Ministry disapproves of two-finger test, seeks its discontinuation

Updated 10 Oct 2020

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The Lahore High Court is seized with two public interest litigation petitions which have challenged the two-finger test. — AP/File
The Lahore High Court is seized with two public interest litigation petitions which have challenged the two-finger test. — AP/File

ISLAMABAD: The federal government has disapproved of the two-finger test (TFT) — an old method of examining sexual assault survivors — and recommended that it should not be part of any medico-legal examination report in rape/sexual assault cases.

The Ministry of Law and Justice has intimated the Additional Attorney General at Lahore, Chaudhry Ishtiaq Ahmed Khan, about the recommendation. He will now inform the Lahore High Court about the federal government’s stance.

The court is seized with two public interest litigation petitions which have challenged the TFT. One petition was filed by Shaista Pervez Malik, a PML-N member of the National Assembly, while the other by a group of women’s rights activists, academics, journalists and advocates. They are Sadaf Aziz, Farida Shaheed, Farieha Aziz, Farah Zia, Sarah Zaman, Maliha Zia Lari, Dr Aisha Babar and Zainab Husain.

The petitioners contended that the TFT was disrespectful, inhumane and violated women’s fundamental rights.

At a previous hearing last month, the Punjab Specialised Healthcare and Medical Education Department and the Primary and Secondary Healthcare Department had observed in their submissions to the court that the TFT had limited evidentiary value vis-à-vis determination of virginity and, therefore, should be struck off the protocol of medico-legal certificate (MLC).

Petitioners call the procedure disrespectful, inhumane

The Lahore High Court is expected to resume the hearing in the first week of next month, but in the meantime, the law ministry has come out with its response on the issue. It will be placed before the court during the next hearing.

The court sought the ministry’s response after going through a statement by the World Health Organisation.

In a statement, the law ministry observed that the TFT was an inconclusive test. In addition, the manner in which the test was conducted violated Article 14 of the Constitution which lays down that human dignity and the privacy of home must be respected under all circumstances and that the right to privacy would take precedence over any other inconsistent provisions of the law.

The law ministry recalled how Article 151(4) of the Qanoon-i-Shahadat Order of 1984 allowed an accused to challenge the character of a rape victim in his defence. But through Section 16 of Act No XLIV of 2016, Article 151(4) was omitted and a logical conclusion of this action was that the two-finger test and the manner in which it was carried out amounted to challenging a victim’s character. This cannot be permitted, the ministry added.

Through their petitions, the movers had sought a declaration that these practices constituted a violation of women’s fundamental rights, including the rights to life, privacy, dignity, bodily integrity, access to justice, protection from cruel, inhumane and degrading treatment, and freedom from discrimination.

The petitioners further contended that this test nurtures myths and inaccuracies about female anatomy by ignoring the prevalence of different forms of sexual violence against women and children.

The petition regretted that the test was still rife in the country despite calls for its revocation by healthcare professionals and human rights organisations the world over.

“The continued use of TFT and hymen tests does not lead to any evidence that should be considered relevant to a trial and is aimed solely at drawing conclusions about the character, morality, chastity, social standing, past sexual activity and credibility of women who have been victims of these crimes,” it said.

The petition pointed out that the Human Rights Watch, UN Human Rights Organisation and the World Health Organisation have called for the elimination of the TFT. The WHO has declared virginity testing “is unscientific, medically unnecessary and unreliable”.

The petitioners called upon governments to take measures to ensure physical and mental health of all women undergoing medico-legal examination and to adopt scientific methods of investigating claims of rape and sexual assault.

Published in Dawn, October 10th, 2020