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 turn 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 family honour.
Pakistan’s criminal justice system particularly favours men over women, while its civil justice system does so to a certain extent. The Law of Evidence (Qanoon-e-Shahadat Ordinance), 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, 2006. However, this Act has separated rape and fornication, returning the former to the Pakistan Penal Code. On 30 May 2013, the Islamic ideological council held that DNA is not admissible in rape cases, thus shifting the onus back on the testimony of four male witnesses. This has severely jeopardized 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. There is no dearth of women-centric laws in Pakistan: the Constitution declares that all citizens enjoy the protection of law and are to be treated in accordance with law, and that any law, custom, or usage having the force of law, which is inconsistent with the fundamental rights conferred by the Constitution, shall be void. Article 25 guarantees gender equality and affirmative action for women’s empowerment. The Principles of Policy protect marriage, the family, mother and child, and envisage full participation of women in national development. All of these have done little to change the deeply entrenched chauvinistic and patriarchal mindset of the populace however. In fact, Pakistan’s judges in the lower judiciary and sometimes even at the higher levels, tend 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 located; norms and accepted practices profoundly affect the application and interpretation of law. Judges in Pakistan are hence predisposed to the notion that women victims of rape have loose morals. Regardless of what the law says, at the end of the day, the law is interpreted by societal norms, always resulting 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 Federally Administered Tribal Areas (FATA) in particular, are jealously guarded and perpetuated by these jirgas without any State intervention. These include atrocities such as the customs of Vani and Swara, whereby young girls are forcibly married as punishment / compensation for crimes committed by their male relatives.
Women are further victimized 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 Mirawali village in June 2002 on the orders of the Matsoi Tribal Panchayat (village elders’ council), as punishment for the alleged affair of her 12-year-old brother with a Matsoi girl.
Mai accused 14 men of being involved in raping her, and a court sentenced six of them to death, while acquitting the others citing a lack of evidence. On appeal, the Lahore High Court not only upheld the eight acquittals, but also overturned five of the six convictions. The death penalty for the sixth man, Abdul Khaliq, was commuted to life imprisonment. Mai appealed to the Supreme Court in 2005, but her appeal was rejected—the reason is existence of dominating patriarchal mindset in the judiciary.
Male judges interpret the law through the lens of social, cultural, and sexual bias. They assume that women are incapable of deciding for themselves and they need a guardian to validate the marriage. This has resulted in many women imprisoned in cases of zina, 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 guardian 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 it should 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 103 current judges in the superior courts, only three are female. The percentage of women judges in superior courts is 2.91 percent, as against the 33 percent 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 Supreme Court judge or chief justice of the four high courts; their male colleagues almost always supersede them.
The general attitude of judges needs a major change in order to do away with the gender-biased mindset. Gender sensitization 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.
