Monday September 26, 2022

Reform the system

September 18, 2020

In a recent tweet, I had said that in a civilized society protection to women is given outside the home, and this is called “successful policing”. If a woman’s honour is dependent upon time and situation, then there is no need for the writ of the state. Globally, women are going to space and here we are trying to keep them shrouded in darkness.

My tweet got a wide array of responses. Most people were of the view that rapists should be publicly hanged. Others have suggested that they should be castrated, physically or chemically. Still many said they should be stoned to death. Many were angry at the insensitive remarks of the CCPO Lahore and demanded his removal. One segment of the population even supported the CCPO’s statement in which he said that “women should refrain from traveling alone at night.” There were also others who have ideologically opposed the death penalty for the rapists.

Under Pakistani law, the penalty for rape is death or imprisonment for maximum twenty-five years. The tragic and horrific gang-rape of a mother in front of her children on the Lahore-Sialkot Motorway has shaken humanity and hence we see the demand that punishment should be made even more public and exemplary.

Each country has to evolve punishments according to its own peculiar situations. For example, many European countries as well as 10 states in the US punish rapists with chemical castration as punishment for repeat sexual offences. A few countries also give castration as punishment for rape, but this is not mandatory; it is imposed if the culprit voluntarily agrees to the procedure in return for a reduced sentence. Pakistani law could also certainly be amended to add this punishment as retribution to a heinous crime such as rape. Such a punishment in my view would not be in violation of our constitution.

The real question, however, is: can we, by increasing the severity of the punishment, deter criminals from committing crimes?

Research shows that the death penalty alone does not deter criminals but in fact feeds the fear of being caught in the rapist, thereby leading him to kill the victim to erase evidence. Notwithstanding this, in a society like Pakistan, where the death penalty is expected by public to be minimum punishment for such heinous offences, and the only way in which the family and the victim can be ‘compensated’ and obtain retribution, it is necessary. However, it is not just the severity of punishments but the high probability that the culprit will be caught, prosecuted and harsh punishment given which will actually discourage criminals from committing rapes.

A few years ago, a seven-year-old child Zainab was raped and murdered. This act of horror rightly generated hue and cry across Pakistan. It was said that this case would be made an example so that such crimes are not repeated. Yes, the culprit was caught and punished, but these crimes still go on. The Motorway gang-rape too, with all this media scrutiny and civil society in arms, will be successfully prosecuted, culprits caught and punished. However, it is only when culprits are given swift punishment in all other rape cases which do not make media headlines that true deterrence will be accomplished.

The problem is that there are serious flaws in our criminal justice system where culprits involved in violence against women are either not caught as assaults go unreported or, if caught, are not convicted. (The conviction rate in Pakistan for cases of violence against women is as low as 2.5 percent).

Take the example of one of the suspects in the Motorway case. Reportedly, he has already been tried for rape but got acquitted because there was a so-called ‘compromise’ between him and the survivor’s family. He went on to commit the same crime again. This is nothing new. Pakistan’s legal system is full of such instances. We have even seen prominent women being assaulted in their homes and then being forced to keep quiet. This is what creates a feeling of impunity amongst criminals.

Although it is the duty of the state to prosecute and convict rapists, a compromise usually takes place between the culprit and the victims or their families, through money, threat, influence or because of fear, frustration and delays or simply the lack of resources. Statements are then made by witnesses that the incident never took place. Courts are forced to acquit the accused.

Criminals know that the probability of them being caught and punished is extremely low either because they have themselves previously gotten away scot-free after committing a crime or are aware of people who have committed the crime and have not been convicted. This belief that they will not be punished nullifies the effect of any severe penalty.

The solution lies in increasing the rate of conviction. For this to happen, the government would have to work on two fronts. One is to reform the judicial system in which many measures need to be taken. Without an efficient justice system in the country, no severity of punishment will have much effect.

The second is to carry out massive police reforms which include increasing the capacity of the police and breaking the nexus between police and criminals. Our police system is still beholden to an archaic system where the SHO is investigating everything under the sun, from petty thefts to rape and murders.

The remarks of the CCPO show that the police still hold a mindset that indulges in victim shaming. This needs to be changed. I suggest that the police force should also have only one designated person to address the media, much like ISPR does, so that damage to the credibility of the police force caused by irresponsible statements can be avoided.

The third, and equally important change that is required, and that has to come from the civil society itself, is regarding the attitude about sexual assaults. It is common for women all over the world to avoid reporting sexual assaults because of fear of the shame it would bring to them and their families. The lack of reporting enables criminals to get away with their crimes. The state has to provide institutional mechanisms to support and protect victims and survivors and their families.

I am sure that the time has come for the government to, in light of its duty to protect the life and dignity of its citizens, start taking measures on at least these three fronts for sustained results.

The writer is a Supreme Court advocate, former federal minister for law and former president of the SCBA.

Email: ali@mandviwallaandzafar. com