In the aftermath of the Pakistani Supreme Court decision to free five out of the six men accused of gang raping Mukhtar Mai, some are angered at the Court while others claim this decision was based on sound legal argument and precedent. This case reveals an instance where humans innately feel that injustice has been carried out by their judicial body, regardless of what the letter of the law states. But in modern legal thought, the abject focus on cold rationality represses the judge’s innate sensibility of right and wrong based on their love of humanity. However, the instinctual reflex in favor of justice and equality that judges posses when confronting an unjust law is embodied in the Constitution itself and must be understood more comprehensively than mere logic allows.
The case of Mukhtaran Mai displays how a legal decision may be well-grounded in law, but directly conflicts with our love for our fellow man/ woman. The story goes that Mukhtaran Mai’s family had a dispute with a higher ranking family, and the local jirga decided that she would issue an apology to the high ranking family and there would be a marriage between families. However, when Mukhtaran Mai arrived at the home to issue the apology, she was brutally dragged inside, gang raped by several men, and thrown out into the street naked as a hundred onlookers stood present.
The Supreme Court of Pakistan decided that due to a lack of evidence, only one man could be convicted of the brutal gang rape of this young girl. The case was originally brought under the Hudood Ordinance, which requires the victim to produce four Muslim males who witnessed the actual penetration in order to convict a defendant of rape. Thereafter, the Women’s Protection bill allowed for alternative evidence to be offered such as DNA. However, the courts inPakistanhave continually dealt with a lack of evidence in these cases for two reasons, both of which played a role in the innocent verdict for Mukhtaran Mai’s abusers.
First, local authorities do not conduct proper investigations for accusations of rape, and offer little protection to the victim, which leads to intimidation and violence against the victim and her family. This has created an atmosphere where most rapes go unreported, as victims know they will not be assisted or protected by the state, and the judges are well aware of this frightening trend.
Secondly, the prosecution of rape laws remains ineffective as the Hudood Ordinance continues to cast a shadow on the judgment of courts, which levy injustice after injustice against women. The evidentiary bar for a rape conviction was originally set at an impossible level of four male corroborating witnesses. This was based on a sexist and unjust logic: while the male rapist can individually deny the act occurred, the female victim’s allegations are four times as unlikely to be true, requiring four males to verify the rape occurred. This perception of the untruthfulness of female testimony continues to infect the court as it devalues DNA evidence and testimony from the victim, even though many nations give deference to the victim’s testimony in rape cases.
Yet, despite the inherent injustice in all of this, many have shown deference to the court for asserting its authority by following its precedent cases and the law. Indeed, Musharraf Zaidi, a columnist I hold in high regard, stated that a judge’s job is to execute the law not to act on emotion. This is the central argument under which the jurisprudence of theU.S.andPakistanhas developed, where one must uphold the status quo of the court’s prior decision in order to maintain stability and assert the authority of the Court. Thus, the training of lawyers focuses on repressing, as much as possible, their innate sense of humanity, fairness, and equity- replacing it with whatever status quo policy has been adopted earlier in time, regardless of its injustice.
Though scholars in the legal field pretend that their decisions are not subject to their own personal bias, it is difficult for any human with the job of interpreting words not to add their own subjectivity to the decision. Instead of attempting to cover up this subjectivity and giving it different names, an honest legal mind must accept its effect. Thus, inPakistan, when it came to issues that the judges of the Supreme Court were personally interested in, they found constitutional principles to challenge the political status quo. Yet, when it comes to the right of a woman to face her rapists in court, the Court is less willing to honor its belief in the equality of human beings.
The Court could have easily relied on constitutional principles that buttressed a sentiment of equality in the face of the unjust evidentiary bar set by for women in rape cases. Article 14 of the Constitution guarantees the inviolability of the dignity of man, which is clearly violated whenever a woman’s accusations of rape go unpunished by the court because she can’t produce four witnesses. Article 25 guarantees equality of all citizens and even permits for the state to make special provisions to protect women and children. Such a principle lays the foundation for the legal argument in favor of pursuing justice for Mukhtaran Mai even in the face of some evidentiary inadequacies.
The spirit of fairness inherent in human beings and the cold-rationality of the law are opposite ends of a spectrum, on which a judge should be in the middle. Both can equally guide one to make a decision that preserves the authority of the court while also pursuing justice. However, by focusing on upholding the letter of the Hudood Ordinance, the judges attempted to rely on a false veil between the law and their innate sense of right and wrong.
For legal and non-legal thinkers alike, it is important to value their innate feelings of equality and humanity rather than suppress them, as many are trained to do. The internal moral compass can help to guide a judge to the right decision when used alongside rationality and logic. The Constitution is the legal source which embodies humanistic principles, as it is created to improve the lives of citizens and promote fairness. Thus, when confronted with the requirements of the misogynistic laws which would lead to an unjust result, judges must trust their sensibility and utilize constitutional principles that truly promote equality and the pursuit of justice.