PAKISTAN: Mukhtaran Mai and the miscarriage of justice
Daily Times: Dr Haider Shah
In Pakistan, our social norms are of tribal and feudal times but our laws are based on the British legal system. No attempt has been made by our jurists and legislators to address the discord between the laws and social reality.
The Supreme Court (SC) judgment in the world famous Mukhtaran Mai case has come as a shock to all those who had conveniently believed that the restoration of the judiciary alone would result in the supremacy of law in Pakistan. Unlike many others, I do not, however, cast any aspersion on the judiciary for acquitting the accused. The honourable SC decided the case on the basis of the evidence made available to it. We are disappointed with the outcome but it would be equally disturbing if we expect the courts to decide cases on the basis of popular perceptions alone. Let us admit that the court’s verdict was not about an insignificant woman from rural Punjab. In reality, it was an indictment of the whole society. While the accused walk free, all of Pakistani society, with its norms and values, stands embarrassingly naked in the full glare of the international community.
For me, the Mukhtaran Mai case is yet another case of ‘miscarriage of justice’. This phrase is ordinarily used to refer to cases where the accused are wrongfully punished. It is, however, also used to mean the reverse, i.e. ‘errors of impunity’ situations in which victims fail to get justice and perpetrators of the crime go scot-free. In published literature, miscarriage is often attributed to the systemic bias in the judicial system. For instance, in many miscarriage cases involving black people, the racist bias of white judges has been cited as the influential factor. Recently, some feminist scholars in the UK have opined that the gender makeup of the judiciary is also a potential source of bias. To me, this is a very restricted notion of miscarriage as bias creeps into the judicial system from socio-religious channels as well. In Pakistan, we have many examples where the miscarriage of justice has occurred due to the religious views of the judges or the external pressure on them.
When societies are faced with extraordinary situations they respond by both legislative and capacity building measures. For instance, when the US and the UK were hit by terrorist attacks they responded by special anti-terrorism laws that, besides other things, also enhanced the detention powers of police. They also came up with a new doctrine, i.e. ‘high policing’, where the police are actively engaged in intelligence gathering and dismantling operations against prospective terrorists. In Pakistan, our social norms are of tribal and feudal times but our laws are based on the British legal system. No attempt has been made by our jurists and legislators to address the discord between the laws and social reality. The panchayat and other tribal and feudal modes of parallel justice systems exist and operate in our country in violation of our constitution. Except paying lip service, what have we done to dismantle them so far?
Our laws are made for a society that is based on the rule of law and where individualism reigns supreme. Since that society is non-existent, our whole legal edifice is working on a fictitious basis with disturbing consequences. The law declares that sanctity of life is guaranteed under Article 9 of the constitution. Mr Israrullah Zehri, however, thunders on the floor of the Senate that killing women in family honour cases is part of their tribal culture. He is then rewarded with a ministry by the government that champions equal rights for women. When a lady doctor is raped in Balochistan, the whole establishment gears up to silence the murmuring voices of anguish. In such a society, why do we expect that the courts will fight the battle for us on all fronts while we complacently sit idle? When a foreign murderer walked free under the law of diyat, we spouted all anger over the court and government. We have developed a habit of remaining inert and accepting a legal structure and then fuming when the inadequacies of the system become apparent.
The Mukhtaran Mai case may prove to be a blessing in disguise if it arouses our slumbering national conscience. In India, the Jessica Lall case shocked the nation when a young barmaid was shot dead at a party and the killer walked free as nobody came forward with evidence. Indian civil society rose to the occasion and galvanised a strong public opinion, which resulted in the conviction of the murderer. The Mukhtaran Mai case emphasises the need for revamping our criminal justice system. Laws addressing the ground realities, an informed community, a capable police system and a sound independent judiciary are the four pillars of a good justice system. On the legislation side, new evidence laws need to be framed in cases of crimes against women and terrorist activities. The anti-terrorism laws need further strengthening via consultation with field officers. The police need to enhance their capacity by making advances in the field of forensic investigation.
The role of the media in cases like Mukhtaran Mai leaves much to be desired. In the western media, investigative reporters often carry out sting operations exposing perpetrators of crime and fraud. Our media persons devote most of their time and energy on easily acquired juicy stories about politicians. They could have helped the case of Mukhtaran Mai if they had professionally conducted an investigative operation and unearthed the whole facts. They only burst into national hysteria if the accused happens to be a foreigner. They need to realise that society suffers more if the rule of law is breached by locals with impunity.
In the famous Indian movie ‘Damini’, a macho hero, Sunny Deol, rescues the hapless woman who challenged the tyranny of a rotten evidence based criminal justice system. In the real world, unfortunately no such heroes would appear. Our Daminis, Mukhtarans and Shazias will have to wait till society itself turns heroic and decides to rescue them.