GENDER based violence (GBV) is an umbrella term for any harmful act
perpetrated against a person based on socially ascribed (i.e. gender)
differences between males, females and transgender. It includes acts that inflict
physical, sexual or mental harm or suffering, threats of such acts, coercion
and other deprivations of liberty. These acts can occur in public or in private
spaces. Common forms of GBV include sexual violence (rape, attempted rape,
unwanted touching, sexual exploitation and sexual harassment), intimate partner
violence (also called domestic violence, including physical, emotional, sexual
and economic abuse), forced and early marriage and female genital mutilation.
GBV is recognized as a widespread international public health and human rights
issues and is not merely a problem but a crises. Women still face significant
barriers in accessing justice, whether they are victims, witnesses, alleged
offenders or prisoners.
Criminal justice systems tend to focus on the
needs of a predominantly male population of offenders and prisoners. The data
collected reveals that the conviction rate in rape trial was very low all over
the world. In these cases,
accused were acquitted because of compromise or cases
were consigned to record room for reason that victims did not appear in courts
to give evidence. This leads to a false perception that rape cases in Pakistan
are falsely reported. There are number of challenges rape victims face.
Attorney pose questions, solely deigned to humiliate and intimidate. Delaying
tactics, searching questions
and long typical cross examinations conducted
with sole purpose to harass the victims urging to get their cases decided and
all stake holders with typical mindset do not even bother to look into the
reasons which are important:
- Why victims do not appear in courts to give evidence?
- Why in large number of these GBV cases compromise takes effect?
- Why there are only acquittal in these cases?
It is estimated that less than 10% of female
victims/survivors globally seek assistance from the justice system. Forming of
empathetic view for the women victims/survivors was required. Statistics will
tell you that a few hundred GBV cases are reported to police that is not even
the tip of iceberg because majority of offences are even not reported and even
if they are reported there is a little chance of conviction as the perception
amongst the masses is that she was at fault or she was a consenting party
without considering the fact that her account might well be true or the cases
might not be properly investigated. The victims in such cases are adjudged
prior to their account being tested on the touchstone of evidence.
Baca Juga: Perubahan Iklim, Yurisprudensi dan Hukum Lingkungan Pakistan
So, what
happened when the
case is registered? Police is
regarded as gate keeper to the Criminal Justice System and it is very hard for
survivors belonging to lower income groups even to get the police believe that
they have been raped especially if she is pressing charges against somebody who is better off in terms of
money or in terms of social
position in society.
Due to this mindset of investigation agency,
in GBV cases, shoddy investigation is logical corollary, so when the case
reaches the court for trial suffers from loopholes and infirmities. After going
through the bail proceedings when the cases reach the stage of trial the real
problems ensue. Even decision of pre- arrest bail applications of the accused
may take long time.
When victims step in the witness box in an
un-conducive environment tough, typical, scandalous and searching questions
were asked from the victim as if she is on trial, not the accused. These
questions are humiliating, intimidating and asked in open court in front of the
accused and other litigants. Judges mostly don't stop these questions to be
asked and after the omission of Article-151 Sub-Article 4 of the
Qanoon-e-Shahdat Order 1984 there is no scope to ask these sorts of questions.
If a lady doctor who conducted the medical examination comes to court to adduce
evidence regarding Medico Legal Reports, scandalous questions were asked just
to humiliate her and if she is young she often gets worse treatment. The trial
is protected by defense lawyers just to make it a test of nerves. Hence
majority of cases were consigned to record rooms or compromise/resiling
statements were made to avoid these precarious and humiliating situations.
Unfortunately, no one realized these barriers.
In the backdrop of this, Asian Development Bank provided technical assistance
on judicial training, capacity building initiatives and the first-ever
gender-based violence court was established in Lahore in 2016, the first court
of its kind in South Asia.
Before establishing this court intensive
training on gender sensitive issues was the eye opener to identify these issues
faced by women particularly victims day in and day out in judicial system. Main
focus of training of judicial officers and other stake holders was on Gender
Sensitization, National Gender Laws, Culture of Pakistan, Relevance of
International Standards, Gender-sensitized Judicial Conduct and GBV against
Women. The general atmosphere of the courts, the loud environment, the imposing
counsel and the close proximity of the victim/survivor the perpetrator combine
to intimidate and traumatize victims/survivors. Main focus of training to
judicial officers was to sensitize them and realize the latent perception of
the society of victim shaming. Practice Notes were designed and guidelines were
issued by the Lahore High Court for GBV Courts for recording evidence of
victims of GBV cases and trials were put on fast track. The results of this
effort were astounding which paid high dividends and in less than a year the
conviction rate for rape cases tried in this specialized court rose from zero
to 16.5 percent. Revolutionizing the atmosphere for the victim in the GBV
courts was of a great help. Victim friendly judicial system was created to
control the variables which became impediment in the way of justice. Extreme
care and caution is required in writing orders and judgments in GBV cases.
The language of court must be cold. Failure to
prove charges by victim does not give any authority to demean her or rebuke
her. The failure could be due to various factors beyond her control such as
shoddy investigation, weak prosecution, witnesses won over so on and so forth.
Any adverse remarks by judge becomes verdict which further exacerbate the
plight of emotionally fragile victim coping with the stigma. A reformist spirit
espoused by the judiciary, parliament and civil society organizations resulted
in laws such as the Criminal Law (Amendment) (Offences Relating to Rape) Act,
2016, Sindh Domestic Violence (Prevention and Protection Act), 2013 and Anti
Rape Act 2020, have further paved the way for a stronger commitment to fight GBV
and enhance legal protections afforded to victims of such crimes. However, the
challenges still lie in implementation of these laws. There are two recent land
mark judgments rendered by Lahore High Court, Lahore and Supreme Court of
Pakistan in Sadaf Aziz Case and Atif Zareef case respectively. These judgments
are beacon of lights showing us the way and guiding the judges to the right
trait. Here extracts from judgment of Atif Zareef case are shared:
“A woman whatever her sexual character or
reputation may be, is entitled to equal protection of law. No one has a right
to invade her privacy on the ground of her alleged immoral character”
"In a criminal trial relating to rape it
is the accused who is on trial and not the victim"
In Pakistan, the establishment of Gender-Based Violence (GBV)
Courts across every Sessions Division marks a significant advancement in the
judicial landscape, particularly in addressing the sensitive nature of cases
involving female victims. These specialized courts are designed to handle cases
of gender-based violence exclusively, ensuring that the complexities and
nuances of such cases are understood and addressed with the utmost care and
sensitivity. The focus on providing justice to female victims has been a
priority, and the results are beginning to reflect this commitment. The
conviction rate in these cases is on the rise, indicating a growing confidence
in the judicial process and a recognition of the importance of holding
perpetrators accountable for their actions.
Previously, many cases of gender-based violence faced challenges
in terms of prosecution, often resulting in low conviction rates and a reliance
on compromise or retraction of statements by victims. However, the
establishment of GBV Courts has led to a notable decrease in the ratio of
compromise and retracted statements, as these courts are equipped to handle
cases with a focus on the merits of the evidence presented. This shift is
crucial, as it empowers victims to pursue justice without the fear of being
coerced into withdrawing their complaints. The judicial system is now more
attuned to the needs of female victims, providing them with a platform where
their voices can be heard and their rights upheld.
The superior courts of Pakistan have played a pivotal role in shaping
this positive landscape through their judicial pronouncements. Their rulings
have not only clarified the legal framework surrounding gender-based violence
but have also set precedents that reinforce the rights of victims. The courts
have emphasized the need for a gender-sensitive approach in handling cases of
violence against women, recognizing that traditional judicial practices may not
adequately address the unique challenges faced by female victims. This
progressive stance has encouraged a more empathetic and informed approach to
justice, fostering an environment where victims feel supported and empowered to
seek redress.
Moreover, the judicial pronouncements have underscored the
importance of comprehensive training for law enforcement and judicial officials
in dealing with gender-based violence. Such training is essential to ensure
that those tasked with implementing the law are equipped with the knowledge and
skills necessary to handle these sensitive cases effectively. The establishment
of specialized units within law enforcement agencies, including female officers
in investigative roles, has further enhanced the responsiveness of the system
to the needs of victims.
As a result of these concerted efforts, the future holds promise
for further advancements in the fight against gender-based violence in
Pakistan. The increasing conviction rates and the decline in compromises signal
a shift towards a more robust and effective judicial response to such crimes.
This trajectory not only reflects a commitment to justice but also serves as a
deterrent to potential offenders, reinforcing the message that gender-based
violence will not be tolerated.
In conclusion, the establishment
of Gender-Based Violence Courts and the proactive stance of the superior courts
in Pakistan represent a significant step forward in the pursuit of justice for
female victims. The rising conviction rates and the decreasing reliance on
compromises are indicative of a judicial system that is evolving to meet the
needs of its most vulnerable citizens. The judicial academies of Pakistan have
played a crucial role in imparting training to all stakeholders involved in the
justice system, particularly concerning gender-based violence cases. These
training programs have significantly contributed to changing the mindset of law
enforcement officials, prosecutors, and judges, fostering a more
gender-sensitive approach to handling such cases. By equipping these
stakeholders with the necessary knowledge and skills, the academies have
enhanced their understanding of the complexities surrounding gender-based
violence, ultimately leading to more effective implementation of laws and a
greater commitment to ensuring justice for female victims. This shift in
perspective is vital for creating a supportive environment for victims seeking
redress.
As these changes take
root, the expectation is that the landscape of justice for victims of
gender-based violence will continue to improve, paving the way for a future
where such crimes are addressed with the seriousness and urgency they deserve.
The commitment to justice and the protection of women's rights is not only a
legal obligation but a moral imperative that will shape the future of society
in Pakistan.
This decision demonstrates that the constitutional right to dignity forbids consideration of gender stereotypes in gender based violence cases because the constitution provides that the right to dignity shall be inviolable, the independence, identity and free choice of women should be respected. Hon'ble Supreme Court of Pakistan further observed that the right to dignity, the only one that is non-negotiable. In Sadaf Aziz case while conducting medical examination of rape victims the practice of two fingers test was held illegal while observing that the status of hymen is irrelevant and scope of medical examination is only to determine whether alleged victim was subjected to rape. Although the threshold is not yet achieved but the positive step has been taken in right directions on the subject. We in Pakistan are committed to jealously guard and improve this journey. (fac, bs, Research and Development)
Author:
Baca Juga: Femisida Dalam Kerangka Hukum Indonesia
Shazib Saeed, District & Sessions Judge is presently working as District & Sessions Judge. He is also visiting faculty of Punjab Judicial Academy, has also taught law student of Kinnaird College and Quaid-e-Azam Law College.
- 2021 P Cr. LJ 205 [Lahore] SADAF AZIZ and others — Petitioners Versus FEDERATION OF PAKISTAN and others---Respondents
- PLD 2021 Supreme Court 550 ATIF ZAREEF and others — Appellants Versus THE STATE---Respondents
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