Justice Ayesha Malik: A small step for woman, a giant leap for gender equality?
BY KALLI JAYASURIYA
The Pakistan Supreme Court building.
The Supreme Court of Pakistan officially inducted Justice Ayesha Malik on the 24th January, 2022. Many are celebrating, calling it a landmark event for gender equality in Pakistan, a country that, like all others, struggles with patriarchal norms. Until now, no woman has ever been a Justice in Pakistan’s Supreme Court. It is the last country in Central-South Asia to welcome women to its highest courts. However, I believe that it is impossible to measure gender equality via the empirical representation of women in political institutions. For instance, the World Economic Forum’s 2021 Gender Gap Index ranked Rwanda, a country where extreme sexual violence and the legacy of genocide persists, 7th, only because it has the highest global representation of women in its legislature. For scale, Pakistan was placed 153rd. I will outline some reasons why the quantitative presence of women does not spell qualitative progress towards gender equality.
I believe that our definition of gender equality itself is a major obstacle to creating a gender equal world. Typically, society conceptualises gender equality as a binary of legal equality and equal representation between male and female. Thus, we exclude non-binary and transgender people, and overlook the intersecting layers of identity that can affect someone’s experience of gender, such as race and class. Moreover, there is more to gender equality than being a woman. Not all women are feminists – Margaret Thatcher is a prime example. Whilst Malik has proven herself to be an open feminist (in 2021, she was a critical actor behind the prohibition of virginity tests in sexual assault cases), she cannot represent all Pakistani women, a diverse group.
However, as a lone woman amongst 15 male Justices, she faces an immense pressure to do so. For true change, women “need to become expected, rather than exceptional” (see Studlar & McAllister, 2002, p. 240). Her appointment marks a step in the right direction, but the journey to gender equality is not over because the representation of the LGBT community’s interests and rights, and those of the most marginalised peoples, in Pakistan’s Supreme Court should be of equal priority. Personally, gender equality should involve the breaking of the male-female binary alongside the radical transformation of patriarchal norms. Representation in the public sphere does not automatically address problematic societal and cultural norms in civil society; for example, women disproportionately do unpaid domestic work and childcare in the private sphere. It is difficult for the state to use legal mechanisms, like Malik’s appointment, to provoke change in these domestic spaces.
The institutional norms and rules of Pakistan’s judiciary is a significant barrier that prevents the realisation of gender equality. We should shift our focus from Malik as an individual female actor to the wider structures themselves, that often limit the capacity of representatives to represent marginalised peoples substantively. In fact, the selection process to Pakistan’s Supreme Court is very problematic because it is not participatory. Dr Faqir Hussain outlines the process: a Judicial Commission selects candidates based on merit. These are then proposed to a Parliamentary Committee, which either vetoes or agrees to the Judicial Commission’s draft. The Parliamentary Committee includes the Leader of the Opposition and the Leader of the House, both male.
Participation is a vital element of democracy, yet nominating committees do not allow for the wider legislature and electorate to participate in decision-making. Thus, the selection process for Pakistan’s highest courts is sheltered from the public and is mostly invisible. The selectorate (the politicians and committee members who elect justices, as opposed to the wider electorate) do not have an electoral incentive to make appointments that appease potential voters and are thus less likely to select women. Likewise, there was a lot of controversy surrounding Malik’s appointment because many argued that she is less senior and qualified than her male competitors: members of Pakistan’s Bar Council threatened to strike. This goes to show the aversion to affirmative action, which aims to overcome structural barriers such as gender bias. The consensus is that the selection process is gender-neutral and fair, which is certainly not the case. Malik’s potential to represent marginalised groups, it therefore seems, is hindered by insidious institutional norms and false gender-neutral mechanisms.
Luckily, people outside of the political arena and formal institutions are also agents in the promotion and creation of a gender equal society in Pakistan. Civil society activism is uninhibited by institutional rules and regulations. Social movements unite their members around a common cause whereas formal representatives in the judiciary, or legislature, have constituents with differing issues on their agendas that they want addressed. Hence, there is not enough time and space that can be dedicated specifically to gender issues in these institutions. In the Swat Valley, women have established a Jirga to pursue justice at a local level informally. Elsewhere, women peasants have helped to propel the Anjuman Muzareen Punjab, a movement that seeks to protect farmers’ land rights in the Punjab region.
Malik is a symbol of progress towards a Pakistan that includes women in its highest positions in the judiciary. Her presence in a traditionally male-dominated space subverts patriarchal norms. Nonetheless, I believe that she is only one piece in a larger puzzle. Gender equality is more complicated than the mere inclusion of women in institutions. Besides, marginalised groups are actively involved in their own mission to achieve gender equality, which undermines patriarchal norms and the gender binary.
Image source - Flickr (ImposterVT)