excellent
entry point. I needed to combine my fieldwork with my teaching load but some
sessions were carried out also with my class. In average, we could dedicate an
average of one week per month for three years and followed up to ninety cases a
day when we could stay the full day in court. We filmed one hundred twenty hours
of legal proceedings in court and forty hours of interviews, sometimes in the judges’
chambers and sometimes at their homes. Data were collected also through
observation and un-structured interviews conducted both in English and in Urdu.3
From 2013 to 2015 we moved to Gilgit Baltistan and expanded our focus to legal
proceedings in Northern Pakistan but this paper is only concerned by the first phase
of our fieldwork in Pakistan when we were based in Lahore. During this entire
period, Pakistan transitioned from its last dictatorship to two successive elected
governments. These elected governments featured opposite political agenda but
perhaps similar failures regarding the protection of human rights, and especially
women’s rights.
Since we were not only working and living in Pakistan but also doing fieldwork with
the judiciary between 2009 and 2013, we had the opportunity to witness the
culmination and crumbling of the Lawyers Movement: from paladins of the judiciary
after the fall of the Musharraf dictatorship in 2008, to vehement opponents during
the political turnover of leadership leading to the retreat of Asif Zardari and the
Pakistan People Party in favor of the Muslim League headed by Nawaz Sharif in
2012. Eventually, the same social rights activists that had fought together with the
Lawyers Movement for the independence of the judiciary, started to accuse the
members of the apex judiciary of corruption. The judiciary responded harshly by
blocking criticism in the media through charges of contempt of court and limiting
the access of the media in a climate that led to increasing criticism against the
Chaudhry court.
During the tumultuous years of the rise and fall of the Chaudhry court, we were
permitted to film court proceedings and social interactions in the courts presided
3 As one can see in Lady Judges of Pakistan (2013) many female judges are fluent in English. However
Marius and I speak Urdu and do not need the help of an interpreter in the field.

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over by female judges.4 The first outcome was the documentary film Lady Judges of
Pakistan, launched in 2013.5 I will provide elsewhere some insights into our ethical
concerns as anthropologists in a dangerous and intelligence-controlled fieldwork
situation. However, at all times we abided by the ‘do not harm’ anthropological
principle as well as adhered to the principle of academic freedom and independence
from any undue influence. The combination of these principles allowed us to
observe two discrepant trends: on one hand the increasing pressure for filling the
gender gap in the judiciary, and on the other the adoption of measures that were
finding little or partial implementation. The leading question of our research has
been how the appointment of women judges could co-exist with some extremely
male-oriented practices in Pakistan, whether the appointment of women judges
would have an impact on women’s rights, and whether women judges would
continue to be substantially represented in the Pakistani judiciary.
The primary focus of our research was the everyday practice of legal proceedings
and especially the legal discourses that social actors elaborate in support of their
claims. However, within the above framework we also explored the ways women
judges respond and adjust to the complex and intersecting demands of Pakistani
society as part of the global world, especially with regard to gender equality.
Hence, this paper has developed around the appointment of women judges and
their daily lives. Similar to our previous research in South Asia, my position is
inspired by the feminist multidisciplinary trends that criticize the male monopoly of
knowledge (Hesse-Biber et al. 1999), and by the classical studies of power
(Foucault 1969, Clastres 1974, Godelier 1986, Bourdieu 1994, Dirks et al. 1994).
My standpoint is the feminist denunciation of the conventional scientific knowledge
that has prioritized men's values as the paradigm of human experience (Harding
1987, Hirsch and Keller 1990, pp. 370-385). My methodological approach has
privileged law and society through the lenses of gender and power since my first
fieldwork in South Asia around 1995. However, with the passage of time I have
increasingly taken into account the criticism that women’s movements in Asia have
directed at North American feminists for their exclusive focus on gender (Mohanty
et al. 1991). Additionally, I have become increasingly aware of the risk to over-
emphasize the role of personal laws in South Asia and thereby undermining their
negative impact on women’s rights (Parashar 2015).
Notwithstanding, I have also taken into account the scholarship studying women’s
movements in Pakistan, that has shown how Islamic feminism has literally
redefined women rights’ agenda in Pakistan within the religious-political discourse
to the point of creating an opposition between secular and Islamic feminism (Barlas
2006, Wadud 2006, Zia 2009, Hassan 2013). This picture is complicated by
institutional standpoints that do not always reflect popular expectations. As we will
see in this paper, the Federal Shariat Court has most of the time held positions that
are more progressive than the Council of Islamic Ideology for what concerns
women’s rights. This is understandable if one looks at the different nature of these
institutions, notwithstanding their overlapping competence regarding the
compliance of laws with Islam. The Federal Shariat Court belongs to the judiciary
and is competent to examine the compliance of Pakistani laws with shariat (article
203 Constitution). The Council of Islamic Ideology is a constitutional body founded
in 1961 with an advisory role to the Parliament and the government for what
concerns the conformity of laws with Islamic injunctions (articles 229 and 230
Constitution). Pakistani institutions and the judiciary, including the Federal Shariat
4 In order to film in law courts in Pakistan, similarly to the other countries where Marius Holden and I
have been allowed to film in law courts, we obtained the required permits from the various levels of
involved jurisdictions and concerned offices (District Court, High Court, Supreme Court, as well as
Provincial and Federal Academies as applicable), and from each individual that we have filmed.
5 The title of the project during which data for this paper were collected is inspired by the fact that
women judges are addressed as “Lady-Judges” in Pakistan. The documentary film is also titled Lady
Judges of Pakistan. In similar vein, we also sometimes use the appellation lady-judges.

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Court have shown so far a considerable independence and distance from the
controversial views of the Council for Islamic Ideology. The latter is known for
having opposed much of the pro-women legislation, especially the Women’s
Protection Act 2006 that punishes rape, the Domestic Violence (Prevention and
Protection) Bill 2012, and the Muslim Family Law Ordinance 1961 and amendments,
that provide for divorce at the woman’s initiative and also requires the consent of
the first wife for the husband to take a second wife. In May 2016 the Council for
Islamic Ideology sparked outrage among social activists by arguing in favor of light
beating of the wife (Khan 2016).
Since women judges, during our fieldwork, were implicitly acting as spoke-persons
for the judiciary, this paper is also inspired by the institutional theories that
examine social structures as both imposed and perpetuated by social actors (Scott
1985 and 1990). However, the position that I have developed during my research
in South Asia also differs from Scott in that I investigate the discourse of social
actors for its potential resistance rather than acquiescence to the overarching norm
(Raheja and Gold 1994). By focusing on both legal proceedings and everyday
professional interactions with colleagues as well as the challenges and concerns
that women judges cope with at home, I have analysed both the mundane and
institutional aspects of women’s rights from the perspective of female judges.
Hence, this paper connects with the scholarship that has highlighted the
relationship between gender and judging (Schultz and Shaw 2013), and the authors
who have especially treated the appointment of women judges in Muslim majority
countries (Sonneveld and Lindbeck 2017), including also the applied perspective of
donors in setting priorities in their action for gender equality (Addison et al. 2016).
4. The appointment of female judges in the Chaudhry court
In order to better appraise on one hand the pro-women reforms that one expected
to see during the Chaudhry court due to the increased representation of women in
the judiciary, and on the other hand, the awkward implementation of these
expectations, it is important to set first the relevant socio-legal framework.
Gender, language and ethnicity together with religion, do not figure among the
formal criteria for the appointment of judges. The only explicit provision for the
appointment of female judges is to be found in the Family Court Act, 1964 as
amended by the West Pakistan Family Courts (Amendment) Act 1994 (Federal Act XXI of
1994). On this basis women should preside family courts all over the country.
Establishment of Family Courts
(1) Government shall establish one or more Family Courts in each District or at
such other place or places as it may deem necessary and appoint a Judge for each
of such Court:
Provided that at least one Family Court in each District, shall be presided over by a
woman Judge to be appointed within a period of six months or within such period
as the Federal Government may, on the request of Provincial Government, extend.
(2) A woman Judge may be appointed for more than one District and in such cases
the woman Judge may sit for the disposal of cases at such place or places in either
District, as the Provincial Government may specify.
(3) Government shall, in consultation with the High Court, appoint as many woman
Judges as may be necessary for the purposes of sub-section (1).
In 1974 the first woman, Khalida Rashid Khan, was appointed as judge in Pakistan.
She was appointed as anti-corruption judge in 1974, which is interesting in the light
of the discussion developed later in this paper about gender and corruption. She
was then elevated to the High Court in 1994; and in 2003 she was nominated as
permanent judge elected by the General Assembly of the United Nations. While her
career is undeniably a success for a country that does not score highly in gender
equality, many among the judiciary itself maintain that judge Rashid’s nomination

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to the General Assembly of the United Nations had the hidden objective of not
allowing her to access the Supreme Court of Pakistan. Although our focus was in
particular on the female judges that were appointed during the Chaudhry court, we
registered at least one other case in which a female judge, Rukhsana Ahmed, was
terminated on medical grounds in 2010. This was apparently because she used to
decide cases on merit. Such an ambivalence between legislative provisions
facilitating the appointment of women judges at all levels of jurisdiction including
but not limited to family law, and everyday obstacles that remain in the realm of
plausible deniability, seem to add to the leitmotif of the increasing presence of
women judges among the Pakistani judiciary.
Prior to the completion of Lady Judges of Pakistan, neither the public nor the socio-
legal scholarly community were aware of the significant presence of women at the
lower level of the judiciary in Pakistan. To a great extent, this remains the case for
reasons that this paper will identify. It is noteworthy, for example, that in spite of
appropriately highlighting some of the problems faced by female judges in Pakistan,
none of the recent petitions by social activists is able to provide the actual number
of women judges among the Pakistani judiciary or go into any depth on the reasons
and modalities of their poor representation among the higher ranks of the judiciary.
In November 2012, the Aurat Foundation petitioned for the empowerment of
women in relation to access to justice and the judiciary. However, they did so
without acknowledging the already existing appointments of women judges at the
family courts level (Aziz and Abdullah 2012):6
11. Take administrative measures to engender all echelons of the Judiciary
through:
− gender parity in appointments at all family courts, sessions and civil courts;
− affirmative action in appointment and elevation of women judges to the
High Courts and the Supreme Court of Pakistan;
− gender-sensitization and gender equality training for all judges at all levels.
Around the same time in 2012, the UN Special Rapporteur Gabriela Knaul, Human
Rights Watch, and the Asian chapter of the Human Rights Commission petitioned
against the inadequate representation of women in the higher judiciary and
denounced the harassment of female judges in Pakistan. As the following extract
highlights, the Human Rights Commission requested a female representation of 33
percent, as recommended by the UN conference in Beijing, without specifying
whether the prescribed percentage had been reached among the lower ranks of the
judiciary (Asian Human Rights Commission 2012):
Pakistan has ratified the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) but the judiciary believes that it is also
beyond any international obligations. The Asian Development Bank has spent more
than USD 350 Million for the reforms in the judiciary and has mentioned that
women judges should be appointed. The same has been said under the US Aid
programme of gender equality and a huge amount is reserved for it under the
Kerry-Logger Bill. It also demands that more support is given to women. The Asian
Human Rights Commission urges the government and parliament to follow the
international obligations it has agreed to by becoming a signatory to CEDAW.
Women judges must be elevated to the Supreme Court and other judicial offices.
The discrimination by the judiciary will not improve unless it starts at the top with
the Chief Justice. If Mr. Chaudry does not change his mindset the other high-
ranking members of the judiciary cannot be expected to change theirs. Women
must be permitted to fill those 33 percent of the seats they are entitled to.
Almost a year later in 2013, this petition mentioned above was reformulated, this
time mentioning instances where female judges had encountered resistance and
6 The Aurat Foundation is a civil society organization established in 1986 with the aim of promoting
women’s empowerment and citizen’s participation in governance. In common with most activist
organizations in Pakistan, the Aurat Foundation is funded mainly by international donors.

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blatant discrimination by male colleagues and in society, which then led to their
resignation. Others encountered more subtle obstacles hindering their career
advancement. In particular this petition deciphers the apparently successful career
of Khalida Rashid Khan –the first woman to become a judge in Pakistan– in the light
of preventing her elevation to the Supreme Court. Khalida Rashida Khan was
appointed as civil judge in Peshawar in 1974, worked as an anti-corruption judge
from 1981 to 1982, and was eventually elevated to the High Court in 1994.
However, according to the Human Rights Commission, the reason for Khalida
Rashid Khan’s nomination in 2003 as one of the permanent judges elected by the
General Assembly of the United Nations, was purely to make her elevation to the
Supreme Court in Pakistan impossible.
In 2012 Marius and I were pleased to acknowledge the availability of the staff of
the Law and Justice Commission, after an initial refusal in 2010 (Holden 2011). The
consultation of the available statistics at the Law and Justice Commission and press
releases indicates a considerable number of brief appointments of female judges,
with very frequent moves. It was not our aim to record all the contract lengths and
transfers of female judges, but we could follow the careers of some of them also
through the newspapers, which use to advertise judges appointments and it was
possible to record the occurrence of several short appointments and many
transfers. While we acknowledge that brief appointments could be due to factors
other than gender, and revolving around security as well as neutrality concerns
(see also Holden 2011), we have considered the occurrence of short contracts as
indicators of potential issues. Hence, I argue in this paper for the need of a better
understanding of societal and professional expectations in relation to gender in the
judiciary. However, before proceeding in this direction, we briefly set out the legal
framework within which women judges have been received in Pakistan.
Since 2009 Pakistan has seen a significant induction of female judges at the lower
level, unprecedented appointments and elevations to the High Courts, both from
the bar and from the lower judiciary. Yet, recommendations to provide gender-
sensitive training and reports on the number and ranking of women in the judiciary
date back to 2005 CEDAW considerations of periodic reports of Pakistan as state
party to the convention:
The Committee also recommends gender-sensitive training on violence against
women for public officials, in particular law enforcement personnel, the judiciary
and health service providers, to ensure they are sensitized to all forms of violence
against women and can adequately respond to it. […] The Committee invites the
State party to provide, in its next periodic report, comparative data on the number
and ranking of women, compared to men, at federal and provincial levels of
government service and in the judiciary and trends over time.
The fourth and most recent report on the status of CEDAW’s implementation by
Pakistan, discussed on March 1, 2013 cannot have appeared very convincing. The
committee expressed several concerns, in particular regarding patriarchal attitudes
and the perpetuation of gender stereotypes that would be supported by the
constitutional recognition of the Shariat Court (CEDAW 2013):
The Committee is also concerned that the jurisdiction of the highest courts in the
Constitution does not apply to the whole territory of the State party, hence women
could be deprived of their constitutional rights, as well as about the ambiguity
caused by the recognition in the Constitution of the Federal Shariat Court. It is also
concerned at the lack of awareness by the judiciary of women's rights and relevant
domestic legislation. It is further concerned at the existence of parallel justice
systems (jirgas and panchayats), despite the ruling against their legality, and of
different informal dispute resolution mechanisms (Musalihat Anjuman), which
discriminate against women.
It is further concerned that patriarchal attitudes and deeply rooted stereotypes
regarding the roles of women and men in society result in the forced
disenfranchisement of women and impede and discourage their participation in

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elections (as candidates and voters). It reiterates its concern at the low
participation of women in the judiciary in the superior courts and the total absence
of women judges in the Supreme Court (CEDAW 2013, para. 32).
Interestingly on December 30, 2013 Mrs. Ashraf Jehan, additional judge at the High
Court of Sindh, was appointed as the first female judge in the Federal Shariat
Court. There is some ambiguity about whether this should be interpreted as fighting
gender discrimination or perpetuating it, but it was saluted as an historical moment
by the media both in Pakistan and abroad.
The admissibility of women to the judiciary had been challenged twice before the
Federal Shariat Court, in 1982 and again in 2010. To my knowledge, these judicial
decisions have not been analyzed in depth.7 We find them interesting since the
arguments used by the petitioner bear a close resemblance to arguments
commonly used in the everyday socio-legal context of Pakistan and may help shed
some light on them. Burney v. Federation of Pakistan in 1982 (published in 1983)
outlined the reasons of the petition as follows at page 75:
This petition has been filed to challenge the appointment of women as judges or
Magistrates for the following reasons: -
(1) They discharge their functions of Qazi [A. judge] without observing Pardah [P.
curtain, religious practice of gender segregation] which is a clear violation of the
Injunctions of Islam.
(2) During the period of the Holy Prophet and his rightful companions the duties of
the Qazi were never entrusted to females since it appears to be a violation of the
Injunctions of Islam.
(3) According to Muslim Law the evidence of a woman is half of that of a man and
her share in the inheritance is equal to half of that of her brother. The judgment of
two ladies only can be equivalent to that of a male.
(4) The ladies do not fulfill the qualification of Qazi according to the established
principles of Islamic jurisprudence.
Eventually all four reasons were refuted, with one exception. The first and third
reasons were not accepted since the court did not consider the seclusion of women
an injunction of Islam and because rules regarding inheritance and evidence were
not held to have any bearing on the qualities required in a judge. Similarly, the
magistrates of the Federal Shariat Court found that the fact that there were no
women judges at the time of the Holy Prophet could not serve as proof that their
appointment conflicted with Shariat.
The petition against the appointment of women judges relied on the following
reasons: the Holy Prophet saying that there will be no blessing or prosperity for a
nation which is ruled by a woman; the sovereignty of men over women; and the
principle of men as the providers for women. In order to evaluate the objections,
the court also engaged in an historical and philosophical survey and ascertained
that the subordination of women had been widespread in the Greek and Judaic
views as well as in the Hindu, Buddhist, and Confucian tradition, as well as in 18th
century England and 19th century North America. The court went on to affirm the
unprecedented recognition of women’s rights by Islam, saying at p. 80 (Burney v.
Federation of Pakistan 1982) that:
27. Islam on the other hand placed woman and man both on the same footing in
economic independence, property rights and legal process. She may follow any
legitimate profession, keep her earnings, inherit property and dispose of her
belonging at will. (The Quran. 4:32)
The judgment devotes almost ten extra pages to rebutting the inadmissibility of
women judges. It is worth mentioning that the bench used the historical discussions
supporting the nomination of Fatimah Jinnah for the presidential elections of 1964
7 See however Mehdi 2012.

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as confirming the fact that women can be appointed as judges. The learned judges
reasoned that although art. 41 of the Constitution says that the Head of the State
should be a Muslim male, two of the most renowned Ulemas of the 20th century,
Maulana Ashraf Ali Tanvi and Allama Syed Sulaiman Nadvi, and even Jamat-e-Islam
(Islamist organization and political party) endorsed the view that a woman could be
elected as president of Pakistan. The conclusion was that if a woman could be
elected as president of Pakistan there should be no contention that a woman could
also be a judge. It is perhaps equally telling that the current wording of the
Constitution states:
41. The President.
(1) There shall be a President of Pakistan who shall be the Head of State and shall
represent the unity of the Republic.
(2) A person shall not be qualified for election as President unless he is a Muslim of
not less than forty-five years of age and is qualified to be elected as member of the
National Assembly [present authors’ emphasis]
In 2010 a new petition, Murtaza v. Federation of Pakistan and others, was
submitted to the Federal Shariat Court. This petitioner argued that the appointment
of female magistrates to the family courts was repugnant to Islam. It stated at
page 2:
The main contention of the petitioner is that a woman cannot act as a Qazi/Judge
or Munsif and is, therefore, not competent to decide matters between the litigants
in respect of family cases and vice-versa. It has also been asserted that a Muslim
Ruler or Head of the State cannot appoint a woman as a Qazi/Judge with powers to
record evidence of the parties and decide cases between the litigants.
The petitioner’s arguments were almost identical to Burney v. Federation of
Pakistan (1982) with the exception of a fatwa [a non binding but authoritative legal
decision] issued by the Mufti Azam of Saudi Arabia affirming that a woman cannot
become the head of an Islamic state or Qazi.8 Hence, the petition was dismissed
because the same arguments had already been evaluated more than twenty years
before and no law had indeed been challenged. In fact, apart from the Family Court
Ordinance, 1964, which provides for the appointment of female magistrates, no law
in Pakistan has formally introduced the appointment of women judges, presumably
because there was no hindrance ab initio.
The appointment of judges in Pakistan has generated controversies with regard to
accountable justice and the overarching principle of judicial independence.
However, to date the crux of the matter was how much authority the elected
political representatives of the Federation had over the selection of judges, rather
than over the judges’ gender (see also Holden 2011). Hence, whilst on one hand
from 2009 onward the appointment of female judges has increased, this has not
been facilitated by a supportive implementation as it has been for other matters.
For instance, the independence of the judiciary has continued to be treated as a
priority for the Chaudhry court.
5. Professionalism, culture, and stereotype threat
On the basis of the accounts that we collected during our visits to the law courts
presided over by women judges in the four provinces of Pakistan, the appointment
of women-judges has never ceased to arouse heated debates. Some people,
including lawyers and members of the judiciary, seemed to worry that the process
of judicial decision-making may become too soft and therefore inefficient due to the
inclusion of women in the judiciary. While this is an argument that is often brought
forward in countries with Muslim majorities, it is worth noting that it has also been
raised with other gender stereotypes in Europe and North America, ever since
8 Several fatwas were issued against women judges. See inter alia Shah 2010.

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women have entered the legal profession (Schultz and Shaw 2013). However, the
question of “softness” is more faceted than one might think at first sight.
Perceptions of “softness” as a woman-related characteristic should be examined for
the danger of reformulating gender segregation as a “natural” quality of the
“naturally” unapproachable gender. Ironically, this would make women better
judges than men. Although this vision has evident upsides, it might also be
challenged in terms of the implementation of decisions by women judges and the
potential manipulations of the legal process because women, being
unapproachable, may also be considered less capable of dealing authoritatively with
men. It should be noted that this debate generated the most vehement reactions
amongst our respondents. They argued that, apart perhaps from having a soft spot
for children’s custody, female judges are no different to male judges with respect to
both their characteristics as judges, and law and records (Lady Judges of Pakistan
2013).
In fact, the competence of female judges in Pakistan includes both civil and criminal
cases and, marking a difference with other Muslim countries, does not differ at all
from that of male judges. The current practice in Pakistan is that at least one
woman should be appointed as judge at the level of each District and Sessions
Court, and women judges are preferentially appointed to Family Courts. As
mentioned earlier, it is sometimes a source of surprise among the international
audiences to know that in countries with a Muslim majority the appointment of
women judges is not very recent and has indeed increased dramatically during the
past twenty years. But it is an even greater source of surprise to the general public
outside Pakistan to know that the Pakistani audience itself is astonished to hear
that the proportionately higher percentage of women judges has been appointed in
Khyberpakthunkhwa, the Northern area of Pakistan, which is very often portrayed
within the country as the stronghold of Islamic extremism and patriarchy. Hence
the following account collected in Peshawar and since published by various local
newspapers.9
When women judges were appointed in Khyberpankhthunkwa, anxiety grew
regarding the reception of what could appear as a too innovative institution among
the most conservative strata of society. Nevertheless lady-judges were sent even to
the most remote areas of Khyberpakhthunkwa and attention was put into providing
them at least with suitable accommodation and appropriate security. The most
surprising outcome was not only that many of them adapted easily to their new
location and found their experience as valuable, but that when Justice Naseer Ul-
Mulk visited the area he was expressly thanked by the elders for sending lady-
judges instead of men to settle justice. The reason was that lady-judges are more
capable than men to deal with family matters and most of all that they are not
corruptible because as women they are not approachable. (District and Session
Judge, Peshawar, audio extract from Lady Judges of Pakistan, 2013)
As this account epitomizes, women judges in Pakistan appear to make the most of
the cultural principle that may favor varied degrees of gender segregation, by
turning this potential downside into an upside that makes them inaccessible to
undue pressure and affords them a privileged position. Hence the humorous
accounts of the women judges who, in spite of social constraints, can look with
detachment and irony at the ruses of male lawyers who attempt to influence court
proceedings or, even worse, to discredit their work. For example, most women
judges argue that since it is inappropriate for male lawyers to go to the chambers
of female judges, they are at less risk than men of being accused of cutting deals
out of court (see also Lady Judges of Pakistan). Interestingly, the most frequently
recurring statement among lawyers and judges was that the induction of women
into the judiciary has been an improvement in terms of leading to more balanced
decision-making process (especially as concerns family law) and fighting corruption,
9 See for example The Nation 2012.

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thanks to the widespread assumption that women are less approachable than men.
From these conflicting views stems another set of data pointing to the conditions
allowing women judges to successfully negotiate their professional lives. We shall
see that these data are almost never free of controversy.
However, the downside of unapproachability is often the difficulty of executing
judicial decisions. This is due to the prevailing situation of de facto legal pluralism,
where a certain amount of negotiation with local actors is expected. By way of
example, some female judges from Balochistan and Sindh confessed to having their
hands tied when feudal lords or elders sought to protect insolvent husbands. As a
consequence it appears that judicial education would benefit from including a better
understanding of indigenous laws. Even though unapproachability in its contextual
interpretation is linked with integrity and respect for local values, the overvaluation
of this aspect might translate into less authority, and thereby limited justice.
On a related note, virtually all women judges expressed a wish to have more
opportunities for communication with peers and consultation with seniors at
different stages of their career. Gender appears to have a strong impact on the
modalities through which consultation with colleagues is deemed acceptable. In
some courts where senior women judges have been given an advisory role, junior
women judges seem to have felt more comfortable in their first appointment.
It is evident that, as women judges are becoming professionally accomplished, they
are also developing an articulated self-reflection. Their situation generates unique
qualities combining cultural and professional attributes that deserve
acknowledgement as these women judges combine gender segregation with
accountability. However, here again the risk might be to create areas of lesser
justice or to simply negate opportunities for social change and professional
challenge. These may be hints of the need to balance cultural specificities with
accountability and to differentiate it from the independence of the judiciary and the
advantages of gender segregation.
Even though it has been several decades since women joined the legal profession
as lawyers, the systematic induction of women judges is still recent in Pakistan.
There is widespread concern regarding whether the current framework of legal
education equips the newly inducted judicial officers with the necessary instruments
for responding to the specific demands of their professional environment. A
recurrent finding was that the beginning phase is possibly the most delicate part in
the career of a woman judge, but perhaps this holds equally for all judges. This
should not be surprising, since many professionals can relate to the feeling of not
having been sufficiently prepared for the “real” expectations of the workplace. In
our conversations with women judges, they often expressed a wish that their
training would focus more on problem-solving situations and on typical situations of
judicial proceedings. It is worth noting that the Supreme Court of Pakistan has
already taken steps in that direction by collecting data on the judicial training in the
four provinces of Pakistan.
Many of the women judges whom we met expressed an eager interest in legal
training abroad because the perception is that these opportunities are given to
those who are in the good books of the upper judiciary, or that anyway, it would be
a good channel for their career. This wish should come as no surprise, given the
widespread assumption that Pakistan is a developing country that lacks even basic
infrastructure. However, the modalities and the outcomes of the current projects of
trainings abroad might deserve attention. After all, most faculty members at the
best Pakistani universities hold North American and British degrees, and many
members of the Pakistani judiciary not only hold foreign degrees, but also have
wide access to international training programs. Furthermore, the curriculum of the
Federal Judicial Academy regularly includes classes and workshops led by judges
and academics from abroad, especially the UK and North America. The higher
courts also exhibit the highest levels of legal sophistication, citing international case

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law as well as the finest English and Persian literature. Some of these decisions
have recently been made available in Urdu to make them more widely accessible
(see also Holden 2011). Hence it is evident that more complex implications revolve
around access to and the management of international training, especially because
this is about “educating” the élites that have the power to inform the political
dynamics of Pakistan. Judicial education in South Asia has always been close to the
concerns of the British and perhaps more recently the US, because it is the way to
inform the mindset of powerful élites.
One of the most frequently recurring requests by lady-judges during the course of
our fieldwork was the wish for more childcare facilities and flexible working hours.
In particular, they would find it difficult to participate in training (especially in the
capital and abroad) because they would not be allowed to take their children, not
even their youngest. In particular, we heard several accounts of female judges who
had to stop breast feeding due to the need to travel for training and because their
requests to bring a relative or a nanny who could take care of their babies in the
proximity of the judicial academy was declined.
At the international judicial conference in Islamabad in 2011, where we screened
extracts of the footage filmed for Lady Judges of Pakistan,10 we argued at the
request of some female judges that childcare and flexible work hours should be
considered to support the successful professional integration of female judges. It
goes to the credit of the Honorable Justice Mian Sakirullah Jehan and the Honorable
Chief Justice Iftikhar Chaudhry that they publicly announced that childcare facilities
were under construction at the Federal Judicial Academy and that more would be
built for law courts and judicial academies in Pakistan. The need for childcare
facilities was not expressed without a certain caution in the very formal context of
the Judicial Conference. We had in fact anonymized the voices in the footage we
screened because we did not want to expose our informants unfavorably; nor did
we want to favor the impression that the women judges may be voiceless; and
neither did we want to unfairly undermine the current efforts of the judiciary to
support the newly inducted lady-judges. We felt nevertheless that it was our duty,
as social scientists, to highlight not only the many merits of this overall process of
women’s induction into the judiciary, but also the areas that could be improved,
specifically from the input of the women judges themselves. It was our way to
respond to their demands for action.
“Quite interestingly” –an international scholar, who was also presenting at the same
panel at the International Judicial Conference in Islamabad pointed out– “women in
China do not hesitate to leave their children behind if given the opportunity for
international training”. This scholar was referring to his experience of selecting
Chinese law students for judicial training in the UK and he described how
prospective women trainees are likely to answer questions regarding children. On
the basis of his observation, one could infer that some of these junior women
judges may not necessarily share the anguish that most Pakistani female judges
expressed at having to leave their children behind. One could also think that
leaving one’s own families behind when seeking professional experience abroad
may be exactly what some women want. In brief, we may have over-interpreted
our respondents when supporting their claim for childcare and flexible work hours.
However, this anecdote points to another factor that also pertains to class. It
appears that the women judges whose family members are already in the legal
profession adjust more easily and quickly due to the greater support they receive in
terms of advice and understanding, but also regarding such practicalities as
childcare and hectic work schedules. Hence, it was perhaps less the alleged feelings
of motherhood and more about financial means that would make the difference
here. Indeed, the issue might be reformulated by asking what happens to the
10 This specific footage was not used in the final version of Lady Judges of Pakistan.

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young women with babies and young children when their extended family is not
able to provide adequate support? We still remember the tears of the young lady-
judges who had to stop breastfeeding because not even a domestic helper would be
allowed on the premises during their legal training at the Federal Judicial Academy.
One could sideline this issue by indulging in the stereotypes of local inadequacies or
perhaps also the anti-Western rhetoric that objects to childcare as being a Western
imposed value. Nevertheless, we argue that a greater level of social diversity in the
legal profession would be encouraged by providing childcare and other facilities
(places for worship, catering, and restrooms), which would better support women in
their professional lives without expecting exclusive choices. If one thinks of the
ongoing discussions in places where professional women have postponed having
children or even having a partner because of the real or perceived incompatibility
between family and career, it also appears clear that what is at stake here,
overflows the boundaries of the local because it interrogates the overall aims and
management of development and education programs.
The delicate balance between academia and advocacy is further highlighted by
another anecdote constituting the most recent development of the discussion on
female judges and childcare, initiated in 2012. While most younger female judges
felt elated by the positive response of the Chief Justice to the childcare request,
after almost one year a senior female judge approached me discreetly, arguing that
these childcare claims were nothing other than misleading attempts to emulate the
West. She explained that she would never entrust the care of her children to any
institution. As if unwilling to exemplify the point we make above in this paper, she
added that she never needed her salary and had always been able to afford the
services of a Philippina nanny for her children. Even if she was apparently
contradicting herself, this rhetoric is not unusual among some of the well -travelled
and cosmopolitan upper middle classes in Pakistan (but not only), who tend to
justify the denial of basic rights to the lower classes by claiming a nativist
perspective that refuses interference from “outside”.
6. Conclusions
In conclusion, the tension between judiciary and the executive which has informed
the rise and fall of the Lawyers Movement, also transpires in the protection of
women’s rights in Pakistan: whilst the Federal Shariat Court, which belongs to the
judiciary, has substantially defended so far the appointment of female judges, the
Council of Islamic Ideology which is rather a government body, has opposed most
pro-women reforms in Pakistan. This paper, in particular, has shown the ways
Pakistani women judges construct their own image, their reactions vis-à-vis the
stereotype of the submissive Muslim woman, and their interpretations of women’s
rights. Female judges tend to recognize a significant role to Islam, as infusing a
certain legal awareness regarding women’s rights. As such this paper confirms Zia
(2009) who has highlighted the impact of Islamic feminism for reformulating
gender equality, and a certain degree of resistance to patriarchy, but within the
tenets of Islam. I argue, furthermore, that although the binary opposition between
secular and Islamic feminism does not fully make sense of women’s movements in
Pakistan, it adequately points at how class-shared values have impacted the
reception of the women’s rights agenda. Feminism and women’s rights in Pakistan
have an elitist matrix but are gaining some credit in the format of Islamic feminism.
Women judges in Pakistan express a keen wish for international acknowledgement
that takes cultural specificities into account. Perhaps, from the point of view of the
lady judges themselves, the most all-encompassing conclusion of this paper should
be that the lady-judges of Pakistan are skillful and creative in combining culturally
informed expectations with the needs of their profession. The leading example of
such creativity is gender segregation reformulated as an indicator of accountability
and a way for female judges to be accepted even by the most conventional strata
of Pakistani society.

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Women judges’ narratives develop in Pakistan also around themes that are
significant at the global level: experiential teaching and problem-solving learning;
childcare; “softness” as a controversial argument that has the potential to act as a
plus and not as a minus; difficult execution of state-courts’ decisions in a situation
of de facto legal pluralism that exceed the state; and communication with peers
and seniors. Hence, this paper, to some extent confirms Sonneveld and Lindbeck
(2017) in that “the woman judge” does not exist, but the findings here go further to
suggest that the ways women judges see themselves and develop their
expectations from society, has a relational impact at the local level: female judges
in Pakistan claim the acknowledgement of a professionalism that relates to the local
context as much as it connects with the global.
The struggle becomes therefore for the social scientist to adequately make sense of
these socio-political and economic dynamics without becoming an instrument in
their hands. As this paper has shown, context-informed analysis will benefit from
taking into account the making and re-making of identity-processes that go beyond
the narrow concept of nation in order to highlight the local implications of the global
development agenda. The international trend is that the representation of women
in the legal profession is crucial to a just decision-making process, and the lady
judges of Pakistan are evidently filling the gap implied by quantitative data. The
challenge lies in whether this change will be mainly a formal one or also one that
leads to a consistent inclusion of women at all levels of the judiciary. As Schultz and
Shaw (2013) have shown only too well, the inclusion of women in the judiciary
should be considered an achievement regardless of the issue of whether a gender-
balanced judiciary is indeed more accountable and just. Obnoxious arguments
highlighting the obstacles to women’s participation in social life a justification for
their exclusion, have received credit for too long.
This paper has also provided evidence of the facile manipulation of the global
development agenda by both national and international actors: on one hand short-
term gender representation for the sake of international image and on the other the
international donors who appear to conveniently reformulate women’s rights in
order to avoid the cost related to childcare and security of employment. All this in
the backdrop of a social activism that, in spite of its goodwill and good cause, too
often lacks the expertise for appraising the complexity of social facts at the ground
level. Hence, the gaps of information in the human rights reports, which this paper
has filled by discussing the achievements as well as the failures of female judges’
appointments. Such a complex social phenomenon also hints at for-profit strategies
that intoxicate some of today’s international aid. Eventually, this paper shows that
women judges in Pakistan share similar preoccupation with the other women and
men in the judiciary around the world regarding better working conditions, training,
and the combination of family and profession. Yet, the sustainability of female
representation in Pakistan might depend also on whether or not their specific claims
for a context appropriate professionalism will indeed strengthen their legitimacy
within Pakistani judiciary as to break the glass ceiling on the longer term.
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