The Dilemma of Pakistan’s Judiciary: Between Judgment and Justice
Usman Latif discusses the various lacunas and contradictions in the law due to which justice is not fully served even in judgments that may seem to be judicious.
Pakistan, the land of the pure, operates on a code of law that strives to strictly adhere to the Shariah law. Islam and its code of life is the core of the foundation of Pakistan, and thus the legal framework is a well-wrought system, which is a combination of elements of Islamic law with improvised solutions to problems of a developing country in the 21st century. However, with a majority of its population illiterate and living below the poverty line, a growing section of religious fanatics, and a cream of powerful, corrupt elites – the judiciary is faced with a battle on every front.
It is a common occurrence in Pakistani courts that a judgement is passed – with good intents and purposes – but justice is not fully served. Most prominent in these contradictions are: 1-Law of Evidence in Zina Hadood Cases, 2- the Article 25 of the Constitution of Pakistan 1973 against gender discrimination, 3- The rights of the minorities of Pakistan.
Established in 1979 as part of General Zia-ul-Haq’s Islamization policy, the Zina Hudood Ordinance is a law which deals with the categorisation of sexual offences and rape. However, the original laws held very little protection for women and had a loophole through which many attackers managed to get a clean chit and walk free. Heavily publicized and scrutinized case such as the Safia Bibi Case of 1983 (Safia Bibi V. State PLD 1985 FSC 120) highlighted the need of the hour: a thorough overhaul of the law to ensure that justice is served.
After numerous controversies, campaigns, and appeals for reforms, the Protection of Women Act of 2006 brought a slight relief to the situation. However, a fundamental part – the Law of Evidence – remains intact. This law states that to prove the fact that she has been violated, a woman must have the support of four male eye-witnesses of ‘good repute’.
Thus, any woman who reports an offence against herself, but fails to produce these eye witnesses, is sentenced as an offender in the eyes of law. This is a loophole in the law. Because surely attackers don’t commit their crimes in front of eye witnesses. Four male witnesses of ‘good repute’ would not stand as silent spectators as the man commits rape. How can the victim then satisfy this absurd requirement?
Article 25 and Article 27 of the Constitution of Pakistan 1973, deriving from Islamic law, sets both male and female citizens as equal. Many European countries failed to give their female citizens the same status in their constitution in early years.
In Switzerland, women were given voting rights in 1971 and they got equal rights in 1985. Pakistan is a relatively young country in comparison and has achieved more in this regard.
Article 25 and its amendment 25A was an effective support for judges in cases such as Shirin Munir versus Government of Punjab (PLD 1990 SC 295) for college admission quotas, and Shirin Dokht versus Pakistan International Airlines Corporation (1995 PLC (C.S) 251), when the age of retirement of air hostesses was under debate and the Article 25 and 27 were used to eliminate gender discrimination at workplaces. However, contradictions arose when the very definition of a minor and major female was questioned in combination with the legal processes of child abuse and child marriage.
Recently, a plausible development is the amendment in the Child Marriages Restraint Act of 1929 through a bill passed in the Senate. It sets the age of puberty as 18 years for girls. Previously, a girl was considered a child till the age of 16, whereas boys were legally considered adults after attaining the age of 18. This was not only discrimination between the genders but indirect violation of Article 25 of the constitution. It is also considered ambiguous at the international level. The majority of countries have set the age of 18 years as the marker for adulthood. While the age of consent varies, along with the age required for driving licenses and work permits, the specific age remains the same for both genders – the exception in point being the Pakistani perspective.
It appears to be a contradiction between the Islamic ruling i.e. the attainment of puberty and the scientific fact that girls reach puberty before boys in most cases. However, the age of 16 or 18 may not necessarily be the age of puberty.
While Sindh has amended its laws to set the age of 18 for both genders, the problem in fixing different ages for genders was that child abusers slip through the noose when their victim is judged as an adult, and not as a child, in the court of law. When the rape of a minor is judged as zina, as an ‘adult’ the victim carries an equal share of responsibility – a responsibility a person of 16 years cannot possibly comprehend.
People of diverse cultures and roots have called Pakistan their home in the past 7 decades. They speak different languages and believe in different faiths. When the founder of Pakistan, Quaid e Azam Muhammad Ali Jinnah addressed this gathering beneath the green and white flag, he announced that the State does not differentiate between its people. All citizens of all and any religion, caste, and creed were to be protected by the State, and receive equal opportunities as well as equal rights to justice.
The rights of minorities as held in Article 36 of the constitution are present on paper, but these very rights are neglected by legislative sanctions such as the Ehteram-e-Ramazan Ordinance of 1981.
According to Ehteram-e-Ramazan, if an individual upon whom fasting is obligatory is found eating or drinking in public during fasting hours, they are liable to punishment by law. Restaurants and hotels are also banned from serving food or drink to such individuals. However, in practice, most hotels and restaurants close down completely, effectively yet indirectly forcing non-Muslim Pakistanis to hide away or pretend to fast during the time they are in public during the day. There is no subsequent legislation to fine restaurants or hotels, cinemas and other entertainment areas that do not provide services for the non-Muslim public during Ramazan.
The constitution of Pakistan makes it mandatory for the state to provide protection to all citizens, but subsequent legislation to enforce the effective execution of these provisions is yet to be done. Currently, the deliverance of justice changes colours – at the hands of Ulema and clerics, the jirga and its tribal elders, the judges and lawyers, and quietly, privately within a nucleus in a remote village far removed from the eyes of the law. When the public takes the law into their own hands, justice is that what the majority decides. Confusions arise when a court of law tries to stand its ground against the throes of a differently-charged society.
The controversy of the Saima Waheed Case of 1996 (PLD 1997 Lah 301) highlighted the abstract split between moral, cultural and religious perspectives of justice. Thus, we are witness to the rift between various perspectives; books of law exhibit religiously influenced legalities contesting with feudal laws and limitations – all fighting for space with the text book paragraphs.
A look back at the history of Pakistan shows us a streak of judicial violence – not just physical but also on a more basic, personal level. Be it the influencing of potential witnesses, the coercion of victims to accept blood money in exchange for the aggressor, or the terror of implied retribution.
Contradictions between different sections of the Constitution and the Pakistan Penal Code arise when there is no unified rule of law for all provinces and courts of the country. This has been attributed to the plural legal systems in Pakistan, and the baggage of its post-colonial history; the amalgamation of colonial law, cultural norms, common law, human rights treaties and Islamic law.
Therefore, ‘multiple regulatory norms’ are all part of Pakistan’s legal fabric and the overlapping areas are vaguely left to the discretion of the judge. The examples quoted above are just the very slim tip of a deeply seated iceberg, highlighted not for criticism of the law but for the awareness of the behemoth task facing the judiciary, and the realization of legal pluralism. The intent is to highlight the issues faced by the common man in comprehending the variations and changing rules within society’s different circles. It is of course also a matter of dispensing justice so that the concerned parties may have at least the impression of being fairly dealt with.
Unfortunately, in cases where some sort of justice, however impaired, has finally been dispensed, so much time has elapsed that the concerned parties rarely see the result of their endeavours. Hence, justice delayed eventually turns into justice denied.
The judgements of the courts are not synonymous with justice. Therefore, the justice system needs to be cleared of all inner contradictions. The system needs to protect the interests of the minorities and the downtrodden.