The Root Cause
By Nauman Nisar, MS,
MD
Needham, MA
The verdict is out. Five of the six men received
a non-guilty verdict and for one the death sentence
was reduced to life imprisonment. Citing “insufficient
evidence”, the Multan Bench of the Lahore
High Court in “Muktar Mai gang rape case”
sided with the defendants who were facing capital
punishment.
“Justice is finally served,” said
Mr. Saleem, the defense lawyer.
Are we missing something here? Isn’t she
the one who was gang-raped by four men in front
of hundreds of her fellow villagers under the
specific orders of a village council presided
over by the village elders?
Mukhtar Mai is devastated but she is standing
tall. She is a thin, frail woman and probably
weighs less than a hundred pounds. But don’t
underestimate her will, she vows to fight and
plans to appeal to the Supreme Court. She may
be in for another shock.
The guilty free verdict by the appeals court is
shocking but not entirely unexpected.
The judicial system in Pakistan is set against
the victim at the very outset. The burden of proof
rests with the victim. Failure to prove the allegations
in a sexual assault can have potentially disastrous
consequences. The victim could easily be turned
into a proven offender of “Qazf” or
slander, punishable with whipping (100 lashes)
or capital punishment depending upon the circumstances
of the case.
Majority of sexual assault cases in Pakistan deal
with plaintiffs, witnesses and defendants who
are either illiterate and have no formal education.
Police record their statements in plain Urdu or
one of the local dialects.
These records are then translated into English
for the courts creating discrepancies or outright
omissions. In some cases the omissions are deliberate
and are intended to help the defendants, especially
if they know people in higher circles.
In almost all such cases the victims sign statements
that they simply cannot read or understand!
Introduction of evidence in a court of law, which
is plagued by shabby and often tainted police
work, inadequate documentation and poor record
keeping by the police does not bode well for the
victim. It is relatively easy to find discrepancies
within the records once they are reviewed by the
higher courts.
Given the inconsistencies within records, it is
not uncommon for the appellate courts to favor
the defendant. You couple a poorly documented
case with a good defense lawyer and the rapists
are home free.
It is argued that probably the stiffer penalties
for sexual assaults are one of the reasons for
the courts to err on to the side of the defendant.
These harsher capital punishments were brought
to the system by the Zina and Hudood Ordinances
(1).
In order to justify a capital punishment the courts
invariably have to set higher evidentiary standards.
Inconsistencies, omissions, faulty or tainted
evidence are valid grounds for acquittal.
The current Hudood laws are probably too idealistic.
There is a lack of alternative or lesser punishment
under Sub-section (4) of Section 10 of the Offence
of Zina (Enforcement of Hudood Ordinance, 1979).
Thus, if death cannot be awarded due to inadequate
evidence, the accused has to be acquitted.
The judicial system appears impotent in such cases
and falters badly. On the one hand it brings a
harsher capital punishment for the rapists, but
at the same time it sets the stage against the
victims in such a way that a conviction becomes
unattainable.
Lesser penalties, including longer jail terms
or life imprisonment coupled with a higher conviction
rate, are a compromise that could be more appealing
to the masses.
The idea, after all, is to get all the rapists
off the streets and locked up for good. In the
current judicial system they end up right on the
street simply by default.
Ref: 1. Sub-section (4) of Section 10: Offence
of Zina and Hudood Ordinance, 1979.
2. Section 376 of Pakistan Penal Code 1860.
3. Section 6 (C) Terrorist Act, 1997
To find out more and to support her cause see:
http://www.mukhtarmai.com
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