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MEET THE CAGE RATTLER
Ayesha Malik, Pakistan’s first female Supreme Court Judge, talks of the importance of gender perspective in a masculine environment.
Once upon a time there was a little girl who found herself becoming more immersed in the fictional world of Perry Mason, an American defence lawyer created by the author, Erie Stanley. So entranced was this child by the courtroom dramas she was reading about that she decided she wanted to follow in Mason’s footsteps and fight for human rights and be an instrument of change.
For many this would not be an impossible dream. Except that little girl was from Pakistan. A country where even today only 12% of its lawyers are female. There are only five women judges in the High Courts among around120 men. In the district judiciary, things are a bit better (around 10%) but still far from where they should be.
But Ayesha Malik has always been someone determined to make dreams reality. Encouraged and supported by her family to follow her heart’s desire, Ayesha was educated in New York, London and Paris and after getting a Bachelor of Commerce degree in Karachi and a Law degree from the Pakistan College of Law, she took her Masters at Harvard where she was honoured a London H. Gammon Fellow for outstanding merit.
Ayesha is all about hard work. And it has paid off. Such credentials should inevitably lead to a glittering career - and, indeed they have. But, as a woman in Pakistan, the journey was far from being smooth.
Her early years were spent at Fakhruddin G. Ebrahim where she met the eponymous man who was to be her inspiration and role model. (Needless to say female role models did not really exist.)
“He never believed that there was anything you couldn’t do and encouraged me to always try - and if it went wrong, we could always fix it later. When I was asked later down the line to become a judge, he called me to tell me I could not say no.”
From Fakkhurdin G. Ebrahim Ayesha went to Rizvi, Isa, Afridi & Angell where she became a partner, ran their Lahore office and headed up the Corporate and Litigation Department.
In 2012 she was appointed Justice of the Lahore High Court and at the time the Chief Justice told her she was entering a “male cage” and he couldn’t think of a better person to come in and rattle that cage. And rattle she did.
From the get go, Ayesha spoke up about everything from the lack of bathrooms and housing for women, about making the entry process more inclusive and gender sensitivity; to show that it is perfectly acceptable for someone to think differently and to bring an alternate perspective (which just happens to represent 50% of the population) - and not at all acceptable that the judiciary refer to themselves collectively as ‘brothers’. A ‘sister’ had entered. And she was to make her presence felt.
Ayesha made history with her ruling on the two finger test where she abolished a primitive and appalling practice whereby two fingers were literally inserted into the vagina of rape victims to test laxity and for the presence of a hymen to determine whether or not the victim was ‘habituated to sexual intercourse’. As if the woman had not been traumatised enough, this test was a further affront, insult and invasion. Ayesha talks of how this procedure was “biologically and medically insane” but was just accepted. It took a woman judge to question it.
“We live in a system which has been made by men; whose rules and laws have been made by men - and we just implement them almost mindlessly.”
In 2022 Ayesha became the first female judge to be appointed to the Supreme Court; a truly outstanding achievement and one that, whilst highly unusual in the 75 year history of Pakistan’s Supreme Court, is just the latest in a long line of successes that Ayesha has had throughout her life.
Lack of inclusion is something Ayesha feels very strongly about. We are seeing an increase in Pakistan of women in the justice sector - more lawyers, more police and more prosecutors. Women are even joining the district judiciary because that is something that is done by way of an exam. But in the superior judiciary; the High Court and the Supreme Court, these appointments depend on nomination and the appointment process generally fails to consider women. Ayesha’s own appointment testifies to this.
Never before was there a nationwide protest against an appointment. Ayesha was nominated by the Chief Justice in August 2022 and a judiciary commission had to vote on the nomination.
“At the time I was ranked four in terms of seniority and the majority felt the most senior judge should be chosen instead of me. In the past there had been many such appointments with no objection. The vote was deferred when the Chief Justice realised I would not have got the required numbers.. He explained he had chosen me not because I was a woman, but on merit and demanded to hear valid reasons why I should not be appointed. Six months down the line I got five votes in my favour and four against.”
Ayesha believes all this is not just because she is a woman per se but the reasons are more nuanced in that her male peers did not really understand who she was and what she stood for in the same way that they could comprehend and relate to those of the same sex.
“They didn’t know what my baggage was all about and that bothered them. They couldn’t see how I would fit into a system which was very much masculine.”
Ayesha was known to be both independent and assertive so nobody knew how to manage her. Fearless and determined she stood her ground, used her voice - and made a difference.
“When I first came to the Supreme Court, there was a judgement written by my colleagues on harassment which they interpreted as having to be sexual. I was shocked by this concept being so narrowed and reduced. I recognised that the reason they did not really understand what harassment means from a gender perspective. When the judgement was being reviewed, I was told that my writing would be considered but it was not felt that there would be a change of heart and mind. I poured my heart and soul into trying to fully explain what harassment is. My colleagues came back and said they had been wrong, Thet simply had not been able to see it from a female gender point of view. It is in moments like this that I feel I am making a difference. That there is a gender perspective and that you cannot just prescribe a standard and expect women to fit into it.”
It could have been a lonely journey in this predominantly masculine and tough environment but Ayesha found like minded allies when she joined the International Association of Women Judges. She could ask questions, voice concerns - and she found that she was no longer alone and that she got answers.
“It was like a warm blanket that embraced me. I heard my questions and fears echoed. And together we found strength and solutions. I learned I do not have to shy away from being a woman, or from being feminine. I am a woman and I bring my experiences to the table.”
Ayesha is as devoted and dedicated to her family as she is to her career; she is a wife and a mother to two boys and a girl. She says her husband is her guiding light helping her to “block out the noise and find a way forward’ and her children are like her guardian angels. They have been her primary and constant support throughout her career.
Ayesha believes her role in life is to be the voice that calls out discrimination and stereotyping, the lack of fairness and inclusivity. She also sees the fact there are so few women in her profession as a means to attract attention and to have a platform to speak.
It seems the little girl who longed to do as much as Perry Mason finished up doing a lot more than him - and in the real world too!
Maroulla Paul
March 2024