State cannot abdicate its duty

September 27, 2020

Faced with public outrage, men in the corridors of power and authority promise harsher laws with stricter punishments — blind to the adage that violence begets violence


ibi, sulahnaama, raazinaama kar lo” (LEA personnel advising a rape survivor to drop rape charges under the law and accept an out-of-court settlement, a “compromise”). In a recently reported case in Lahore, the LEAs pressured a rape survivor to marry her rapist.

Viewed on the touchstones of law and justice, these state responses are illegal, unacceptable, and outrageous – especially coming from law enforcers. Yet, this occurs all too often in numerous crimes of sexual violence – inter alia, sexual harassment, abduction, forced conversion, forced/child marriage, domestic violence, disrobing and public parading, acid and burn crimes, rape, gang-rape, marital-rape, revenge-rape, dishonour killings (including burying women/girls alive), and giving away girls to the enemy in compensation, as settlement of male feuds.

Inside parliament, a senator defended his colleague accused of burying alive four women, while another threatened, during a Senate session, the female Senator condemning those live-burials. A former chief minister presided over jirgas meting out anti-women judgements (sic) on weekends. A prominent legislator presided over a jirga that decreed handing over 15 girls as “compensation” for a dead dog. In a Supreme Court case hearing, a federal law minister recently quoted Quranic verses out of context in his seeking to deny a woman’s right to manage her property and finances.

The current Lahore CCPO still refuses to acknowledge anything amiss in his misogynist utterances blaming a gang-rape survivor; the government has still not sacked him. Federal and provincial ministers/spokespersons rushed to the CCPO’s defence – albeit, with notable exceptions.

An education minister recommended ending co-education as a solution to sexual harassment of girls. Another education minister banished the entry of men as speakers and guests at girls’ education institution events. An elected district councillor used government development fund to purchase, distribute and mandate schoolgirls’ obligatory wearing shuttlecock burqas at all-girls’ secondary schools.

The trend is clear: the patriarchal mind-set still sees sexual crimes as being the girl/woman’s fault. Despite numerous pro-women laws, the judiciary still widely accepts “sudden and grave provocation to a man’s honour” in defence of dishonour killings; or virginity (two-finger) tests as the rapist’s standard defence of consensual sex. The negligible conviction rate of sexual crimes speaks for itself.

But even after rectifying the rape laws (in 2006 and 2016), whereby rape is no longer equated with adultery (Hudood/Zina Ordinance 1979) – rape is still rarely reported. The LEAs rarely investigate and prosecute registered rape cases properly, including finding an honest medico-legal officer to write an accurate MLR and not tampering with witnesses or forensic evidence. However, the Supreme Court has now accepted a DNA test as admissible forensic evidence after the Ratta-Amraal rape case PIL (CP 38/2012; PLJ2013 SC107).

Pakistan has the dubious distinction of the superior judiciary overturning evidence and witness testimony-based rape convictions by subordinate trial courts; acquitting all but one convicted rapists in that most blatant, horrific miscarriage of justice, following the crowded panchayat-ordered gang-rape of Mukhtar Bibi (aka Mukhtaran Mai). Former president Pervez Musharraf’s notorious remarks about rape survivors are a chilling embodiment of misogyny in the highest echelons of power: “If you want to go abroad and get a visa for Canada or citizenship, and become a millionaire, get yourself raped.” (The Washington Post, September 2005)

The state organs are just as uncomfortable with the concept, causes and impact of rape/gang-rape as is the average male citizen of Pakistan. Hence, faced with public outrage, men in the corridors of power and authority promise harsher laws with stricter punishments – blind to the adage that violence begets violence. The death penalty has failed to act as a deterrent to sexual violence crimes against children (case in point: Zainab, Kasur 2018). We note that the harsher the penalty, the more reluctant the judiciary is to convict and sentence the culprits, especially rapists. Hence, life imprisonment without the possibility of pardon, parole or remission is required.

Rather than enacting new laws prescribing ever harsher punishments for sexual crimes, the state needs to strengthen the existing policies and laws to remove all loopholes enabling the privatization of justice via compromises, forgiveness, compensation (badal-i-sulh), and out-of-court settlements – if required, even by becoming the plaintiff itself. Strict enforcement of laws and SCP orders is required, e.g. prevention of jirgas-panchayats or arresting and convicting all participants.

Reformative justice (as opposed to retributive) requires strong political will and commitment at all levels of the Executive branch – without re-inventing the wheel. It also requires adequate budgetary allocations, institutional facilities and human resource capacity-building, with strict monitoring.

There exist excellent reports and recommendations to reform the criminal justice administration system, especially subordinate judiciary training; LEAs’ recruitment criteria, training, SOPs, and terms of service; public prosecutors; medico-legal practitioners; forensic experts; prison law reforms; law and judicial curricula-pedagogy reforms; and respecting the privacy of survivors of gender based violence despite the FIR being a public document.

Dealing with gender based violence and rehabilitation of the survivors is the state’s responsibility. That the state is not fulfilling this responsibility is evident from the absence of credible data; its failure to staff women’s complaint units at police stations; inadequate crisis centres, shelters, medical assistance, trauma counselling/therapy, rehabilitation facilities for survivors; and non-enforcement of SOPs for protection of survivors’ dignity, rights and privacy.

The SCP’s orders for the complete elimination and eradication of jirgas-panchayats must be obeyed at all tiers of the executive, reinforced by strong legislation and punitive measures implemented without political interference.

It is necessary to repeat, ad nauseum: it is not the severity but the visible demonstration of the certainty of punishment that will eventually decrease sexual (and other) crimes, including wrongdoing by state functionaries.

Our state and society, already brutalised since the repression of Gen Ziaul Haq (1977-88), needs a complete reset – away from lessons of hatred and glorification of violence, whether in the name of proxy jihad or hyper-nationalism in a security vs welfare state. We need an agenda of peace, respect and acceptance of all differences: sexual identity, religion, sect and ethnicity.

In the longer term, it is now imperative to start changing socio-culturally ingrained and inherent sexist, patriarchal, misogynist mind-sets through changes in the public education system – school curricula, textbooks and teachers’ training – starting with early childhood education; focusing on life skills-based education; and selecting with particular care the textbook authors of social studies, Pakistan studies, ethics, Urdu and English. The National Education Policy (2018) fails on all counts.

We will not permit the perpetuation of a paternalistic, patriarchal, violent state mind-set. Nor will we stand for the privatisation and miscarriage of justice; or for misogyny to descend into an epidemic of violent sexual crimes going unpunished or forcibly forgiven. The state must urgently acknowledge and address the uncomfortable truth that shame and dishonour reside in the perpetrator of violent sexual crimes, not in the survivor/victim. The clock is ticking. We are watching you.

The author is a defender of human rights

State cannot abdicate its duty