Imran Khan<\/a> said recently that it was \u201ccommon sense\u201d that \u201ca woman wearing few clothes\u2026 will have an impact on the man\u201d.<\/p>\nThe elevation of Justice Malik comes against this background.<\/p>\n
\u201cPM Imran Khan has greatly exacerbated the dismal situation of gender-based violence by his statements. Let us hope Justice Ayesha Malik\u2019s judgments will help rectify the imbalance to some degree,\u201d says Tahira Abdullah, a leading rights activist and a member of the Women\u2019s Action Forum of Pakistan.<\/p>\n
In her most famous judgment, Malik had in January 2021 ruled against the controversial \u2018two-finger\u2019 virginity test for rape victims. In the Sadaf Aziz vs The Federation case, she ruled that \u2018virginity\u2019 could not be a determining factor in rape, and that there was no scientific or legal basis to the hymen test.<\/p>\n
Quoting from the Supreme Court of India\u2019s ruling in Rajesh & another v State of Haryana, as well as other judgments in the Gujarat and Allahabad High Courts, Malik said: \u201cThe virginity test by its very nature is invasive and an infringement on the privacy of a woman to her body\u2026 The conclusion drawn from these tests about a woman\u2019s sexual history and character\u2026 leads to adverse effects on the social and cultural standing of a victim,\u201d Malik ruled. \u201cWhat it does is place the victim on trial in place of the accused\u2026 even the most promiscuous victim does not deserve to be raped.\u201d<\/p>\n
In an undated interview published on the website of the United Nations Office of Drugs and Crime, Malik, at the time in the Lahore High Court, says: \u201cThe biggest way I\u2019ve had an impact is that I\u2019ve become a voice. I\u2019m there to call out the discrimination, call out stereotyping, and bring out the gender perspective. I\u2019m the voice that nudges, reminds, and suggests ways to improve ourselves and make our system more inclusive.\u201d<\/p>\n
The gender issue, she says, is all about community. \u201cYou must keep in mind that, as you open one door, there is a line behind you. Don\u2019t just open the door for yourself, step in and close it. You must keep it open for others, and that\u2019s the tricky part.\u201d<\/p>\n
A mother of three, Justice Malik has her own take on the struggles of being what Khosa called a \u201cshe-judge\u201d among \u201che-judges\u201d, including finding the right work-life balance. In the UN interview, she recalls that in 2012 when she was appointed to the Lahore High Court, she was the 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 \u201cbrother judges\u201d excluded her.<\/p>\n
Malik doesn\u2019t feel the need to heed to Khosa\u2019s other advice, of amiability. Many describe her as \u201cshort-tempered\u201d, and \u201cnot popular\u201d.<\/p>\n
However, she is clear that her work is not a popularity contest. In January 2019, Malik was nominated to head a four-member committee set up by the Lahore High Court to hear complaints of women judges in district courts in the Punjab province against hooliganism by lawyers. In 2020, she was reported to have ticked off a lawyer for not keeping his mask on in court.<\/p>\n
In the UN interview, Malik says her way of creating her \u201cspace\u201d was to \u201csay less, do more\u201d. She has never missed a single parent-teacher meeting at her children\u2019s school, but has not had to take 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.<\/p>\n
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 \u201ca hands-on mother\u201d, and the \u201ccentral figure\u201d of her home, and did not want to be in an \u201call-male living environment\u201d for any length of time. But, she says, \u201cI do more and show them that I can do it.\u201d<\/p>\n
As celebrated as Malik\u2019s elevation to the Supreme Court has been, it has also divided the legal community, as well as women\u2019s activists. She superseded four others \u2014 all men \u2014 in the Lahore bench, apart from others in the four High Courts, including a woman judge. This has become a sticking point, though there is no rule that the seniority principle be followed in appointments to the Supreme Court.<\/p>\n
Malik\u2019s candidacy for the Supreme Court was first taken up in September 2021 by the nine-member Judicial Commission of Pakistan, that appoints judges to higher courts. Lawyers, responding to calls from bar associations, alleged favouritism and a plot to create a rift among the judiciary. In the end, Malik\u2019s appointment failed to go through.<\/p>\n
It was taken up again on January 6, 2022. While this time too lawyers mobilised against the move, the Chief Justice refused to blink. Malik was selected, but with four of nine opposing the appointment.<\/p>\n
Justice Faez Isa, a member of the commission, who has taken on the powerful military in his rulings and earned its wrath, has been among the most vocal against Malik\u2019s appointment. He had sought a discussion first on the criteria for appointments to the Supreme Court before considering Malik\u2019s name.<\/p>\n
A cautious statement by the Women\u2019s Action Forum of Pakistan welcoming Malik\u2019s appointment also called for reforms and transparency in judicial appointments, \u201c\u2026 with the equal inclusion and participation of women across the board\u201d.<\/p>\n
Tahira Abdullah says it is sad that a historic moment has a cloud over it. \u201cIt is a giant step towards that elusive goal of gender equality and gender justice. I just wish Justice Malik\u2019s appointment had not become so mired in controversy, both politically as well as in terms of the raging debates on Constitutional\/legal interpretation,\u201d she says.<\/p>\n
Nazish Brohi, a writer and researcher on violence and conflict, also makes the same point. Welcoming Malik\u2019s appointment as \u201cnot just a token representation for women\u201d, Brohi adds that it didn\u2019t lessen the need for reform in judicial appointments, to make the process less arbitrary, more inclusive, an acknowledgment of merit. \u201cFor the women\u2019s movement the question is why make Ayesha Malik the lynchpin of this debate. We should support the lawyers\u2019 demand for reform without putting Justice Ayesha Malik at the centre of it,\u201d Brohi says.
Some have wondered about Malik\u2019s political leanings, given how she was appointed and Justice Isa\u2019s opposition. However, her work has largely coalesced around gender.<\/p>\n