In conversation with Justice Ayesha Malik – Judge of the Lahore High Court in Pakistan

Justice Malik, thank you for taking the time to speak with us today. In a couple of sentences, how would you describe yourself?
I’m very passionate about my work, about anything I bring close to my heart. I’m highly disciplined and like things to be managed in an orderly manner. If I have a cause and I believe in it, I am very motivated by it. My children think I don’t have a sense of humour, but I think I do, and I always enjoy a good laugh.

What did you want to do when you were younger?
Since I was young, I’ve always wanted to be a lawyer. I used to think of myself as this famous lawyer, probably solving murder cases. I was perhaps inspired by Perry Mason, a criminal defence lawyer and fictional character in books I used to read as a child. As time went on, I became interested in decision and policymaking. I thought that with a law degree, I could get involved in that. Eventually, I discovered that my passion was litigation. I never thought about being a judge and adjudicating. However, when it came my way, I thought about it and saw it as another way to make a difference.

Who was the most influential person in your life?
I don’t have a role model or famous person that inspired me. My father has always been the person who motivated and encouraged me to think big. He encouraged me to make a difference. He said: “One day when you get the chance, make your presence felt.” And that’s what I have lived by.

For becoming a judge, a whole series of people encouraged me. Two left a mark. Fakhruddin G Ebrahim, a senior lawyer with whom I worked said to me: “You’ll never know until you try it.” He always believed in me and encouraged me, saying: “You’re there to make an impression”. The second one is my husband. He said: “You may be the first of many, but you’ll always leave behind this legacy of being the first. So don’t give up the opportunity, you have a role to play, and you should play it.”

Looking back what kind of impact do you think you have had?
When I was elevated, I was the only women judge in the Lahore High Court. Statistically, even counting all of us together, we are only 5 in all the country's high courts. The biggest way I’ve had an impact is that I’ve become a voice. I'm there to call out the discrimination, call out stereotyping, and bring out the gender perspective. I'm the voice that nudges, reminds, and suggests ways to improve ourselves and make our system more inclusive.

For example, in superior courts, judges generally refer to each other as brother judges since most judges are men. I had to always mention that I'm not a brother judge. That I'm, if at all, a sister judge, and so this would bring on a debate on gender. And even today, at times, I need to make my presence felt and say that you keep me out of the narrative by using brother judge, so please include me by using the brother and sister judge’s terminology.

How are you changing the role for women in the criminal justice sector?
By being the voice, the objective has always been to help change the narrative, change the mindset, and make the vocabulary more inclusive. It’s not only about women, but it’s also about vulnerable people. We now have cases about transgender people in our courts. We need to know how to address them. We need to be gender-sensitive. I put together conferences and encourage training. I have asked many times why the federal judicial academy doesn’t have any gender sensitivity training and why they ignore this. Even now, the decision-makers are all men, so we must put the gender perspective in front of them for them to consider it.

What would you tell people that might have underestimated you or underestimate women in general?
My answer to that has always been: I say less, and I do more. I encourage women, lawyers and even judges who feel that it's unfair sometimes to look at it with an open mind and create space. The system has yet to learn how to deal with issues from housing to dealing with children, and transfers and even bathrooms and workspaces. We’ve been saying things for a long time. Now we need to show that these women are there to make a difference and because it’s necessary. Eventually, the system cannot overlook them and ignore them. I also discuss with my male counterparts that we have different roles to play. When I go home, I'm not just Justice Malik but also a mother, wife, and daughter. I have a series of responsibilities that await me. I explain what I’m willing to do and what I’m not ready to do, and why. I'm a very hands-on mother, I have never missed a parent-teacher conference or a play, and I don’t take time off from work. So, as I said, I do more and show them that I can do it.

Do you have a motto you live by?
I don’t have a motto. I basically believe in three things: hard work, fairness, and perseverance. I tell my children, work hard, keep at it. One day it will make a difference. The gender issue is all about community. You must keep in mind that as you open one door that there is a line behind you. Don’t just open the door for yourself. Step in and close it. You must keep it open for others, and that’s the tricky part.

What is your attitude when you are faced with a challenge?
I like to give things a positive spin, rephrase the narrative, reason it out, and be a little assertive if required.

On a professional level, we try and bring forward the gender perspective. This led to gender-based courts. We highlighted the need for these, explaining that women who have stories to tell need a better environment to do so. Now we must constantly remind everyone that we need to bring women into the justice sector. We must consider women candidates for the high court, even if they conclude they don't have the merit, but women must be considered. In Punjab, we have district and sessions judges, but only 1 out of the 36 districts is run by a woman. I'm like a broken record constantly questioning why is it 1 to 35. We must never give up, never look back. Women in the system need to know, it's not just about you. You must pave the way. These may be our struggles today, but hopefully, those after us will walk this path comfortably.

On a personal level, it's about my space. Certain tradition may require change if you want to bring women into the profession. We have a system here, where the high courts have benches outside of Lahore city. All judges must rotate and sit on different benches. When I was elevated, this was an issue for me because my kids were young. I was the central figure of my home. I thought, if I'm away, how will it all work? I struggled with that and showed the leadership that it didn't make sense for me to go. I reasoned with them and pointed out issues. And sometimes, I would just get assertive and say that it's just not conducive for me to go there. I knew I didn't want to be in an all-male living environment, which I would have had to be in if I had gone. So, I said to myself, they need to consider these points, and I shouldn't be forced to do things just because that's how it was always done. They’ve worked on this and acknowledged that there are problems in the system. We pointed out that there should be separate housing for women. We ensured that spaces for women are now included in construction plans.

What steps have you taken within the criminal justice sector to address the gender dimension?
Apart from training, the conferences for women judges are key. The first was about getting male leaders to listen to female judges, so issues women working in the judiciary face echo in their minds. The conferences after that really focused on the role female judges play and why we need better representation. This matters when we consider trafficking in persons cases, domestic violence cases, transgender cases, or gender-based violence cases. Women judges have a role to play.

I'm also passionate about developing gender-sensitive language. I always say: “I'm not a 'he', I'm a 'she'. And I'm not he/she.” And moreover, if we’re not sure, then let's use 'they'. Developing neutral and sensitive language matters. It matters when you describe an offence. It matters in terms of avoiding moral and/or value judgements. It matters in terms of stereotyping. We put together a presentation showing how not using gender-sensitive language has adverse effects. When judgements are written by men about women, every word you say is important and shows the mindset of society. So, if you keep narrating the same thing repeatedly, e.g., her clothes weren't appropriate, why was she out late at night, etc.? You’re just perpetuating the stereotypes. We need to respect the litigant and address them with respect in our judgements.

Can you tell us about a time when you have been involved with a trafficking in persons case?
I've not directly overseen trials that involve trafficking in persons as my court is a constitutional court. Still, I have seen cases that involve trafficking, and these have highlighted many of the sensitive issues. I also attended a conference held by the Vatican on trafficking in persons for the purpose of organ removal and sex trafficking. By following these events, we get a good feel for the issue, and I understood how we all face the same challenges when faced with these cases. Our approaches might be different when dealing with them, but the root causes are very similar.

To address challenges, we’ll need more training. The key is to learn how to look at a complex chain of events often present in trafficking cases. The system is still learning to deal with them, but we’re taking steps in the right direction. The gender-based violence courts are a definite step in the right direction. Work on these courts began in Lahore in 2017, then was further elaborated on and became a district requirement. Eventually, the provision for these courts to be set up throughout the country was adopted by the then Chief Justice. In terms of understanding their impact, we simply don't have enough data yet. I'm keeping an eye on the ones in Punjab; however, judges often rotate, which is a challenge as trained judges are moved out of the gender courts. But it's a starting point, and we keep trying to improve the system.

Looking ahead, do think the role you are playing might inspire others to seek change?
I think, in some way, my story is having an effect. I was recently invited by the Sindh high court bar council. A different bar from another province inviting me to come and share my experience as a woman judge was a first. They asked me to speak to young female and male professionals working in the justice sector. That’s really about making a difference. The story travels, and somebody out there wants to make a difference and listen to it.

Recently, I listened to a young policewoman telling her story. Her story was so moving. The pride she expressed in her work was inspiring. She said she was never going backwards, only forward. The more stories are out there, the more people listen. I believe that it must make a difference. There is a whole new generation out there, all excited and ready to go. That generation will lead the way, and I think that can be plotted against the success stories of those women and men who came before them.

My own experience has been nothing but positive. I wouldn’t change anything. If you make a slight difference, I think that’s good enough.

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Justice Ayesha A. Malik was elevated as Judge of the Lahore High Court, Lahore in 2012. She hears constitutional petitions on a large variety of issues including tax, environmental, and regulatory matters. She has decided on important issues pertaining to the empowerment of women, the right to vote as well as against maintaining a women quota in government departments and medical colleges. Recently she declared the two finger test as unconstitutional holding the practice of virginity testing in rape cases as illegal. On the administrative side, she has been involved in case management and the use of information technology at Lahore High Court Lahore as well as in the District Judiciary to oversee the pace of litigation for effective and speedy dispensation of cases. She has chaired the Judicial Officers Female Supervisory Committee which looks at all issues related to female judicial officers. As a member of the Board of Punjab Judicial Academy, she helped develop courses on gender sensitization of court processes and training for gender based violence cases. She initiated the first Punjab Women Judges Conference in 2016 and has successfully held three such conferences in which the IAWJ participated in the year 2017.