From Unsolicited Advice To Discouragement: How Misogyny Plagues Pakistan’s Courtrooms
The system of formal dispute resolution as it exists today, has evolved over centuries. From local customs and local courts headed by chieftains and tribal elders to the hierarchical pyramid inherited under the British regime, the formal dispute resolution mechanism has always echoed and been premised on the historical and social power relations of its time. It was these relations and power dynamics that determined who the arbitrators of justice would be and who would counsel and represent the parties.
For instance, in the UK, some of the earliest judges in the 12th century were court officials with particular experience in advising the monarch on the settlement of disputes. These would be men because resolution of dispute through courts was in public sphere where women’s access, especially in representative roles was severely restricted. It was not until 1919 when Sex Disqualification (Removal) Act was passed that women in UK came to be admitted to the legal profession. Prior to that, they could enrol to study the discipline and even graduate with a degree in law but were not eligible to practice.
Likewise, under British India, similar rules created legal barriers for women from entering the legal profession. They could study law but could not practice until 1923 when the Legal Practitioners Act 1879 was amended to remove this barrier. Even under local customs and patriarchal social structures that prevailed in the subcontinent prior to the British invasion, women’s place in private sphere dictated that they never really found their place at the helm of resolving disputes as a chieftain or tribal elder.
The challenges faced by women in the public sphere of formal dispute resolution, therefore, trace their roots back to these earlier practices, customs, legal barriers and the public/private binaries that segregated the society and roles by gender.
Several legal barriers have recently been removed with commitments to gender equality in the constitution and international agreements thanks to the consistent and courageous struggle by women rights activists. However, the mindset that is a product of those earlier practices continues to prevail and plague the court environment even today.
This is the mindset that attempts to ‘remind’ women at every step of the way that perhaps they do not belong there. It is not their place to be or perhaps they are lost and don’t actually know what they are doing there so they must be ‘guided’ as a duty and be recommended where else they could go and utilise their time.
Unsolicited and uncalled for advice such as this is very common and starts as early as the minute a woman decides to study law. It starts at home from parents and family raising concerns about her going to ‘court kachery’, to teachers and even mentors whose job it seems is it to discourage a woman from considering legal practice and pursuing softer career options instead like research and teaching. If she insists, they would recommend corporate or in-house opportunities as the closest she should get to any semblance of legal practice because criminal law being a ‘hard’ area is supposed to be absolutely out of her league. How can she even mention it, let alone consider it!?
And yet, many women today have held their ground against all odds and have established their name in different fields of law, including in fields commonly considered to be suitable for men. Barrister Sarah Belal for instance, has done remarkably well to establish her name in the criminal justice sector representing most vulnerable prisoners on death row. Former justice Jamila Jahanoor Aslam has been a prosecutor NAB and was also the first female who was given right of audience before a Martial Law Court to appear before the Field General Court Martial. She won that case.
In spite of this, the general perception in courts continues to question the competence and presence of female lawyers who argue their cases. While recounting her experiences, a female colleague shared that her accent, medium of communication, her outlook as a seemingly more ‘westernized’ lawyer with a foreign degree add the class dimension to the existing gender paradigm, compounding her challenges as a practitioner. Her experiences appear to suggest that sexism has become more subtle and nuanced over the years whereas class-based differences in attitude and treatment have become more pronounced in recent years. Sexual harassment, sexist comments and a general disdain and disbelief in the women’s ability to plead a case often result in her having to be accompanied by her junior associate who has but one main advantage over her – his gender.
To have all of these ‘extra’ and ‘unnecessary’ things to think about – like her clothes, her hair, her make-up, her demeanour, her smile, her pleasantries, her gait, her accent, her language, her right to stand and argue the case, the staring and gawking, the giggling and banter and who would accompany her from amongst the junior male associates, on top of her actual legal point, her case, her client and arguments makes for an extremely challenging environment to step into.
All women who do so nevertheless, knowing fully well how each day is the same struggle for them to make their place and get past the gender and class-based challenges to finally argue the matter they are professionally engaged for, are akin to ‘baggage’ that law firms usually avoid being responsible for.
The environment in the courts, therefore, is a serious barrier for progression of women in legal practice. It is a double-edged sword in that, in the first instance, it serves as a basis to discourage women from pursuing legal practice at all. As a result, women are relegated to preparing cases and doing the legal research for their male counterparts to argue and present in courts when they could just as well be arguing it themselves and in the second instance, this relegation in turn, takes away the opportunity from the women to be known for their work and have the judgments in their name as counsel. This pushes them further back at the time of meeting the requirements for applying for licenses for the Supreme Court and partaking in elections of the Pakistan Bar Council and even from being considered for appointment in senior judiciary for instance.
Once when I was in court shadowing my senior for a case in civil court, the judge who was at that time in process of appointing local commission to record evidence in another case looked at me and assumed that I was there to record evidence. At that time, I didn’t know what the practice was and what it meant since I had just started out. My senior intervened and clarified that I was there for a case. Later however, they explained to me that many female lawyers do this as a matter of routine. While that is not an issue at all in terms of being an opportunity for women, it does however, highlight the acceptance of women within courts in specific roles much like we find acceptance of women in specific fields of law, such as in family law. These roles are usually at subordinate levels and women’s advancement in more representative roles is still jealously guarded by the men who are in the position of authority to bring more diversity on these positions.
Instead of doing better by taking steps to ensure more representation and inclusion of underrepresented groups by initiating programmes for people in earlier stages of their career to be trained, encouraged and informed about such advancement and opportunities in law that could improve the pipeline of candidates for being considered for such nominations and appointments, they very conveniently shrug the question by asking where the qualified women are. This is a statement coming from an extremely privileged and a lazy perspective.
In recent years, female lawyers have pushed back and have demanded reforms as well as safer workplaces and accountability through collective and individual actions. Leading in this regard have been the efforts of Women in Law Initiative Pakistan that has not only united over 400 female lawyers across Pakistan but has also made considerable impact in advancing the case for representation of women at the bench and bar.
They have consistently highlighted the lack of women’s representation in senior judiciary and wrote a letter in December 2020 under Right to Information demanding how many females had been considered for appointment in senior judiciary by the judicial commission of Pakistan since 2010. They successfully advocated for inclusion of female lawyers in the Journalists Defense Committee by the Pakistan Bar Council and have released a Charter of Demands 2020 asking for more inclusion and representation in decision making and leadership positions, safer workplaces, equal pay and equal access to public spaces.
In addition to that, they have curated and have secured support and patronage of the Federal Ministry of Law and Justice for increasing women’s representation in law by bringing visibility to women and their work in the legal profession. Under this project, they conducted a baseline study with detailed gender segregated data in four categories including judiciary, bar council members, advocates and prosecutors in Pakistan and launched the first digital portal and app of its kind lawyher.pk for female legal professionals that documents their achievements and connects them to anyone wanting to know where are the women so that one day, there are no excuses left not to consider female candidates for senior and /or decision-making positions.
Nida Usman Chaudhary is an independent legal consultant and lecturer working from Lahore on access to justice. She holds LL. B (Hons) and LL.M in Law and Development from University of London. She can be reached at [email protected].