This is a caption.
Goddess Amani

The presence of women in the judiciary, especially in high positions, although has had a growing trend in recent decades, women still face numerous challenges, particularly in occupying high positions in this branch, such as in the supreme courts of various countries and even in the position of judges.

According to the statistics of 2015, the countries with the highest number of female judges in supreme courts are Bulgaria, Lithuania, Luxembourg, and Romania, respectively. The countries at the bottom of this table are Armenia, Azerbaijan, Japan, Russia, Tajikistan, and England. It should be noted that the statistics in this table do not include all member countries of the United Nations; it only includes 76 countries.

In the fourth forum of the International Commission of Jurists, held in 2013, 65 female judges, lawyers, and human rights defenders from over 40 countries, especially from the Middle East and North Africa, participated to discuss the challenges faced by women in the judicial system of various countries in these regions. The reality is that women do not hold a proper position in the judiciary in any country in the world, although the most significant challenges can be seen in the Middle East and North Africa.

One of the paradoxes and serious gaps in these countries is that although more than half of law graduates are women, women have a limited presence in high positions in the judiciary, especially as judges in these countries.

Participants from Middle Eastern and North African (MENA) countries emphasized the importance of judicial independence. They stated that if this branch of government does not have transparency, independence, and effective implementation of justice for all citizens, “the house will collapse from its foundations.” Additionally, participants emphasized that the judiciary and its gender composition at all levels should represent women’s knowledge, talents, and creativity. In fact, women’s participation at all levels of the judiciary will not only ensure the realization of justice for all citizens, but also guarantee women’s access to independent courts free from political and ideological discrimination, and have a significant impact on women’s conditions in society as a whole. Experiences from various countries have shown that gender diversity at all levels of the judiciary will lead to the strengthening of this branch of government and the establishment of equal justice for all citizens.

International laws and standards actually oblige the government to respond to women’s challenges with effective and equal presence at all levels in the judiciary, and to actively and purposefully create enabling conditions for removing legal and practical barriers to women’s participation and overcoming cultural barriers of patriarchal dominance – which are deeply rooted in these societies.

These commitments arise from the collective spirit of conventions, resolutions, decisions, and international documents that are respected and accepted by the majority of countries in the world. The independence of the judiciary and the administration of justice based on women’s human rights and non-discrimination is firmly established.

In Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), out of 194 countries that are members of the United Nations, only 6 countries have not ratified this convention: the United States, Iran, Sudan, Somalia, and two very small and newly independent countries, Tonga and Palau. The United States has signed this convention but has not ratified it in the United States Congress. It states that: “States are obligated to take appropriate measures to eliminate discrimination against women in their political and public life in the country and to ensure that women are granted the following rights on equal terms with men:

El: The right to vote in all elections and public polls and the eligibility to be elected in all organizations that are held through general elections.

B: The right to participate in determining government policies and implementing them, as well as taking on government positions and carrying out public duties at all levels of government.

Participation in organizations and non-governmental associations related to public and political life of the country is a right.

Political and public life refers to the exercise of political power and specifically legislation, as well as presence in the three branches of the judiciary, executive, and legislative, even in high-level professions that hold significant decision-making power.

Furthermore, the fourth World Conference on Women, held by the United Nations in Beijing in 1995, states that governments must ensure that women have equal rights to hold positions in the judiciary and commit to achieving gender balance in the judiciary. Equal participation of women at all levels of the judiciary not only benefits society as a whole by utilizing the potential of educated women in the field of law, but also serves as a key factor in achieving gender equality in society, advancing society, promoting sustainable development, and moving towards democracy and people’s empowerment by going beyond the ballot box.

In forums of Middle Eastern and North African countries, female lawyers, judges, and human rights defenders listed challenges such as overcoming ideological and religious opposition (in many of these countries, there is serious opposition to women holding judicial positions), as well as the lack of presence of women in the judiciary in some of these countries, and the rarity of women holding such positions in others. In some professions where women can hold positions in the judiciary, there are serious restrictions. Even in countries where women have the right to judge, they often do not have the opportunity to judge in Sharia (Islamic) or criminal courts.

Opposition to the presence of women in high positions in the judiciary is justified by ideological, religious, and generally dominant cultural beliefs. However, whether the weight of the patriarchal culture in society is heavier or the beliefs of those in power are more dominant, religion is often used to justify the restrictions imposed on women in the judiciary. Maintaining gender power dynamics effectively, even in countries where the majority of Muslim women have the right to judge, is reflected in the reluctance of some citizens to appear before a female judge or the non-enforcement of a court ruling issued by a female judge, by government institutions or through threats, intimidation, and violence against female judges.

Despite the fact that the shadow of sexual and gender discrimination is more prevalent in the judicial systems of most Muslim majority countries in the Middle East and North Africa, there is still diversity in terms of the presence of women in the judiciary.

In Jordan, the first female judge was appointed to this position in 1995 and between the years 2011-1995, the number of female judges in this country increased to 157, which was 12.5% of the total judges in this country. This trend continued and since 2005, this country has systematically allocated budget for the presence of women in the judiciary or implementing affirmative action policies for the allocation of budget for female law students, educational programs and scientific trips. However, the presence of women in high judicial positions remains a serious challenge and out of the 15 members of the Judicial Council in this country, 11 are men.

Saudi Arabia is one of the most severe violators of women’s human rights and gender-based discrimination, and legal gender segregation and apartheid are legitimate and institutionalized in the government system of this country.

Tunisia is one of the best examples of Muslim-majority countries in terms of women’s presence in the judiciary. In October 1966, the first female judge was appointed by the President of this country and until 2012, one-third of Tunisia’s judges were women. The success of women in this country, both in the public sphere and in the judiciary, is the result of their great efforts in the judiciary.

According to one of the female judges in a forum in 2013, “In many cases, government officials have treated male and female judges equally. They have subjected women to the same oppression and harassment as men; but when they want to exert this pressure, they start with female judges. They have removed them from the capital with various missions and women have paid the cost of maintaining their position by staying away from home and family.”

Women have been busy working in the judicial system and have also played a key role in the independence of this branch in Tunisia, and have fought remarkable battles for it.

In Palestine (West Bank), where there are 7 law schools, many women have studied in this field and are employed as judges. In 2009, two young Palestinian women were appointed as judges in the Sharia (Islamic) court and opened the doors of civil and Islamic courts to women. Until then, the only country that had female judges in Sharia courts was Sudan, and even Lebanon, Syria, and Jordan, which had female judges in civil courts, did not have female judges in Sharia courts. Khuloud Fagih, 31, and Asmahan Wuheidi, 34, opened a new chapter in the Palestinian judiciary in 2009.

Iran

The conditions of women in the judiciary system of Iran and the challenges they face are in line with the conditions and challenges faced by women in other countries in the Middle East and North Africa region. With the establishment of the Islamic Republic, women in Iran were deprived of the right to judge and the rank of female judges was converted to administrative rank by the temporary government of the Islamic Republic on October 5, 1979. After this “two steps back” in terms of women’s presence in the Iranian judiciary, spaces gradually opened up for law graduates to enter the judiciary, except for the right of women to issue judgments as judges. In the Iranian Civil Code, judges are referred to by various titles, such as ruler, jurist, comprehensive conditions, accountant, prosecutor, deputy, investigator, judicial advisor, and generally as a judge. This means that the Deputy of Human Resources of the Judiciary announced in November 2014 that “currently, 700 female judges are active in the judiciary system.”

Error: cURL error 52: Empty reply from server

The Constitution of the Islamic Republic, approved in 1358, does not mention the conditions for verbal judgment, and the legislator has delegated the “qualities and conditions of a judge” according to the standards of jurisprudence and in accordance with Article 163 of the Constitution to ordinary law.

The Law on the Conditions of Selecting Judges was passed by the Islamic Consultative Assembly in Ordibehesht 1361 (1982), and according to this law, judges must meet the following conditions: 1) Faith, 2) Justice, 3) Practical commitment to Islamic standards, 4) Loyalty to the Islamic Republic system, 5) Moral purity, 6) Iranian citizenship, 7) Being male, 8) Having the ability to exercise independent judgment or obtaining permission from the Supreme Judicial Council, 9) Not being addicted to drugs.

In the year 1363 (1984), an amendment was added to the single article of the conditions of judges, which brought about some changes in the status of women in the judicial system. According to this amendment: a) Women were able to maintain their judicial position. b) They could serve as advisors in special civil courts and as supervisors in juvenile courts.

Furthermore, the Law Amending the Regulations on Divorce, passed in 1371 (1992), stipulates that in necessary circumstances, a special civil court can choose a female consultant judge from among qualified women.

According to Article 5 of the Supplementary Conditions for the Selection of Judges approved in 1363 (1984), in 1374 (1995), the head of the judiciary can employ women who meet the requirements for the selection of judges, with a judicial rank, to serve in positions such as advisors to the Administrative Justice Court, specialized civil courts, investigative judges, legal research offices, and drafting of judicial laws, as well as acting as supervisors and advisors in legal departments and other administrative positions with judicial responsibilities.

According to the above changes, although women who are employed in the above professions are considered “judges”, they are still deprived of actually serving as judges and issuing verdicts.

The enormous volume of judicial units in the whole country, which only in 2015 amounted to 11.5 million duplicate cases and 5.612 million non-duplicate (unique) cases, and during the year 1394-1393, a 28% increase in the number of cases entered into the branches of the Supreme Court of the country, has put a lot of pressure on the judicial system of Iran. Divorce settlements, alimony claims, spousal support, and cases related to family courts make up a significant portion of these cases.

Iranian publications have repeatedly mentioned that women have a higher tendency towards mutual divorce compared to men, and for this reason, there has been a significant increase in the presence of women in courts. It is predicted that this trend will continue to grow.

The heavy pressure of family court cases and the increasing number of female graduates from law schools in Iran has led to the consideration of solutions to alleviate this pressure and discussions about establishing special courts for women with female judges. In a report in July 2016, the Tabaanak website quoted Ms. Soheila Jaloudarzadeh, representative of Tehran in the parliament, who wrote, “We currently have a special family court, but we have not had a special court for women yet. For this reason, we are considering a proposal to be able to present it to the parliament and provide a way to address their (women’s) lawsuits.”

Jaloudarzadeh talks about a female judge, saying: “If we want to have a court for women, we must examine the religious obstacles. Of course, the issue of judging women and the belief that a woman cannot be a judge is a well-known saying, but we do not have explicit obstacles in this regard.”

According to the Deputy of Human Resources of the Judiciary in November 2013, there is a position for a judicial advisor for women: “700 female judges (with the definition used in this article for the various titles used for judges) are active in the judicial system.” They “have the qualifications and financial conditions of a judge, so they are judges; although they cannot issue verdicts”!

In the year 1395, 15,000 women participated in the exam for becoming a judge, of which more than one-third were female candidates. However, beliefs held by some religious leaders regarding women’s ability to judge justify the exclusion of qualified women from the judiciary, claiming that women are influenced by emotions and feminine feelings, and this hinders fair judgement. This discourse is still dominant among those in power and the judicial system in Iran.

Mohammad Reza Saki, former deputy of the Judicial Sciences University and judge, says: “The conditions for judges have been specified in Islam and verses and narrations have also mentioned the jurisprudential foundations in this regard. A woman cannot issue a judgment and only a man can act as a judge. In the position of chief judge, only a man can issue judgments and the only prohibition for women is issuing judgments.” Mustafa Tork Hamadani, a lawyer, says: “Each of the rulings and judgments in our country must be referred to a court with a male judge as the head, after being approved by the prosecutor, who is a man, so that a judgment can be issued in this way.”

Women in Iran do not have the role that they deserve in the judiciary system. Their talents are not utilized for the benefit of establishing a healthy society with an independent and transparent judicial system that enforces justice for all citizens without any gender, ethnic, or religious discrimination. Additionally, the restrictions on women for holding high positions in the judiciary and essentially as judges with the right to issue verdicts are not justifiable for any reason.

Iranian women, when placed in suitable positions, have not only shown their worth in defending the human rights of all citizens, but also in the field of judiciary, both in the past when they could have been judges and today, outside the borders of Iran. Most Muslim countries have opened new pages in the role of women in the judiciary and have paved the way for equal and extensive presence of women at all levels in the judiciary. This has not only empowered women, but also benefited the entire society and established democracy beyond the ballot boxes.

Sources:

1. Report of the Women and Judiciary Forum, International Court of Justice website, 2013.

2. Convention on the Elimination of All Forms of Discrimination Against Women, United Nations Information Center website (in Tehran)

3. Ring, Akram (translator), Women’s Action Program at the United Nations; Towards Beijing and then, published by Sherkatgah, Lahore, March 2004.

4. Working with judges to improve women’s outcomes in Sharia courts, the United Nations Women’s website (in Palestine), February 27, 2017.

5. News, Hanieh, Women’s Judgment: Permissible or Impermissible, Tabian, 12th of Farvardin 1391.