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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