Struggle for justice

Rape crimes remind us of both our failings as a society and the state’s failure to appropriately exercise its executive and judicial functions to curb this crime of loathing and depravity. This article sheds light on the reasons for such a momentous failure which, predominantly, is the by-product of lack of education, the absence of awareness and ineffective law-enforcement mechanisms.

Politicians and demagogues alike have repeatedly used the sanction and ready acceptance of misconstrued religious teachings to promote their own political ideologies and motives. Such is the captivation with faith that Pakistanis en masse submit themselves to the averments of the pseudo-Islamic politician and are led astray without even attempting to consider the authenticity of the propagator’s claims. This bolsters tribal customs and, effectively, the patriarchal construct of the society that supports inequality and the subjugation of women.

In 2006, president Musharraf was applauded for his efforts, as it was his regime’s concept of ‘enlightened moderation’ that led to the new legislation to empower women. This transpired through the enactment of the Protection of Women (Criminal Laws Amendment) Act, 2006 (PWA), which, to the delight of civil society activists, after 27 years of struggle, amended the draconian Hudood Ordinances.

By virtue of the amendment, rape now comes under Section 375 of the Pakistan Penal Code 1860 and removes the evidentiary requirement of four male eyewitnesses.

However, it was not until the Council of Islamic Ideology (CII), declared the offence of zina bil jabr under the Hudood Ordinances as ‘un-Islamic’ that the amendment became effective. But this amendment still remains a contested issue due to the cultural and religious orthodoxy that intermingles with modern laws.

Read: Mukhtar Mai gang rape accused freed

In 2011, the Supreme Court’s judgment in the famous Mukhtaran Mai case was a shocking revelation of the traditional conservative approach still adopted by some judges.

The judgment highlights the flaws of the Pakistani legal system such as inefficient investigation, corruption, political influence, the lack of modern technology to test DNA samples and its delayed process.

The case acquired importance due to the timing of the law reform and popularity of the case.

Also read: CII rules out DNA as primary evidence in rape cases

All the perpetrators were acquitted except one who was awarded life imprisonment. The decision appeared to be based more on a conservative judicial approach rather than the principles of law and evidence. This could be proved from the opinions of the dissenting judge who in accordance with the PWA considered enough evidence to convict all the perpetrators and hence punishable under the law.

Currently, there are major issues that prevent victims of rape from reporting the crime, in particular the vulgar language used in the process of investigation and the meaningless probing of the victim. There is also an inherent tendency of both the executive and judiciary to question the modesty of the victim rather than address the latter’s grievances. In practice, all the ingredients which would dissuade a rape victim from coming forward and pressing charges form the very edifice on which our criminal justice system stands.

In its façade to gain approval amongst the comity of nations by portraying to honour its international commitments under international law such as the UN Convention of Elimination Against all forms of Discrimination Against Women (CEDAW), the government often fails to realise its responsibility is not limited to just enacting legislation but also taking effective measures to implement that legislation. This failure on the part of the government is evidence that even after nine years of the law being in force, we hardly see any perpetrators behind bars for rape crimes.

Hence, for the PWA to be effective, it is vital to target the procedural and judicial process of the country, which the government has been inept in doing. Our international obligations under CEDAW require us to focus on the implementation mechanisms too.

It is time to take effective steps to curtail the current failures of the system. The National Commission on the Status of Women needs to work in conjunction with the Ministry of Law, Justice and Human Rights and assist them in determining the failures of the legislative system. There is a dire need to formulate national policies, which would effectively ensure that the law is implemented in a proper manner, and reform the CII, which does not appreciate the concept of ijtehad and shuns modern criminal investigation tools such as DNA testing.

Religion should not be exploited to em­­power such conservative or orthodox app­roach of the system. The law, which was supposed to protect the dignity of a woman, still fails to provide her justice. Hence it is time that we as a nation unite to recognise our system’s failures and work on providing a secure environment for our children and women.

The writer is a high court advocate.

Published in Dawn, February 12th, 2015