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Mainstream, VOL LVII No 33 New Delhi August 3, 2019

Long wait for Justice for Pakistan’s Gang-rape Survivor

Saturday 3 August 2019, by Mahendra Ved

For 17 years, justice has eluded Mukhtaran Mai, the woman who has come to represent the feudal underbelly of Pakistan. The country’s best known gang-rape survivor has been pushed between police investigations and court trials on one hand and, while gaining ‘celebrity’ status in the West, earned opprobrium from successive governments and the conservative classes at home on the other.

 Her quest for justice remains unending and elusive and, on June 12, eluded her yet again, when the Pakistan Supreme Court dismissed her review appeal against the acquittal of 13 men she accused of having gang-raped her way back in 2002.

 Mai’s ‘crime’ was that her younger brother was accused of having illicit relations with a woman belonging to a rival clan. Her gang-rape was punishment meted out by Pakistan’s kangaroo courts delivered by powerful village heads and clergy of the jirgas and panchayats. The feudal system co-exists with modern-day jurisprudence.

 The system has denied gender justice and weighs heavily in favour of men. According to a study by the Human Rights Commission of Pakistan, there were over 5660 cases of violence against women (VAW) reported in the country during 2017 and many of these were linked to the verdicts delivered by these non-state institutions.

 The National Commission on the Status of Women (NCSW) and the government of Khyber Pakhtunkhwa had, six years ago, filed a petition to declare the informal justice system in Pakistan unlawful and against the canons of law.

 Nothing has emerged from this move. Like the blasphemy law that triggers mass passions, this system of justice, deeply embedded in mostly rural pockets of Pakistan, has given the country notoriety.

Mai’s case has aroused criticism at home and abroad. Former military ruler Pervez Musharraf and three-time Prime Minister Nawaz Sharif have faced serious embarrassment when their visits to the United Nations coincided with those of Mai to New York, invited by American women’s groups and a US Congressional caucus expressing solidarity with her.

 Three years ago, a group of US lawmakers known to campaign against Pakistan, scheduled her visit to coincide with that of Sharif when a resolution to declare Pakistan “a sponsor of terrorism” was mooted. It was on the day Sharif addressed the United Nations General Assembly.

 Mai received support from an unlikely quarter when, on November 2, 2016, she walked the ramp with celebrities at the Fashion Pakistan Week in Karachi. Designer Rozina Munib chose to have Mai as a women’s rights spokesperson to send a message of strength to women facing adverse situations.

 All this has, however, neither impacted male domination, nor the feudal stronghold over society in rural Pakistan. It has certainly not secured justice for her or punishment for perpetrators of the crime.

 At the June 12 Supreme Court hearing, a three-member Bench headed by Justice Gulzar Ahmed held that new points raised in Mai’s petition could be examined in another case. “Only a mistake or mistakes in a ruling can be highlighted for reconsideration in a review petition,” the judge observed, dismissing her petition.

 He advised Mai’s counsel, Barrister Aitzaz Ahsan, to “shorten the review petition or it will drag on for 10 years.” The length of the petition ostensibly had to do with strong and corroborative evidence. The dismissal, Dawn newspaper reported, was “on technical grounds”.

Among other things, Ahsan had challenged the Lahore High Court judgment of 2005 that no injuries resulting from a sexual assault were visible on her body, even though witness statements said otherwise.

 June 12 was the third time the Apex Court was hearing Mai’s petitions and its approach to the issues raised seem different. In 2016, it ordered a judicial review of its own decision of 2011. The move was hailed by civil society and sections of media. The Supreme Court was seen as allowing a long awaited opportunity to address the abysmal rate of conviction in rape cases.

 In recent years, the Pakistani media has frequently highlighted cases to establish how the informal justice system propagates acts of VAW and one such case which appalled the entire country was that of Mai.

 In 2011, a three-member Bench of the Supreme Court acquitted five of the six accused in her gang rape. Its primary rationale was the delay in registration of a first information report (FIR) by the victim and doubts about the evidence presented by the prosecution.

 The majority judgement assumed that, as per the facts of the case, an older divorced woman like Mukhtaran Mai should have hesitated less in reporting an alleged rape compared to a younger unmarried woman.

 Critics said this observation disregarded the ground reality prevailing in rural areas of Pakistan (southern Punjab in this case) and was itself a ground for review.

 The judges delivering the majority verdict in 2011 failed to consider the circumstances and social status of Mai and also disregarded the reality of how rape is used to assert authority and control. In a country where rape is under-reported and under-prosecuted, the verdict came as a serious blow to such victims’ quest for justice.

 The majority verdict in 2011 also doubted the evidence presented by the prosecution. Poor investigation and poor recording of medical evidence is a well-known feature of alleged rape investigations in Pakistan. Judges have periodically pointed out this failing of the investigative agencies and have acknowledged the lack of emphasis on collecting medical or forensic evidence, especially against male perpetrators.

 Past verdicts have sought to place the onus for proving the crime on the victim. In this, the Court did not accept her counsel’s argument that Mai’s version alone was enough to prove the guilt of the accused.

 Ahsan, a leading lawyer and a former Minister in the Pakistan Peoples’ Party (PPP) governments, has fought Mai’s case from the outset. Given her grit and his own commitment to seek justice, Ahsan is likely to pursue the case afresh, probably as per the Apex Court’s advice, in the quest for justice for his client and for women in Pakistan, who suffer bias from the police and judiciary and gender discrimination in a male-dominated society.

The author, the President of Commonwealth Journalists Association (CJA), can be contacted at mahendraved07[at]gmail.com

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