By Ali Dayan
29 March, 2005
March 15, four of the five men convicted in the Mukhtar Mai rape case,
but later acquitted by the Multan bench of the Lahore High Court, were
released by Central jail authorities only to be re-arrested on March
18 on the intervention of Prime Minister Shaukat Aziz. Meanwhile, nearly
three years after she was raped by four "volunteers" on the
order of a village panchayat, Mukhtar Mai still awaits justice.
While the denial
of justice to Mukhtar Mai is appalling, the release and re- arrest of
the four and the events surrounding the progress of the case raise yet
larger questions about the sorry state of Pakistan's legal system.
were accused of involvement in Mukhtar Mai's case; eight of them were
found not guilty by the Dera Ghazi Khan Anti-Terrorism Court on August
31, 2002. The remaining six were convicted and sentenced to death.
In its judgement
overturning the verdict, the LHC stated that the prosecution could not
prove that a panchayat had ordered the gang-rape of Mukhtar Mai. It
stated that, "the prosecution miserably failed to prove the accused
guilty." The LHC added that it found it "strange" that
the "trial court in spite of not an iota of evidence on record
had convicted and sentenced the appellants."
The Federal Shariat
Court's subsequent suspension of the LHC verdict on the grounds that
high courts had no jurisdiction to hear appeals in cases pertaining
to Hudood laws, and the Supreme Court's action to take jurisdiction
of the case in response, underscore the jurisdictional problems that
have plagued Pakistan's higher judiciary since the inception of the
Federal Shariat Court in 1980.
The Supreme Court
apparently took over the case in order to prevent damage to the judiciary's
reputation and to prevent a turf-war between the Shariat court and the
LHC in the full glare of international media attention.
of international attention there is still hope - recent court decisions
and jurisdictional confusion notwithstanding - that Mukhtar Mai's rapists
will be brought to justice.
This is important,
not least because international and Pakistani human rights groups have
documented countless cases of others caught in similar situations with
no such hope of seeing justice done.
Though the Supreme
Court has intervened in this instance, the Mukhtar Mai case illustrates
the need for a comprehensive overhaul of the country's judicial and
Why was an anti-terrorism
court used to hear a rape case? How did the anti-terrorism court convict
without an "iota" of evidence? How did the investigating authority
fail to gather evidence in a case as public as Mukhtar Mai's? What is
the jurisdiction of the Federal Shariat Court in relation to high courts
and the Supreme Court itself?
What would the likely
outcome have been had the Shariat Court heard the Mukhtar Mai case in
the light of the existing Hudood law, which has been described by the
National Commission for Status of Women as a law that "makes a
mockery of Islamic justice" and is "not based on Islamic injunctions"?
Is the Shariat Court even capable of providing justice to rape victims
so long as they require four male eyewitnesses to testify? These are
questions that need immediate answers.
The LHC judgment
highlights to the world what anyone who has ever traversed the muddy
waters of Pakistan's law-enforcement and judicial system knows all too
well: the investigative capacity of the police is virtually non-existent
and the lower-level judiciary simply lacks the training, means, and
awareness to adjudicate within the framework of the law.
It is a sobering
thought that, in contrast to the two-year training programme offered
to civil servants, district judges receive less than a fortnight of
These judges are
meant to dispense justice without any training in judicial ethics and
conduct, interpretation and application of the law, or even the basics
of judgement writing. And they lack the staple of a proper judiciary:
independence from the executive.
It is imperative
that government authorities ensure that village panchayats, tribal jirgas
and other customary councils act in accordance with the law and in a
manner that respect women's rights and do not usurp the proper judicial
role of the civil courts.
The government should
identify mechanisms by which local administrations can monitor the conduct
of such councils and intervene in instances where they have acted beyond
However, any attempt
to do so will be doomed to fail unless the state moves speedily to put
its own house in order. As the Human Rights Commission of Pakistan has
stated, "The rise of the jirga reflects upon the decline of the
judicial system. These informal forums of justice can only be eliminated
if deficiencies in the judicial system are removed."
reform must be instituted, resulting in a visible enhancement of public
oversight, accountability and investigative capacity; discriminatory
laws against women must be repealed or amended to be brought into conformity
with international standards; the judicial system must be given back
its independence and status so that its ability to function as a profession,
coherent structure is not held hostage by the government itself or by
a competing legal framework based on sectarian theological considerations.
As long as the state
continues to fail to be an effective guarantor of basic security and
justice, there will continue to be many more victims like Mukhtar Mai
- people for the world to rally around from time to time, but who are
mostly left to suffer silently in the shadows.
The writer is a
researcher with the New York-based Human Rights Watch.