June 26, 2004
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 Musharaf dictatorship refused to allow the law to take its course demonstrating bias against women.
The Supreme Court of Pakistan ruled that “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 Musharaf 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.