Blinkered justice? Dr Farzana Bari - Saturday, April 30, 2011

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The Supreme Court’s judgement in the case of Mukhtaran Mai, acquitting all the accused with the exception of one, raises serious concerns about the ability of the legal system to dispense justice to victims of sexual violence in Pakistan. In the split judgement, two judges out of the three dismissed Mukhtaran Mai’s appeal on the grounds that they did not find sufficient evidence to establish that gang-rape had been committed. However, basing his views on the same evidence, the dissenting judge recommended ten years’ imprisonment to five others accused of gang-rape. This shows that the judgement was not purely a technical matter of the law and evidence; it was also an issue of mindsets.

A reading of the detailed judgment will show how the larger cultural context of the crime was almost completely ignored. The delay in the registration of the FIR proved to be fatal to the prosecution’s case and it appears that due weight was not given to the testimony of the victim of the rape.

In the case of Mukhtaran Mai’s brother, Shakoor, where the accused were convicted of sodomy, the judges argued that culturally it was not possible for the accused to endanger the virtue of their sister by detaining her in a room with Shakoor to save themselves from the accusation of sodomy. This indicates a failure to see the gender realities of our society, where women are bought and sold like cattle by male members of their families. They are bartered and exchanged in the name of local traditions of valvar and vani to settle disputes among men. Whereas justice is blindfolded in order for it to be as impartial as possible, it should not be blind. And it is imperative that justice is seen to be carried out as well.

The judgment is the continuity of a judicial culture where rapists were given impunity under the Hudood Ordinance of 1979, under which four male Muslim witnesses were required before a Hud punishment could be handed down in rape cases. This patriarchal bias is clearly reflected in the lack of conviction in rape cases despite the Women’s Protection Act (2006) that removed the crime of rape from the Hudood Ordinance and put it back into the Pakistan Penal Code.

The judgement also encourages the panachyat system which undermines a long-standing demand of women’s rights groups to do away with all parallel judicial systems.

There are those who are dubbing the response of women’s rights activists to this judgment as emotional, and generously advising them not to blame the judges as they are neutral and objective and make judgements purely on the basis of evidence and merit. Let me say to them that there is no such thing as absolute impartiality in this world: absolute impartiality is humanly impossible. We all understand our “objective realities” through our own subjectivities. Personal experiences, value systems and how we view the world play an important role in determining what we choose to see. The personal experiences and value systems of judges often colour their judgements. That is why judicial systems the world over have, in relative terms, failed to dispense justice to those who belong to the underprivileged or minority sections of society.

The judgment highlights the serious flaws in our law as well as in our criminal justice system that is most obviously not geared to dispensing justice to women victims of sexual violence. Inefficiency of investigation due to corruption, use of political influence, lack of access to modern technology such as DNA-testing labs, and inability of the prosecution to gather sufficient evidence are some of the serious institutional issues that the Mukhtaran Mai case has brought to the fore. However, why does Mukhtaran Mai, the victim, have to pay for the inefficiency of the criminal justice system?

The disappointment expressed by human rights activists and civil society organisations on the judgment is not an emotional response as it is portrayed by many male writers. Women are concerned about the serious ramifications of this decision on the fate of victims of violence in this country. The case did not pertain to an individual alone, it was a test case and had wider social ramifications.

The judgement handed down in this case has set a precedent and will be binding on the lower courts. Why did the judges rely merely on the counsels of the complainants and defendants? Why did they not set up an amicus curie to get a wide range of opinions from the legal fraternity, gender experts and human-rights activists? When the judiciary can take this course in the case of Zulfikar Ali Bhutto, where ten legal experts are engaged-in a mere political stunt which will not to have any implication for the wider society--why was this not done in the case of Mukhtaran Mai which affects the living, the women of Pakistan?

It is important that we radically revamp our criminal justice system. Judicial reform should be initiated with a priority in making a change in the Evidence Act. To change the patriarchal culture in the judiciary, women judges should be promoted to the higher judiciary.

Our judicial system not only failed Mukhtaran Mai but also the women of Pakistan. However, the people will continue to celebrate Mukhtaran Mai’s defiance and courage. With the tremendous respect she enjoys, Mukhtaran Mai is an emerging popular leader in southern Punjab, where she is seen as a messiah by the oppressed, the under-privileged, and victims of injustices and violence.

The writer is director of the Centre of Excellence in Gender Studies, Quaid-e-Azam University. Email:

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