The second sex

The writer is a lawyer based in Islamabad.
The Second Sex, Simone de Beauvoir’s seminal work on feminism published in 1949, defined a woman in the following terms: “...humanity is male and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being...And she is simply what man decrees; thus she is called ‘the sex’, by which is meant that she appears essentially to the male as a sexual being. For him she is sex – absolutely sex, no less. She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute – she is the Other.”
The Mukhtaran Mai case establishes that the picture painted by de Beauvoir over half a century ago continues to define the reality for women in Pakistan, especially those belonging to the most vulnerable segments of our society. Notwithstanding one’s position on the reasoning of the majority and minority rulings in the Mukhtaran Mai case, there are a few things that are certain. One, essential components of our criminal justice system, such as the police and the prosecution are incompetent and unprofessional and consequently the chasm between law and justice is growing.
Two, the courts are not immune from extraneous considerations such as public opinion, which in turn compromises the safety of our justice system. And three, coercive social traditions and chauvinistic tendencies are so firmly ingrained in our collective psyche that we are not even unaware of the biases we harbour and their role in entrenching loathsome customs in the name of tradition and honour. But before one begins to bemoan the Supreme Court order it is essential to understand what it has held.
In a split judgment the Supreme Court has rejected the appeal of Mukhtaran Mai against the acquittal of all of the accused for rape and connivance, except the one convicted for rape by the High Court and sentenced to a life term. In other words the Supreme Court has held that there isn’t sufficient evidence to establish that Mukhtaran Mai was a victim of gang rape. It has endorsed the High Court ruling that Mukhtaran Mai was a victim of rape and the prime accused will serve a life term behind bars. A dispassionate reading of the ruling suggests that the Supreme Court has applied settled law to the case and consequently it is hard to disagree with the ratio of the majority ruling.
The principles of law reiterated by the court are as follows: One, that the scope of interference in appeal, especially against acquittal, is extremely limited. In other words it is not for an appellate court to retry cases by initiating a fresh appraisal of evidence, unless the appellant can establish that essential evidence was either not considered or misread. It is settled law that an appellate court should not replace the factual findings of the trial court merely because it would have formed a different opinion if placed in the shoes of the trial court.
Two, an accused is to be considered innocent until proven guilty; guilt is to be established beyond reasonable doubt; and in case of doubt its benefit ought to go to the accused. And three, that sole testimony of a victim of rape backed by “medical evidence and strong attendant circumstances” shall suffice to warrant conviction, but in such cases the courts should proceed with caution in order not to reverse the onus of proof from the prosecution to the defence i.e. require the accused to prove his innocence.
In view of these principles of law the majority reached the conclusion that there was no basis to interfere with the ruling of the High Court as there was insufficient evidence to establish that (i) anyone other than the prime accused raped Mukhtaran Mai, and (ii) the co-accused had the shared intent of facilitating the rape and consequently were liable to be convicted for abetment.
It is important to note that even the minority judgment doesn’t find that a ‘panchayat’ endorsed and facilitated the rape and its participants ought to be punished or that there was sufficient evidence to convict any co-accused on charges of rape. Consequently the minority judgment only seeks to convict two co-accused (who were charged by the victim as participants in the gang rape) as accomplices guilty of facilitating and abetting the commission of rape.
So what wrong has been done if the apex court has strictly applied principles of law to a much-publicised case and rendered a judgment that might be against public opinion but juridically firm? Aren’t courts meant to be neutral arbiters of the law oblivious to public opinion? Should the courts only rubberstamp controversies preordained through media trials? No. But there are at least three reasons why the outcome in the Mukhtaran Mai case is disconcerting.
One, the final ruling of the Supreme Court might not be infirm, but in this case the Supreme Court has either meted out injustice to Mukhtaran Mai by letting some of her rapists off the hook or those accused by her. The Supreme Court had taken suo moto notice of the Mukhtaran Mai case and through an order passed on June 28, 2005, suspended the High Court judgment and instructed that all accused in the case (including those acquitted even by the initial trial court) be arrested and kept in jail as under-trial prisoners not to be released on bail. It has now ruled that except one, all others are innocent. If they are indeed innocent, who will account for the six-year jail term they have already served?
Two, the obiter comments of majority judgment reflect a patriarchal mindset and our collective social biases. The apex court endorses the High Court’s view that a DNA and semen test should have been conducted to establish that more than one person raped Mukhtaran Mai. But it also goes on to insinuate that had four people indeed raped her for an hour, she would have struggled and had injuries to show. The minority judgment however finds from the same record that Mai had healed bruises a week after the event that back up her version of the story.
The majority judgment also wonders why Mai did not file an FIR immediately after the rape. It acknowledges that considerations such as ‘badnami’ (disrepute) and stigma and the consequent urge to hide the matter to protect one’s honour are relevant in case of an unmarried virgin victim, but not in case of a mature divorcee allegedly raped with the consent of a ‘panchayat’. While such observations might not inform the judicial outcome of the case they lend credence to the view that in rape cases it is the victim who is under trial.
And finally, the Supreme Court ruling is disappointing for it projects the apex court as an instrument of the status quo and not a vehicle of change in a society where women have the deck stacked against them. The Mukhtaran Mai incident and the attention it attracted had created a false hope that the legal outcome of this case might break new ground in reducing the atrocities and violence inflicted upon women in our society.
Maybe it is time to realise that there are no short cuts. If women are to be treated as equal and autonomous beings and we are to emerge as a society that does not see half its population as chattels to be possessed, controlled, abused and sold, the battle for securing equal rights for women will need to be waged in earnest, not in the courts alone, but in society at large.

Email: sattar@post.harvard.edu