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The Jurisdiction Dilemma

By Ali Dayan Hasan

29 March, 2005
The Dawn

On 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.

Fourteen people 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.

Precisely because 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 policing system.

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 orientation.

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 their authority.

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."

Meaningful police 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.











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