On June 27, 2004 a woman
judge appointed by the Pakistan Peoples Party government
to the higher judiciary retired from the Lahore High Court.
Justice Fakhrunissa was entitled to the Chief Justiceship
of the Lahore High Court. Pakistan’s law stipulates
that the senior most judge is to be made the Chief Justice.
The Musharraf dictatorship refused to allow the law to
take its course demonstrating bias against women.
The Supreme Court of Pakistan ruled, “The most senior
judge in the High Court and the Supreme Court has a legitimate
right to become the Chief Justice of that respective court
(PLD 2002 Supreme Court 939). It was in the year 2002
that Justice Fakhrunissa became the senior most Judge
in the Lahore High Court. To stop her becoming Chief Justice
the regime refused to fill the vacancies in the Supreme
Court of Pakistan. Filling in the vacancies would mean
elevating the Chief Justice of Lahore High Court and creating
a vacancy for the lady Judge to fill.
It took 58-years of Pakistan history for a lady to attain
the right to be appointed Chief Justice. The legal and
constitutional requirement for appointment of Justices
and Chief Justice was violated by the Musharraf dictatorship
to stop a lady becoming the Chief Justice of Pakistan’s
largest province. Moreover, the fundamental in Article
25(2) of Pakistan’s Constitution stipulating that
there shall be no discrimination on the basis of gender
was also violated. Unsurprisingly, women were appointed
to the judiciary in the PPP governments and the law against
gender discrimination was passed by Prime Minister Zulfikar
Ali Bhutto.
Justice Fakhrunissa was elevated to the judiciary in 1994
under the democratically elected PPP government. The violation
of constitution and law in denying Justice Fakhrunissa
her right to assume the Chief Justiceship of the Lahore
High Court is a black day in the history of Pakistan.
It is part of the dictatorship’s systematic attack
on justice and women’s rights.
Upon assuming office, Islamabad’s military dictatorship
ordered all judges to take a fresh oath of allegiance
to its own law (the Legal Framework Order) over-riding
the oath taken to defend the Constitution.
Second, it removed the Supreme Court Chief Justice and
half its Judges as well as others in the High Courts.
The International Court of Justice criticized this action.
The regime refused to fill vacancies in the Supreme Court
of Pakistan fearing that the filling of the vacancy would
mean that Justice Fakhrunissa would either be accommodated
as Chief Justice Lahore High Court or elevated as member
of the Supreme Court.
The result of this violation is that Pakistan has been
denied a woman Chief Justice. If a lady is now appointed
to the higher judiciary, it would take more than a decade
for her to reach the seniority to become Chief Justice.
The actions of the Musharaf dictatorship are a serious
blow to the independence of the Judiciary, to the rise
of women to positions of importance and to the principle
of equality between genders. It is for this reason that
so many in Pakistan give their lives for democracy believing
that it is democracy alone that can move Pakistan on to
the path of moderation and progress.
