Opinion

Will Mukhtaran Mai ever get justice?

It is important to remember that the problem with the judiciary isn’t that it wanted to deny Mukhtaran Mai justice.

Nadir Hassan April 21, 2011

It is tempting, when hearing that five of the six men accused of raping Mukhtaran Mai have had their acquittals upheld by the Supreme Court, to see the verdict as the latest in a long line of indignities forced upon her. Mukhtaran Mai has endured government scorn and apathy with grace and has been an inspiration to millions. If anyone deserved justice, it is her.

It is important to remember that the problem with the judiciary isn’t that it wanted to deny Mukhtaran Mai justice. In Aitzaz Ahsan, she had one of the finest lawyers around and given how long it takes for most cases to be adjudicated in Pakistan, her appeal was actually heard relatively speedily. Rather, the problem is purely institutional. Rape survivors are at an inherent disadvantage when seeking justice, since their testimony is automatically treated as suspect. With Mukhtaran Mai, the police in her village of Meerwala refused to register her case for several days after she was raped, and only a public outcry led to any action being taken. That delay torpedoed her chances of a fair hearing and ensured that a miscarriage of justice was the most likely outcome.

Those who are critics of Pakistan’s parallel justice systems will also have to face some harsh realities. It was an anti-terrorism court (ATC) in Dera Ghazi Khan that originally sentenced the six men to death in August 2002 for raping Mukhtaran Mai. That verdict was then appealed in the Lahore High Court (LHC), which retried the case and reversed the convictions of five of the men in 2005 on the basis of insufficient evidence. After that, the Federal Shariat Court (FSC) overturned the verdict of the LHC and had the men arrested again. The Supreme Court then ruled that the FSC did not have the authority to hear the case and took up the appeal itself.

It is tempting to have a knee-jerk reaction and not only praise the ATC and FSC for its verdicts but support their operating parallel to the regular courts. Using the outcome of a single case to define judicial philosophy would be very unwise. The FSC was created as part of Ziaul Haq’s Islamisation of Pakistan and as such has often been subjected to withering criticism by the very people who most fervently wanted justice for Mukhtaran Mai. There should be no reason to soften that criticism just because of one case.

Instead, what is needed is a total overhaul of how rape cases are handled, not just by the judiciary but also the police. Such change can only come through societal pressure and will take many years to bring about, but it is the only way of preventing future Mukhtaran Mais from being denied justice.

Published in The Express Tribune, April 22^nd, 2011.

COMMENTS (25)

Anoop | 13 years ago | Reply Pakistani Courts are efficient in doing one thing, though- Sentencing people accused of Blasphemy. Rest of the things, who cares! Allah's court is there, the judges say.

sam | 13 years ago | Reply The Supreme Court then ruled that the FSC did not have the authority to hear the case and took up the appeal itself. The writer is wrong at this point, the FSC is the only court that can hear a rape case filed under the hudood ord. while its true that the whole case became a victim of a tussle between the executive and the judicairy (and as a result was sent to ATC to hurry up the 'justice process' after the media attention). Kindly tell the writer to correct the error and get hold of the SC and FSC verdicts.

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Pakistani | 13 years ago | Reply It shows something is terribly wrong with our Judicial system. In such a high profile case, how people avoid to get punishment.? Just imagine poors in villages and small towns how they would be treated by police and influencial people, how can they even think of getting justice..... We all "so called literate people" talk and talk but practically do very little...Shame on us I firmly believe that this single factor contribute most of the our current ills, weather it is target killing, corruption, domestic violence or petty crimes, we know that nobody will EVER GET CAUGHT AND IF SOMEONE GET CAUGHTT WILL NEVER GET PUNISHED. Injustice rooted so deep in our society that nobody has any trust on state appratus, nobody care if they do petty violations, we all as a nation need to raise our voice against it. Forget about political parties, they kill, extort, do corruption, and follow the agenda what suits them only.

saleem | 13 years ago | Reply one man "gang rape",how this on Gods earth supreme court trust the evidence of police,in other cases they go to the micro level,cant they ask the police to re-investigate the case,and i am more concern that a lawyer like itazaz could not handle the case,i feel ashamed that our this "AZAD ADLIA" could not provide the justice to single woman.Shame.

Blandweek | 13 years ago | Reply Generalities that are contrived at best and evident that the so called writer knew nothing of the case of its legal complexities

Shahzeb | 13 years ago | Reply The final judgment comes to prove that it was not a gang rape but an individual act of rape!! How Come,were the natives of the village where this dastardly event happened were interviewed?

Aristo | 13 years ago | Reply It is time for the judiciary to come out with some out of the box solutions as the onus of providing justice is on them. The change will not come until they apply their minds and think critically to beat the Staus Quo.

Asghar Malik | 13 years ago | Reply Dear Sir, This is not the right question. I think right question is "Will any poor get justice?" becoz Tell me who shows such a courage that Mukhtar mai showed even then She got nothing. Its about our system, which fails everyone, who try being poor.

Jeddy | 13 years ago | Reply Al Capone was sent to jail but not for all the crimes he had committed. He was sent to jail for tax evasion. One proof of guilt is enough. If one person has been sentenced - it is progress. Soon more men would end up paying for their crimes.

ArifQ | 13 years ago | Reply Dear writer, sure we can intellectualize to death the efficacy of laws but the fat remains this has nothing to do with the way law is written, its simply a matter of interpretation and cultural values. Mukhtaran Mai=woman/poor/raped or dishonored has no position in society, that is how mindsets work on Pakistan, judiciary or police are no exceptions. Frankly, much of this mindset comes from Punjab, rest of Pakistan is suffering because of this warped Punjabi honor.

SJ | 13 years ago | Reply and the you are trying to say that....??? Could have written more instead of generalizing legal complexities.

Hamza Baloch | 13 years ago | Reply Court decided on the basis of evidence. Court must not decided on the bases of Media reports. After LHC, SC same decisions,i think its not judicary fault, but it may be the fault of police and the lawyer of Muktara maii... They enable to defend her!

TheWaterBearer | 13 years ago | Reply Sad verdict, but expected in Pakistan... but I don't understand why everyone is so disheartened. If a governor of Pakistan could be gunned down in broad daylight in public, and the killer garlanded for his heroic act, why can't the rapists be meted out a similar fate? Sure it sucks that they escaped death penalty, but can't some righteous Islamic hero also gun them down in broad daylight, in public, as an example of Islamic principles??? Or is it crimes against women in the Land of the Pure are only the matter of gossip on elite blogs?

John | 13 years ago | Reply Read the entire SC verdict and here is the summary The state and Ms. Mai appealed the acquittal of the five alleged rapists acquitted by LHC due to insufficient evidence. In the same appeal the convicted rapist Abdul Khaliq appealed his conviction and the SC initiated Suo Motto action on this case was also heard concurrently. The appeal was heard by SC bench comprising 3 justices and the decision was 2-1, majority in favor of upholding the LHC acquittal verdict. The appeal case was best summarized by dissenting opinion by Justice Nasir-ul-Mulk. The appeal and majority opinion came down to the following: Whether the delay in filing First information report (FIR) questions the credibility of the Mai's complaint as questioned by the defense and alluded as such in the LHC verdict. -all three justices rejected this argument saying that in cases of rape such delay is anticipated. However, the majority of the opinion lingered on whether the witnesses are credible.The majority justices questioned why the father and uncle who were outside the house while Ms. Mai was being raped did not rush down to help her, and felt that it was unusual. J.Nasir gives a nice answer to this question. The judges even went further in questioning whether indeed gang rape had taken place and expressed that it was unlikely given that the accused lived in the same house with his mother, sisters and brothers where the rape took place, and questioned how Ms. Mai were able to identify the gang rapists while there were no light- moon light. They did not buy her physical injury on her back as the evidence of gang rape related injury-Essentially questioning Mai's complaint of gang rape. ( here the doctor failed). The justice Nasir gives a nice opinion on this matter disagreeing on the two justices. The matter is complicated by the fact that one of the accused was misidentified by the police and as such he was given the benefit of the doubt and acquitted. Because the misidentified accused was part of the gang of rapists and since he is given the benefit of the doubt, the remaining accused were also given the same benefit of the doubt in the rape charges.-All 3 justices agree on that However Justice Nasir convicts the rest of aiding and abetting in the rape by Convicted Abdul, while the majority did not do so. Whether the statement by rape victim alone is sufficient became an issue and Justice Nasir quoted Indian Court decision in saying that it is sufficient given the cultural basis of women of the subcontinent in matters concerning rape, while the other two justices wanted more corroborative proofs from DNA evidences to establish gang rape, and individual rape,or other corroborative witnesses- A very high bar. The convicted Abdul claimed that he had Nikka (marriage) with Mai, and thus he had conjugal sex with her. The defense could not prove the evidence of marriage but since Abdul admitted to having sex with Mai, which she did not agree, he was convicted of rape. --(convoluted argument for upholding conviction, what if he is really married and she still said no?). This was the same argument given by LHC for his conviction, and SC essentially upheld it. It appears that police did not register the case and witnesses properly and the doctor who examined Mai did not do well in medico legal cases of this type by documenting the rape evidences such as vaginal semen samples, which is routinely done. Whether it is lack of facility or negligence is hard to say. It was also complicated by the fact that the rape case was registered by police about a week later, but from the opinion of judges they all agree that every one in the village by now must know that rape has happened, at least by Abdul- whether it was more than one is the issue. In criminal appeals, acquittals are rarely overturned and in many countries the acquitted ones can not be retried on the same case again. All three justices agree on this, since no new evidences are presented. As such LHC verdict stands. The prosecution did not cohesively present a solid case backed by scientific evidence such as DNA. Unfortunately, in tribal and rural societies where facilities are lacking and cultural stigma of rape delays the reporting of case, and compounds the verdict in favor of the accused. l Rape is generally difficult to prove especially of it is reported late and is not backed by corroborative evidences. In this case I agree with Justice Nasir-ul-Mulk that except the one misidentified individual, all the four remaining should be convicted of aiding and abetting rape by Abdul. Based on the majority verdict, the SC also threw out its own Suo Motto case. Personally I lay the blame on the police.

RK | 13 years ago | Reply It appears there is a disconnect between following the law and dispensing justice...what a sham...

temporal | 13 years ago | Reply nadir: well said: Instead, what is needed is a total overhaul of how rape cases are handled, not just by the judiciary but also the police. Such change can only come through societal pressure and will take many years to bring about, but it is the only way of preventing future Mukhtaran Mais from being denied justice. and in the interim empower the women...give each of them a gun

Billoo Bhaya | 13 years ago | Reply @TightDhoti: @deep: @parvez: You have hit all the right buttons. Therefore SC Judges knew well the failings of police, influence and pressures of rapist families to obstruct justice and to present tainted evidence. Issue boils down to new "Independent Judiciary" making any headway towards a better and a just Pakistan in last 3 years?? I guess not, because Judges speak through verdicts and judgements and so far they have very little to show for. More so I find that if MM's evidence was insufficient, they could have summoned anyone involved to come forward to be questioned. Just as SC does on reports presented to them on the Steel Mills case, NRO, Punjab Bank etc., which they keep rejecting because they find these to be insufficient to give a guilty verdict. In the same way they should have treated MM's evidence and got down to the truth. But then TRUTH in Pakistan and most Muslim societies has been the casualty of events since the death of the Prophet. Just look at our socities - they are antediluviant in their progress.

Sonia | 13 years ago | Reply NO, This is Pakistan. Justice is not supplied here. It's a WASTELAND.

TightDhoti | 13 years ago | Reply Pile of crap! Our legal system and proceedings are littered with get out of jail cards for rapists, acid throwers, karo kari instigators etc. We have infinite patience for all the wrong things

shuja ur rehman raja | 13 years ago | Reply s Judiciary to be blamed for the decision? Is judiciary free as long as it acts on what we think is right? When will the women of Pakistan be free? Human rights activists please define? Because one man illegally, immorally and wrongly raped Mukhtaran and she blamed 14 men so should rape law be repealed as it has been misused by Muktaran Mai. The line of argument adopted for misuse of Blasphemy law? What Mukhtaran Mai tells is all truth? What about illicit relations of Mukhtaran Mai’s Brother with the sister of Abdul Khaliq accused? Who write her best selling book on amazon. Who claimed millions of dollars worth of royalty of this book? How women empowerment bill was passed on the basis of this issues? How she became billionaire? Who benefited from this issue and filled pockets with dollars? What is the real story?

deep | 13 years ago | Reply The verdict said that there were no injuries on her body...implying that she is either lying or it was consensual. But they convicted one man....so rejecting the case of gang rape. Why convict that one man - let him loose as well. Does the victim and her father and the maulvi's eye-witness accounts have no standing? Why would any self-respecting woman make such an allegation and make her life a living hell. I suppose Musharraf should be pleased with this verdict - the only fly in the ointment is that Mukhtaran chose to stay in Pakistan.

Blunt! | 13 years ago | Reply No Justice in Pakistan!

John | 13 years ago | Reply Culture of Impunity

parvez | 13 years ago | Reply I feel your article is extremely guarded in your opinion. Most people and more so the superior judiciary are aware of the loop holes in the law enforcement and judicial system, so in this highly visible case expectation was that Muktara Mai would receive solace with justice being done. This required not simply legal or judicial competence but a vision of the bigger picture involving moral, societal, political and humane aspects. In this they failed.

Agonised Uncle | 13 years ago | Reply Will Pakistan ever get justice? Isn't it now evident to all of us Pakistanis, that the Army-Landlord-Intelligence-Politico combine, has completely destroyed our national fabric? Did we ever really have a national fabric? Only one way out of this mess. Land reforms. Throw out the zamindari system. Empower the Hari. Rezone the country on language, not ethnic lines. Give official recognition to all languages. Cut the defense budget by 50% minimum. Scrap the nuclear programme. Scrap the missile programme. Dismantle the ISI. Make a university education and zero-crime record, mandatory for running in an election. Require national debate. Strengthen the Pakistan Election Commission. Draft and ratify a secular constitution for a secular state. Make legislation the exclusive right of the legislature, and curb the hubris of activist judges / lawyers. REFORMS. REFORMS. REFORMS. Else, Pakistan will get CHAOS, CHAOS, CHAOS. The choice is ours ... but of course, that would mean, that the elite has to roll over ... unless it wants to see its heads roll. We are on a very tight national schedule here ...

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