Raza Habib Raja
Today the Supreme Court acquitted the rape suspects in the internationally famous case of Mukhtaran Bibi. For the last many years the case had captured the imagination of the country and had also propelled Pakistan in the international spotlight and as usual for all the wrong reasons. The brave stance by an illiterate woman highlighted several deeply controversial aspects of Pakistani patriarchal society and its disgusting treatment to women. The case highlighted the deeply flawed tribal “justice” system which in its essence is based on eye for an eye doctrine and is therefore completely divorced from modern day notions of human rights. The case also underlined the complete lack of understanding on the part of the society which women who are unfortunately raped in Pakistan face. Instead of punishing the perpetuators, the tendency of the society is to generally blame the woman. In this case however Mukhtaran Bibi was actually sentenced to be raped by a Jirga and today it seems has been raped again through the decision made by the apex court in Pakistan. Throughout the long ordeal, Mukhtaran Bibi got fame and global respect but not even in one instance got what she was looking for: Justice. The tribal court sentenced her and formal legal system acquitted those who had initially carried out the “justice” served by the tribal court.
There are some people who are calling the Judiciary as “Pro Rape”. I do not agree with this assessment because the entire system as well as society has a strong predisposition against the raped woman. It is not Judiciary but the entire setup. Judiciary only makes a decision on the base of evidence presented. Let us not forget that first pressure on a woman who is raped is to keep silent for the sake of maintaining family “honour”. This pressure is emanating from our male dominated set up which tries to gauge respect in terms of female chastity. It is extremely rare that a woman musters up enough courage to seek legal recourse. That decision is often very difficult to take because instantly it pushes her under negative spotlight and leads to negative publicity if her rape has not been a widely known incidence. In case it is already known then the existing negative reputation is further intensified. So the first pro rape disposition comes from the society and its general mindset. This obsession of measuring “honour” through female chastity becomes a huge hindrance preventing the raped woman from seeking justice.
Secondly even if the woman some or the other musters enough courage and is supported by her family, then the legal system actually expects her to provide concrete proof. In criminal cases, evidence is strongly needed and it becomes extremely difficult for the woman to come up with such evidence. In fact the Hudood ordinance actually expected a raped woman to produce 4 male witnesses which in practice was impossible. Consequently it turned victims into criminals in the eyes of law. A raped woman for the fear of being treated as criminal would simply not report. In fact there are several incidences where rape resulted in unwanted pregnancy which in turn resulted in the raped woman being put behind bars. Hudood Ordinance virtually made consensual sex and rape indistinguishable in the eyes of law. The Hudood Ordinance which was subsequently replaced by Women’s Protection Bill in 2006 was a huge anomaly in the legal system and contained perverse incentives for all the prospective rapists. It was shameful that state was instrumental in actually implicitly promoting rape. The state law and the Judicial system with overemphasis on “proof” became a de facto accomplice with the rapists. In 2006 finally the black ordinance was amended and rape was brought under Pakistan Penal Code which was based on civil law and not Shariah. The amended bill, at least in theory, eliminated the need of producing four male witnesses to attest that the woman was raped and did not indulge in consensual sex. However even the so called Women’s Protection Bill is under criticism for being more of an eyewash rather than actually changing the status quo.
Our society, its patriarchal structure and the legal system, all contain perverse incentives to rapists. Mukhtaran Bibi’s case in some ways was an opportunity to make concrete changes in the status quo. It was a rare case where a woman took a stand and got international publicity which insulated her from certain pressures which other women regularly face. The international spot light meant that there was, for a change a pressure on the state as well as the judicial system to actually punish the perpetuators instead of the victim.
It had the potential of being a land mark case and had extremely high symbolic importance. By acquitting the five men due to lack of sufficient evidence the apex court has inflicted a huge set back to the women’s rights in Pakistan. I understand that eventually a court decides on the basis of hardcore evidence and perhaps evidence was not enough in this case. But what the honorable court needs to understand is that in rape cases evidence is difficult to collect. In Pakistan there are no sophisticated criminal forensic tools and moreover due to huge social stigma attached with rape, no woman can actually falsely accuse men of rape. In rape cases the normal rules of evidence need to be relaxed.
In the course of history of a nation, some tragedies while being horrific nevertheless also provide it with the opportunity to successfully challenge the deeply imbedded perverse practices. Mukhtaran Mai case was one such case and today we have lost that opportunity to dent the fabric of this pro rape society. If a woman who had the international support behind her cannot get justice, then frankly what is the chance of ordinary women?