Gender bias in the criminal justice system

Regardless of what the law says, the law is interpreted by societal norms, which can result in miscarriage of justice


Javeria Younus August 06, 2015
The writer is an advocate, human rights defender, and a legal researcher

Gender jurisprudence is unheard of in the realm of Pakistan’s criminal justice system. In fact, it is continuously at discord with social norms that are enforced by the biases of the criminal justice system. While there is a preconceived notion that the criminal justice system primarily revolves around men, as men are predisposed to violence, women do not even garner support as victims in this system. Unjust and biased laws have turned the justice delivery system into a travesty of itself. The laws governing any society mirror the cultural, moral and ethical norms prevalent amongst its members; it is thus inevitable that a patriarchal society will have sexist laws. Masculinity asserted through violence is characteristic of patriarchy, with much of it directed at women under the pretext of maintaining family honour.

Pakistan’s criminal justice system particularly favours men over women, while its civil justice system does so as well, to a certain extent. The Law of Evidence, for instance, does not give the same weight to the testimony of a female witness of crime as it does to a male witness; the law requires that for any crime to be proven, there should be two female witnesses as opposed to one male witness. The law has now been amended by virtue of the Women Protection Act of 2006. However, this Act has separated rape and fornication, returning the former to the Pakistan Penal Code. On May 30, 2013, the Council of Islamic Ideology held that DNA is not admissible evidence in rape cases, thus shifting the onus back on the testimony of four male witnesses. This has severely jeopardised female rape victims, who find it impossible to prove false the allegation of fornication, or zina, levelled against them. Instead, the rapists get the benefit and are allowed to go scot-free.

The country’s criminal justice system has failed to deter perpetrators of honour killings, domestic violence, forced marriages, rape and family feuds. Pakistan’s judiciary at the lower levels and sometimes even at the higher levels, tends to reinforce discriminatory customary norms, rather than securing constitutionally-guaranteed gender equality.

The interpretation of law can never be completely detached from the specific cultural context in which it is enacted; norms and accepted practices profoundly affect the application and interpretation of law. The justice system in Pakistan is, therefore, predisposed to the notion that women victims of rape have a morally casual attitude. Regardless of what the law says, at the end of the day, the law is interpreted by societal norms, which can result in the miscarriage of justice.

In addition to the formal justice system, the parallel informal system of community arbitration or jirgas also perpetuates injustice against women. The customs and norms of the Fata region in particular, are jealously guarded and perpetuated by these jirgas without any state intervention. Women are further victimised through the contradictions of these parallel legal systems within the same society. A prime example is the case of Mukhtaran Mai, who was gang-raped in the village of Mirawali in June 2002 on the orders of a tribal panchayat.

There have been instances when the lower judiciary especially has interpreted the law through the lens of social, cultural and sexual bias. It has assumed, for instance, that women are incapable of deciding for themselves and need a guardian to validate their marriage. This has resulted in many women imprisoned in cases of adultery, instituted by relatives not approving of her right to marry at will and invalidating her lawful marriage. In cases of honour killings, mitigating factors are often taken into account for men but not for women, because men are assumed to be guardians of ‘family honour’.

In cases of domestic violence, women are forced to reconcile with the perpetrators of violence, often the husband. Even if the matter reaches the court, the general attitude is that there should always be reconciled, leaving the victims without legal protection and at the mercy of their violent relatives and abusive partners.

Despite participation of women in the political process, women are seldom appointed to decision-making positions. Of the 103 current judges in the superior courts, only three are female. The percentage of women judges in superior courts is 2.91 per cent, as against the 33 per cent required by the UN Beijing Conference of 1996, to which Pakistan is a signatory. To date, no female judge of the high court has been elevated to the level of a Supreme Court judge or chief justice of the four high courts; their male colleagues almost always supersede them.

The general attitude of the justice system needs a major change in order to do away with the gender-biased mindset. Gender sensitisation can do little in the face of societal pressures. Specific gender policies will need to be initiated to tackle the core issue. Only then can women litigants and victims of crime be confident that they will be heard and justice will be served. Meanwhile, judges should be specifically trained to adjudicate upon gender issues. They must understand the sensitivity of rape, for instance, and should allow complete privacy to the victim, who has been brave enough to stand up for herself. These victims should be allowed to remain anonymous to protect their identity and life. Judges should be trained to adjudicate by looking beyond the existing social customs and norms, to uphold and safeguard the rights of women.

Published in The Express Tribune, August 7th,  2015.

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COMMENTS (6)

Farah Khan | 9 years ago | Reply As a female lawyer, i can understand when she said 3% female judges in superior judiciary. it very difficult for a woman to survive in this profession infact in every profession in a country where we still talk about Gender and male dominance, the whole world is done debating on this issue, and they are actually working on how to make their institutions better and how to progress, while we are busy discussing where should we put woman, how many seats for them, why she is rapes, may be her fault, why she is divorced may be her fault, why is she demanding khula may be she is not a "good" woman, is this job good for a woman, is she fit for this job, does she has enough abilities and intelligence for this job. all these question are no more discussed in progressive societies.
tauqeer | 9 years ago | Reply what about the gender discrimination with regard to bail matters where men are discriminated? so please don,t blame the right values for the reasons of bad governance and poor management.
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