Latest news with #JusticeShah
Express Tribune
29-03-2025
- Politics
- Express Tribune
Marital status no bar on women's rights: SC
The Supreme Court has ruled that a married woman remains an equal child of her deceased parent as their other children, and to deny her entitlement on the basis of her marriage is tantamount to denying her constitutional identity as an equal citizen. Supreme Court Justice Syed Mansoor Ali Shah said that any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also religiously unfounded, and contrary to the egalitarian spirit of the Islamic law. A division bench of the apex court, led by Justice Shah, ruled on the petition of a female schoolteacher, Zahida Parveen. Justice Shah authored a nine-page judgment, which directed the respondent-department to restore her appointment with all back benefits. Petitioner Zahida Parveen was appointed as a primary schoolteacher under the deceased son/daughter quota on March 17, 2023. However, the district education officer (Female), Karak withdrew the appointment order without issuing a show-cause notice. The petitioner's service was terminated because of on a "clarification" which stipulated that the benefit of appointment under the deceased son/daughter quota was not available to a female, who had contracted marriage. "The exclusion of married daughters from compassionate appointment [ ] is declared to be discriminatory, ultra vires, issued without lawful authority, and incompatible with Pakistan's constitutional guarantees and international legal obligations," the court ruled. "The respondent-department is directed to restore the petitioner's appointment with all back-benefits," it said. "As constitutional subjects, women are entitled to equality not only in result but also in the form, tone, and respect with which the law addresses them." The bench noted that all judicial and administrative authorities bore a constitutional responsibility to adopt gender-sensitive and gender-neutral language. "The judiciary must lead by example, ensuring that the words used to interpret and apply the law do not themselves become instruments of exclusion." The judgment declared: "This is not a mere formality, but reflects a substantive commitment to the values of dignity, equality, and autonomy guaranteed to all citizens under Articles 14, 25, and 27 of the Constitution." It said that women were autonomous and rights-bearing citizens in their own right and not by virtue of their relationship to a man, be it father, husband, or son. It added that financial independence was not a privilege but a necessary precondition for the full realisation of citizenship, autonomy, and personhood. "A married daughter remains equally a child of her deceased parent, and to deny her this entitlement on the basis of marriage is to deny her constitutional identity as an equal citizen. It bears mentioning that the principle of a woman's financial independence is not only grounded in the constitutional text but is also firmly embedded in the Islamic legal tradition," said the judgment. "Under Islamic jurisprudence, a woman retains full ownership and control over her property, earnings, and financial affairs, irrespective of her marital status. Therefore, any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also religiously unfounded, and contrary to the egalitarian spirit of Islamic law," the judgment continued. "This arbitrary classification is thus not only unreasonable but plainly unconstitutional, offending the guarantees of equality (Article 25), non-discrimination in public service (Article 27), and the right to dignity (Article 14). It also undermines the expectations of deceased civil servants whose families were assured of lawful security under the compassionate appointment framework." Consequently, the judgment stated, the impugned clarification and the letter dated April 28, 2023 was liable to be struck down for being ultra vires, discriminatory, and constitutionally repugnant, adding that when the basic order was without lawful authority, the entire superstructure raised thereon fell to the ground automatically. The court declared that the exclusion of married daughters from the ambit of the Rule 10(4) of the Khyber-Pakhtunkhwa Civil Servants (Appointment, Promotion, and Transfer) Rules, 1989, was not merely a procedural irregularity, rather it revealed a deeper structural flaw grounded in patriarchal assumptions about a woman's identity and her role within the legal and economic order. According to the judgment it was presumed that a woman, upon marriage, relinquished her independent legal identity and became economically dependent on her husband, thereby forfeiting entitlements available to similarly situated male counterparts. "At its core, this exclusion constitutes a denial of a woman's right to financial and economic independencerights that are not ancillary but essential to the exercise of constitutional personhood. The Constitution guarantees rights to individuals, not to marital units or prescribed social roles," it said. The order also said that the rationale underpinning the impugned clarification represents a constitutionally impermissible revival of the discredited common law doctrine of coverture, under which a woman's legal existence was subsumed into that of her husband. "Contemporary constitutional jurisprudence has firmly rejected such notions, affirming that marriage neither extinguishes a woman's legal personhood nor curtails her entitlements under the law. Any policy or executive clarification that seeks to reintroduce this logic under the pretext of marital dependency violates the core constitutional guarantees of dignity, equality, and non-discrimination," the court said. The judgment warned that excluding married daughters from compassionate appointment under the Rule 10(4) not only violated Pakistan's constitutional framework but also breached its international legal obligations, particularly, those under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Articles 2 and 11 of CEDAW explicitly prohibited discrimination in employment on the basis of sex and marital status, the judgment noted, adding that the CEDAW committee had repeatedly underscored that laws and administrative practices rooted in cultural stereotypes or customary norms eere incompatible with the state's duty to secure substantive gender equality. The court also expressed concern over the language used in the impugned judgment, particularly the phrase "a married daughter becomes a liability of her husband," saying that such language was not only factually and legally erroneous, but also deeply patriarchal, reinforcing outdated stereotypes that were fundamentally incompatible with constitutional values. "The use of gender-biased language by judicial or administrative bodies does not merely reflect prevailing social prejudices, it perpetuates and legitimizes structural discrimination, and risks encoding bias into the law itself," the judgment warned. "As constitutional subjects, women are entitled to equality not only in result but also in the form, tone, and respect with which the law addresses them." In this context, the judgment said, the Feminist Judgments Project undertaken in several jurisdictions, including Pakistan, had demonstrated how judicial reasoning could be reframed through a feminist lens, applying existing legal principles, while eschewing gendered assumptions and incorporating inclusive, equality-affirming language. "The core premise is clear: how law is written matters as much as what it decides."
Express Tribune
28-01-2025
- Politics
- Express Tribune
Justice Shah in the eye of the storm amid deepening SC cracks
ISLAMABAD: As cracks deepen within the Supreme Court and the constitutional bench expresses visible discontent over the regular bench's initiation of contempt proceedings, legal experts believe Justice Syed Mansoor Ali is caught between internal strife and 'external malignant' forces. Former additional attorney general Tariq Mahmood Khokhar opines that Justice Shah's presence on the bench has incited fear within certain quarters. "His nemesis is the illusion of the establishment. They are petrified that the senior puisne judge has an agenda," Khokhar said. Khokhar elaborated that certain forces believe Justice Shah aims to undo the 26th Amendment, nullify unrepresentative legislatures and ordain the rule of law, judicial independence, and parliamentary democracy. He further noted that it was also anticipated that Justice Shah may deliver justice to incarcerated former prime minister Imran Khan and his embattled party, PTI. However, he noted that such fears were implausible for an institution under their control. He dismissed such notions, saying that Justice Shah is "neither a revolutionary nor does he seek martyrdom or confrontation with the establishment." Instead, he described him as "a learned, honourable, honest, conscientious and decent man of impeccable integrity" committed to delivering justice per his oath and the Constitution. "We have a national crisis, national tragedy or national farce based on delusions," Khokhar added. A flawed strategy? However, not all legal experts agree with Justice Shah's approach to addressing issues related to the 26th constitutional amendment. A senior lawyer, while choosing to remain anonymous, criticised Justice Shah's strategy, warning that it risked alienating fellow judges instead of fostering unity. "In my opinion, the strategy adopted by Justice Shah is flawed. It will offend and divide judges when they need to be united. There is also no reaction from the lawyers or public pressure. In such matters, a well-thought strategy is essential," he said. Meanwhile, some lawyers are critical of the constitutional bench for overturning judicial orders issued by the regular bench. The lawyers allege that efforts were underway to isolate Justice Shah within the SC, potentially forcing him to resign. It is noteworthy that Justice Shah's relationship with former CJP Qazi Faez Isa and his like-minded judges took a turn for the worse after the reserved seats case judgment. The ruling ultimately sealed the deal on Justice Shah not being appointed as the next CJP. The majority of ex-CJP Isa's like-minded judges now sit on the constitutional bench, further complicating matters. A number of judges also lent their support in pushing through the 26th Amendment, giving it a helping hand when it counted. Barrister Asad Rahim Khan states that despite the introduction of bizarre committees-within-committees by recent laws aimed at undermining judicial independence, Justice Syed Mansoor Ali Shah has issued an exceptionally well-reasoned order. This order correctly applies precedent, distinguishes between judges and administrators, and meticulously grounds itself in the law. "After an entire year of reading Qazi Faez Isa's legally incoherent decisions, an order of this quality feels like rain in the desert," he remarked. Khan further asserts that it has become evident to all that random administrative directives cannot bypass judicial declarations. While the case pertained solely to jurisdiction, it should be noted that the ongoing crisis will persist until the full bench resolves the fate of the 26th Amendment. The longer this remains undecided the more time the executive has to mass-appoint judges to the superior courtsa trend that must not influence the amendment case.
