Justice Ayesha Malik: Pak's First Woman SC Judge Who Shattered the Glass Ceiling

Until now, Pakistan remained the only South Asian country without a woman Supreme Court judge.

When Justice Ayesha Malik took her seat on the Pakistan Supreme Court bench on Monday, 24 January, she registered a rare victory for women's representation in the country. Joining 16 other male colleagues, Justice Malik became Pakistan's first ever female judge at its top court.

Until now, Pakistan remained the only South Asian country to have never had a woman take her place as a Supreme Court judge.

"As the first woman judge appointed to the apex court in the country’s judicial history, this is an important step towards improving gender diversity in the judiciary, where women reportedly account for only 17% of judges overall and just under 4.4% in the high courts,” the Human Rights Commission of Pakistan said in a statement.

Her appointment is interesting also because she is likely to become the senior most serving judge by January 2030 – making her eligible to become Pakistan's first woman chief justice.

Harvard Graduate, Lahore HC Judge

Born in 1966, the 55-year-old Justice Malik received her initial education from schools across Paris, New York and Karachi. According to the Lahore High Court website, Malik pursued law at the Pakistan College of Law in the city, and went on to pursue her LLM from Harvard Law School.

In 2012, Justice Malik was appointed as a judge of the Lahore High Court. Prior to this, she had practiced law worked in various capacities, including at law firms.

Justice Malik will now serve on the bench of the Supreme Court till the end of her tenure in 2031.

A Landmark 'Two-Finger Test' Verdict – With a Little Help From India

Justice Malik's nomination and appointment comes one year after she delivered a landmark judgment striking down the antiquated 'two-finger test' in sexual assault cases, which she called "scientifically unsound."

This 'test' is performed by inserting one or two fingers into a woman's vagina to test the presence of a hymen – to ascertain how sexually active a woman is. The test was carried out on rape survivors, and like she pointed, had no medical or scientific basis.

Pronouncing verdict in the Lahore High Court judge, Justice Malik said:

"It is a humiliating practice, which is used to cast suspicion on the victim, as opposed to focusing on the accused and the incident of sexual violence."

In her verdict, Justice Malik referred to the 2013 judgment of the Indian Supreme Court which had outlawed the two-finger test in India, as well as decisions of the Allahabad and Gujarat High Courts, to support her reasoning.

According to Deutsche Welle, she has been involved in several other significant judgments in the country, including enforcement of international arbitration in Pakistan and declaration of assets in elections (something which the Indian Supreme Court, for instance, had also had to step in to ensure in India as well).

“It has definitely broken the glass ceiling. This will have an impact on cases, not specifically those related to gender, but having a woman judge there will be increased confidence among women to access justice and reach out to the courts,” a digital rights lawyer Nighat Dad, told DW.

Controversy Over Appointment

While the decision to elevate her is historic, it was not all smooth sailing, with her nomination initially rejected in 2021.

Even after the judicial commission confirmed her nomination on 6 January, some bar councils of Pakistan protested her nomination, arguing that her elevation superseded those of four other more senior judges – with some lawyers threatening to go on strike if she was appointed.

However, five members of the nine-member Pakistan judicial appointments commission voted for her elevation, enabling her to shatter the glass ceiling.

As noted by journalist Kallol Bhattacharjee in The Hindu, this included support from the Pakistan Attorney-General, indicating a deliberate decision by Imran Khan's government to ensure her elevation even at the cost of superseding other judges..

The move has been welcomed by women lawyers in Pakistan for its importance in countering religious orthodoxy in such matters.

"If women continue to be shackled by patriarchy and regressive interpretations of Islam, we will continue to not progress in terms of developing the human capital required to succeed nationally and globally," Islamabad-based lawyer Zameeneh Rahim told The New York Times.

(With inputs from The Hindu, DW, The New York Times)