COMMENT: Legal lessons from the Mai case —Yasser Latif Hamdani - Monday, April 25, 2011

It is clear that the verdict — whether right or wrong — is likely to embolden criminal elements and groups in Pakistan who thrive on this kind of violence against women

The acquittals of five of the six men charged with raping Mukhtaran Mai have once again underscored the need for genuine reform in Pakistan’s criminal legal system. Pakistan’s criminal procedure and laws have not been updated to improve efficacy for a very long time. The main obsession in the last 30 years has been on blending in sharia with the legal system and, in the process, we have completely ignored the real issues of our legal system, which require constant evolution to meet the needs of the modern day.

As much as one views the free judiciary as an increasingly reactionary institution, in my opinion it is unfair to blame the Supreme Court (SC) for the result of this case. What the judgment — laid down by Justice Saqib Nisar, who is known to be a fair and impartial judge in addition to being a decent human being, mostly known to take a fair minded view of things — came down to was the lack of a deoxyribonucleic acid (DNA) and semen test, which would have been a smoking gun. As the judgment states very clearly, only a DNA test would have provided the requisite evidence to overturn the Lahore High Court’s decision.

No matter what side of the issue one is on and no matter how you look at it, the omission of DNA and semen tests is negligence of the highest order, but this is a negligence not just of the investigating authorities but also the lawmakers. This negligence has either delayed, and now denied, justice to Mukhtaran Mai or it has kept behind bars five of the accused without any evidence for close to a decade. Therefore, it is high time that DNA and semen tests become a mandatory requirement for all rape cases.

Another urgent requirement of the time is the immediate ban on all panchayats and jirgas with immediate effect, with the onus on those who are accused of holding panchayats and committing outrages such as watta satta marriages and gang rapes to prove that they have not done so. Simultaneously, we need legislation at the provincial level to set up representative village dispute arbitration councils appointed by government authorities fairly and impartially and bound by a code of conduct to fill the role panchayats and jirgas have traditionally fulfilled. These councils should be bound by the law of the land and governed by the principles of the fundamental law of Pakistan.

There also has to be a check on the role of the local or village imam. He should not be allowed to play any leadership or mediation role and should be strictly limited to the mosque. The unbridled power of the pulpit also needs to be checked regardless of whether the role played by the imam of the masjid in this case was a positive one or a negative one.

Finally, for rape cases and other offences — such as honour killings, watta satta and karo kari — a federal investigating department needs to be put together as an overseer of the proceedings in each such case. People of integrity should be called upon to set up such a small but effective force comprising experts of law, criminology, forensic science and psychology armed with resources and rapid transportation, travelling from city to city to investigate all such matters and submitting their reports on the matter to a trial court. As much as the SC had its reasons for acquitting the accused, they should now move fast to contain the negative fallout that this will have on women’s rights in Pakistan. It is clear that the verdict — whether right or wrong — is likely to embolden criminal elements and groups in Pakistan who thrive on this kind of violence against women.

Perhaps the most disturbing thing in this whole issue is the deafening silence of our ghairat (honour) brigade that does not tire of driving down the decision of the court in the Raymond Davis case. At the very least it exposes the double standards that are commonplace in this unfortunate group of scoundrels that cries from morning to evening about Aafia Siddiqui’s verdict in New York. That qaum ki beti (daughter of the nation), who was married to not one but at least two different al Qaeda operatives and was directly linked to Khalid Sheikh Mohammad, is somehow more deserving of our ghairat brigade’s sympathies than a woman who lost everything and then dedicated her life to improving the lot of women in her area. Indeed, they are more interested in saving the virtue of Muslim women in France who have only recently tasted the air of freedom.

The writer is a lawyer. He also blogs at and can be reached at

Source :\04\25\story_25-4-2011_pg3_5

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