Rape Survivors And Pakistan’s Legal System
Pakistan has been a site of great infamy when it comes to litigation on rape and sexual assault.
Much of it stems from General Zia-ul-Haq’s infamous Hudood Ordinance 1979 which saw “Zina-bil-jabar” become part of the “offence of Zina” section 6 and 7. This, in accordance to section 19 of the Hudood Ordinance, repealed several sections including section 375 and 376 which related to rape from Pakistan Penal Code 1860 and made Zina either a Hadd offence as mentioned in section 6 and 7 of the ordinance or a tazir offence as mentioned in section 10 of the ordinance. With this the courts were revamped to follow this law which came with its own conditions such as the punishment of hadd requiring four witnesses (no female allowed) and two witness male in case of tazir. This provided much leeway for the accused to escape punishment as in both cases the victim could not be a witness. Moreover if the victim could not prove that rape had happened then she had committed Zina as defined in section 5 of the ordinance, since her very coming forward is seen as prima facie for a confession of Zina and it is up to her to prove whether that zina (fornication) was based on jabar (force) or not.
This, of course, made Pakistan infamous when it came to rape cases and many women, fearing social stigma and lack of legal evidence turning the case on themselves, simply avoided any reporting. However, Pakistan of 2019 and Pakistan of 1979 is very different. In 2006, it was a dictator’s government that corrected this wrong by passing the women protection act of 2006 which amended the ordinance removing the section 6 and 7 and 10 thus removing zina bil jabar and although this was met with great opposition in an already patriarchal society, the law still passed. The amendment saw to it that the victim would be punished in accordance to section 375 and 376 of Pakistan penal code and it removed the restrictions of hadd when it came to evidences. With that the Act also provided for the death penalty to be awarded in the offence which before Zia was not awarded.
The progression of litigation on rape is very slow but the country is making progress. The amendment saw to it that a women that files a rape charge shall never have to bring forth 4 witnesses. And with later amendments under the “the criminal law amendment act 2016″, any women bringing forth such a charge shall not be convicted under adultery – and no longer can the accused bring forth the victim’s sexual history as a defense.
Pakistan is often blamed for forcing its rape victims to bring forth 4 witnesses which is rightly so since in the period of 1979-2006 that’s exactly what we did, however to blame Pakistan now of that barbarity would be unfair since the legal setup has changed entirely. The Supreme Court has looked to pass judgments based on statements from the victim and used DNA evidences to point to the accused along with the medical report. The courts have made DNA kit and test mandatory within 72 hours and immediately with no compromise based on Jirga as valid. In the landmark judgment 2013 SCMR 2003, it was stated that the DNA test must be done as quickly as possible and all available aid to the victim must be given along with their presence in court done through secure channels, statement recorded ideally through female magistrates and female police staff and through camera if they wish and protection of identity of witness, victim and her family from the accused. On top of it all, the court called for the involvement of civil society and NGOs in all such cases. The case looked to answer DNA testing as a significant piece of evidence in the eyes of court which could help the court determine the perpetrators and exonerate any wrongful accused. The court also pointed out that if the victim does not want to continue the litigation, then the state must intervene and continue the litigation as well as the courts. The courts have looked to state that the society penalizes such a victim that comes forward and thus any attempt to come forward must be supported and be taken into consideration.
Along with this, the courts have repeatedly allowed the victim to become witness to the offence as well as the investigating officer and the medico-officer. In the case “Muhammad Siddique vs State” the victim was first witness and was called the most important one. And in the case “Dad Muhammad vs the state”, the ASI and the medical officer were witnesses number 5 and 6 respectively. In many cases the first discoverer of the victim is also counted as a major witness. The concept of 4 male witnesses is no longer valid in Pakistan, nor is it required.
The Pakistan legal system has also kept in mind the inadequacies of the law enforcement agencies and thus made proper amendments such as the “Criminal law amendment act 2016” which saw addition of section 166A deals with the law enforcement agent i.e. police officer which disobeys any direction in accordance to section 336B, 354, 354A, 376, 376A, 376B, 376C and 509, disobeys knowingly in prejudice to any person, disobeys any direction in regards to the medical examination of the victim, or fails to record any information provided then he shall be given a minimum 6 month rigorous imprisonment extending to 2 years and a fine.
Now the act added 166B as well, which stipulated that if medical officers of any hospital, whether private or public, contravene section 545 then they shall be given a fine of Rs. 25,000. And the act inserted 545A which stated that all medical officers and practitioners, be they in a private or public hospital, shall provide medical aid, free of cost to the victim. This means that whichever hospital the victim goes to, irrespective of its nature, must provide all medical aid free of cost.
The act also empowers with Section 129 in Qanun-e-shahadat order to add in that if the victim provides statement that there was no consent, then it will be deemed that there was no consent.
Pakistan still has a long way to go in providing proper litigation options to its rape survivors. But the progress that the country has made from 2006 must be appreciated. Awareness of this progress must be spread far and wide so that all the survivors of this heinous crime are educated on what remedies they have. They must know that they can demand free legal assistance, medical aid and testing as well as counter any lecherous behavior from the law enforcement agencies. They must be given to understand that they do not require a crowd as witnesses to bring the criminal to justice – that their statement, the medical report and the investigation are legally enough to bring forth justice and cases are now placed under a time limit of six months. They must be assured that they can avail all the remedies available.
Laws can only progress when they are effectively implemented. And although implementation is indeed decided by the state, the laws will not be implemented if the people themselves don’t come forward to report incidents pertaining to such laws. Courts will only be able to implement and interpret laws if cases are brought forward to them. It is we, as society, who must protect and support each victim that takes the courageous step of speaking up for themselves rather than attacking and blaming them.
The writer is a lawyer and an animal rights activist working through his association B.R.U Law Associates and the NGO Pro-Nature. He can be reached via [email protected]