The Senate Standing Committee on Law and Justice discussed the other day the Bill moved by Senator Babar Awan for elevating women judges to the Supreme Court (SC) according to a fixed quota.
Senator Awan’s Number of Judges (Amendment) Bill 2016 sought to reserve one-third or six seats in the 17-judge SC specifically for women.
A previous Bill on the same lines was rejected by a standing committee on the basis that there could not be a quota for women judges in the SC, as judges were elevated to the SC from the high courts.
However, there is no bar on the appointment of women judges to the SC per se, as affirmed to the committee in writing by Minister for Law and Justice Zahid Hamid, citing the provisions of Article 177 of the Constitution that does not make any distinction on the basis of sex.
The sense of the committee discussion was that the idea of a quota is in any case premature as there are not enough women in the judiciary.
The National Commission on Status of Women secretary’s contention that women must be made part of decision-making as there was a great deal of violence against women, while unexceptionable in principle, seemed logically misplaced as most such cases are adjudicated at the level of the lower courts and rarely find their way to the SC in appeal.
On the other hand MQM MNA Dr Nikhat Shakeel Khan’s fresh Bill to be introduced for the elevation of women judges to the Islamabad High Court makes sense since it is only by reversing the paltry proportion of women judges in the High Courts of 5.8 percent that the situation can be improved.
It is a fact that no woman has been elevated to the SC or appointed the Chief Justice of a High Court to date. The Supreme Court Bar Association president Ali Zafar however opposed the very concept of quotas as the antithesis of merit, which should, in his opinion, be the only criterion for appointment or elevation of judges, up to and including the SC.
The idea of affirmative action to encourage the historically received disadvantages of marginalized and deprived groups or communities is good in principle. This is the logic of reservation and quotas for disadvantaged groups or communities.
It has been practised in India in the case of scheduled (considered backward or underdeveloped) castes and tribes.
In Pakistan, it has manifested itself in reserved quotas in jobs and education on an ethnic-urban-rural divide basis in Sindh and in the reservation of seats in the assemblies for women, technocrats, specialists, experts and special interest groups such as labour.
However, the quota in Sindh has caused and continues to cause much resentment and heartburn on the ground of being anti-merit.
As far as reservation of seats in the assemblies to encourage the participation in political life of women and other under-represented and marginalized groups is concerned, in practice it has proved to be a process at the mercy of the ‘mother’ political parties that have complete say in the candidates put forward for such seats, thereby fundamentally negating the idea of affirmative action and trumping it through patronage.
Provincial quotas for jobs at the federal level and educational opportunities in the best institutions too ignore merit under the umbrella of an overarching provincial quota. If we take Punjab as an example, it is obvious that any quota it enjoys will unduly favour a city like Lahore at the expense of citizens from smaller cities and towns, not to mention a rural milieu.
One possible cure for this historically received ‘natural’ bias in favour of more developed areas, groups and communities may be to recast such provincial quotas by fixing them at the district level while allowing various districts to compete for scarce opportunities to balance the concern for the less developed with some element of merit.