The recent Supreme Court judgment in the Mukhtar Mai case, has led to an interesting dichotomy. There is one faction that has powerfully condemned the verdict, citing a miscarriage of justice. Mai herself has declared in many of her televised interviews, “Is this what the courts made me wait five years for?” Another side claims, that while the judgment is a source of dismay, society and the media is equally responsible for failing the victim.
But it is a third voice that is sure to set tongues wagging and create a powerful division between those for and those against the judgment.
Journalist Bronwyn Curran in her 2006 book on the case “Into the Mirror”, had originally presented another side to the tale, in which Mai was not just a victim of forced rape, but also of tribal politics which went beyond being bartered as cattle. Curran has recently stated in an article, that “I would challenge anyone who has the opportunity to pore through all such records and interview members and associates of all sides in this case to come up with any conclusion other than that 13 of the 14 accused are innocent”.
While Curran does not deny the heinous crime suffered by Mai, she does bring to light several nuances in the case, which have the potential to raise some disturbing questions about how such cases are dealt with on the ground.
As a first point of divergence, Curran states that the case of gang rape was not registered by Mai herself, but by a cleric and a “local journalist-cum-rights monitor”. Could not this detail have ultimately shifted the entire focus of the case, had it been investigated further at that time? Would this not have been a point investigators and rights-groups used to establish any malicious intent against Mai and her family by outsiders hoping to “cash in” on the unfortunate event? If it is true, that Mai or her family did not take the first step to register the case, then why weren’t the cleric and local journalist investigated themselves more transparently by both the prosecution and the defense?
The fact that Mai was suddenly catapulted into an international media storm, as also noted by Curran, is another point of divergence. It potentially even further removed the focus of the investigation from corroborating the events alleged in the case, instead relying more on the fact that an illiterate woman from a poor tribal background had been subjected to indescribable humiliation and pain. Recalling back nine years to the event, memory of news reports were rife with stories of a lone woman’s plight against tribal injustices, followed by the infamous Musharraf misquote of the century.
Again, this does not deny the fact that Mai has been horrifically wronged. But somehow, the blitz of media attention that this case has received, could leave us to question whether perhaps, we allowed too many fine details to go unnoticed, as the case itself became larger than life (as did Mai), that could have perhaps actually gone in Mai’s favour, if correctly proven at the time.
With the absence of forensic kits and proper DNA testing, (neither of which either existed or were appropriately utilised in Mai’s case), it is very difficult to ascertain whether a woman has been raped or not, leaving only her own claim as the primary evidence. In such an event, the investigation typically relies on eyewitnesses, which in our patriarchal society, easily go against the victim.
Knowing well that these weaknesses exist in our society, one would have thought that Mai’s supporters would have paid closer attention to detail in the investigation, in a more organised and protective atmosphere, rather than in an extremely public and hostile environment. If a foreign journalist could come up with a thesis as Curran, then why couldn’t Mai’s counsel and supporters in civil society, do so as well?
Granted that the atmosphere reeked of danger and patriarchal obstacles, but isn’t that what defenders of human rights are meant to challenge? The fact that (as is claimed) the storm of protest in 2005 on the release of five of the accused, which sent them and eight others acquitted right back to jail, was based on outrage rather than physical evidence, has now added to Mai’s current woes.
Mai’s victimisation and experiences from 2002 to date cannot be discounted or demeaned at any level. But the “lack of evidence” as cited by the ruling judges, seems to be as much the responsibility of her supporters and the prosecution, as of a patriarchal and weak Pakistani justice system.
In even the most basic and impartial of judicial systems, evidence presented in a court of law is the benchmark for a final decision, either by a jury or judge. Unfortunately, courts cannot enlist foot soldiers to go out and conduct investigations on their behalf. Rather, it is the result of investigations conducted by law-enforcement agencies to support the prosecution’s case that forms the basis of evidence used by the courts on which to pass judgment.
Resultantly, it is the evidence and its collection that must be questioned, rather than the judgment. At the moment, no one seems to be commenting on the former, only the latter.
There is no question of the fact that a woman has been wronged for the last nine years. There is no question that this woman has set a courageous precedent for other women like her. But we must also realise, that despite her courage, society is still unable to draw adequate attention towards such crimes against women.
This raises two questions. Firstly, does a case have to have the “elements” of a Mai case for the criminal justice system and society at large to take notice of it? Secondly, why is it that when cases such as this come to light, there is inadequate focus on the minute technical and legal details, which are ever so crucial in solving such cases? For how long can we keep using patriarchy and conservative tribal norms as reasons for not delving into the facts head-first?
These questions are not meant to accuse anyone of fabrication or mis-intent. Not even Curran denies that a crime has been committed, as one has to repeatedly acknowledge. What these questions are meant to raise, is concerns over the quality of and methodology used to provide evidence in cases like this, given the conservative and patriarchal structures that go against the (female) victim. Unless both the prosecution and the external advocacy elements are not technically and legally sound in their details, it is just not enough to lay blame on tribal jirga’s and the justice system alone.
If Mai’s appeal is conducted by her supporters in a similar fashion, we will probably never be able to contribute to justice being served in similar cases in the future.
Themrise Khan is a freelance social development consultant based in Karachi who occasionally dares to venture into the Pakistani media.
The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.