How The Pakistani Legal System Subverted Justice

28 Apr

IN a previous blog post, I provided an account of the gang rape of Mukhtar Mai by four Mastoi clan members in Meerwala village in Pakistan. Here is a brief explanation of how her case was treated in the courts.

Eight days after the vicious gang rape of Mukhtar Mai, she filed a First Information Report with the local police. Fourteen men are named: the four who participated in the rape, and the rest who abetted it by not intervening. All 14 were arrested and charged under various provisions of the Pakistan Penal Code (provisions 109/149) of 1868, the Anti-Terrorism Act (7c & 21-1) of 1997 and the Offence of Zina (Enforcement of Hudood) Ordinance (10-4 and 11) of 1979. The Pakistani laws allow criminal cases to be simultaneously tried under Islamic law and the Pakistani Penal Code.

Six months later, the Anti-Terrorism Court convicted six of the 14 men, sentencing them to death, and releasing the rest due to a lack of evidence.

This verdict was appealed, both by Mai and by the six who were convicted, and in 2005, the Lahore High Court not only upheld the eight acquittals, but also reversed the rulings on five of the six who were convicted, and commuted the death sentence of the sixth man, Abdul Khaliq, to a life sentence.

The Federal Sharia Court, an Islamic court, overturned the Lahore High Court decision, but the Pakistan Supreme Court subsequently took charge of the case. The Supreme Court re-reviewed all the evidence that had been presented, and on April 21, 2011, issued a ruling (read the full verdict here).

In a decision authored by Justice Mian Saqib Nisar and signed by Justice Mian Shakirullah Jan on April 22, 2011, the Supreme Court upheld the High Court ruling. Justice Nasir-ul-Mulk wrote the dissenting opinion.

THE majority opinion by Nisar cannot fail but anger the reader. Its 40-odd pages underscore the conclusion that human rights activists have drawn: that in Pakistan, the testimony of rape victims matters insultingly little, if at all. The history of the odious Hudood Ordinance, enacted by the Pakistani dictator Zia ul-Haq in 1979, further proves how little the courts valued a woman’s word over the past decades. Under the Hudood law, a woman could only prove she had been raped if she could produce three adult Muslim men to corroborate her story. If not, she stood the risk of being prosecuted for illicit consensual sex. Since rape hardly ever has witnesses—let alone three of them, who are willing to testify—it isn’t difficult to guess that hardly any rapists were successfully convicted during this period. In 2006, the year after the High Court ruled on the Mai case, the hated Hudood Ordinance was “reformed” by another dictator, Pervez Musharraf, in 2006 into the Women’s Protection Act. (Listen to Musharraf’s comments on raped women and Mai here.)

Nisar began by paying lip service to the atrocity of the rape as “being a blatant, heinous and untoward incident it attracted the media, both electronic and the print, and on account of [being] an atrocious, pernicious and shameful act, it generated both grief and rage in the public at large.” But the rest of the opinion quickly proves that the two justices did not feel it was blatant or heinous.

To quote the majority opinion, “We are not convinced MM was taken to the room as alleged by her”; “The evidence is not confidence-inspiring…suffers from contradictions and inconsistencies…The story is implausible, flimsy, and uncanny as set forth….And the sole testimony of MM is insufficient.”

Justices Nisar and Jan go on to register their disbelief about virtually every piece of evidence that the prosecution introduced:

• that Mai was even dragged off to Khaliq’s house
• that her family members did not physically intervene (perhaps they were imagining a similar scenario from a Bollywood movie and could not understand that in real life, two men against 200 are not winning odds)
• that the healing bruises on Mai’s body indicated her struggle against her attackers that Mai’s testimony was believable on its own merits
• that the imam was trying to help the members of his flock without ulterior motives

They even suggested that the entire lawsuit was brought about once Salma was married off to another man, hence making impossible the Gujjar’s solution of proposed marriage between Salma and Mai’s brother Abdul Shakoor.

They cast doubt on Mai’s intentions, given that she waited eight days to file her complaint. The dissenting judge, Justice Nasir-ul-Mulk does an admirable job of contradicting his colleagues’ conclusions. In his opinion, fully as long as the majority ruling, he writes, “The Courts are generally inclined not to attach much importance to delay in reporting rape, considering that the victim and her family would take time to recover from shock and to be in a position to decide whether or not report the crime, in view of the social taboos and the stigma it attaches not only to the victim but the entire family.”

The two judges also saw fit to comment on Mai’s marital status: “[The] case of an unmarried virgin victim of a young age, whose future may be stigmatised… cannot be held at par with a grownup lady, who is a divorcee for the last many years.” This is a clear indication of prejudice: if Mai had been an unmarried virgin, her delay in reporting the rape would be justified; given that Mai was an adult and a divorcée, the delay was suspect.

Age and marital status, as Supreme Court Justices in any country should know, are not predictors of speediness in reporting vicious attacks such as rape. Far more influential is the presence of a huge status differential, as was in play between the powerful Mastoi and the considerably humbler Gujjar clans. In fact, in dissenting judge Nasir-ul-Mulk’s opinion, “In order to examine and appreciate the prosecution evidence in its proper perspective one has to keep in mind the disparity in the levels of the social status of the complainant and the accused party and the influence of the latter. The accused belonged to influential Mastoi Tribe and the complainant to a humble family of Gujjars.”

He adds:

The record of the present case however reveals that there were a number of other factors that prevented the complainant party to make the report to the police. The complainant party was under a continuous threat from the accused not to disclose the incident. The threat was real in view of the social disparity between the two parties, as will be discussed latter. Without the moral support of P.W. Maulvi Abdul Razzaq and the publicity given to the incident, perhaps, it may never have seen light of the day.

Despite such odds, the complainant, an illiterate woman of rural humble background, mustered tremendous courage to stand up against powerful influential culprits to bring them to justice. Thus, in my view, the delay of eight days in reporting the incident to the police by the complainant in the afore-mentioned circumstances will not be fatal to the prosecution case.

Human rights workers and ordinary Pakistanis were horrified by the Supreme Court ruling; organizations such as the Human Rights Commission of Pakistan, Amnesty International, and the National Commission on the Status of Women have issued statements. There have been protests in Karachi. A Parliamentarian wants a review of the ruling. Pakistani newspapers have run columns of outrage over the verdict. And Mai’s lawyer, the well-known Barrister Aitzaz Ahsan, has issued a statement that they will appeal.

All throughout, Mai has been receiving threats from the powerful Mastoi clan—and even a member of the National Assembly—to drop the case. Despite much fear, and deep disappointment at the Supreme Court ruling, Mai told a reporter: “Please keep the issue alive. They have strengthened jirgas and waderas (feudals) back home and let down the poor women of Pakistan. Let’s fight it together.”

Meanwhile, the freed rapists are distributing sweets in Meerwala.

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