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October 29, 2012
Posted by Zainab Qureshi, LLM '12
Last March, a 13-year-old girl named Ayesha was gang-raped by three men in the small village of Ratta Amral, which is situated on the rural outskirts of the city of Rawalpindi. I was many thousands of miles away when it happened, finishing up my LLM degree at Harvard Law School. I had always wanted to work in human rights litigation—women’s rights, in particular. But even I had never heard of Ayesha’s case.
This is not surprising. Even as sexual violence continues to escalate in Pakistan, only a small proportion of reported incidents of rape get much attention, let alone result in convictions. From the moment the rape survivors and their families file a complaint with the police, they face immense pressure to recant their statements and resolve the matter “out of court.” The pressure comes not only from the accused, but from the family of the accused—and often in connivance with the police, the prosecutors, and the judges.
In Pakistan, because rape is considered an offence committed against the state, a case cannot be settled between the parties out of court, for example, in exchange for compensation. Still, “out of court settlements” do exist in these cases; they are simply brokered by the accused and the state agents. Judges then rely on these settlements to exercise their power (under Section 265-K, Code of Criminal Procedure) to acquit the accused at any stage of the trial, provided the probability of a conviction is slim or non-existent.
This is exactly what happened to Ayesha, as I found out when I returned home to Pakistan to work for the law firm of Raja Muhammad Akram & Co. The firm had taken on her case, and for good reason: Ayesha’s case illustrated everything that was wrong with the justice system for women in Pakistan.
Shortly after the rape, facing isolation in her village and inaction by the police, Ayesha tried to commit suicide. Finally, the media became interested, and the Chief Justice of the Pakistan Supreme Court, through a suo moto action, took notice of the police negligence and apathy, ordering an investigation.
But when the case was at trial in the District Courts, Ayesha’s family was coerced into an “out of court settlement” with the accused parties, pressured by both the police and a jirga (informal village council) constituting of members of their community. The Prosecutor General then accepted the settlement as a basis for dropping the charges against the accused parties.
To address the prevalence of such miscarriages of justice in Pakistan’s criminal justice system, our firm filed a petition, titled Salman Akram Raja and Another v. Government of Punjab and others, under the public interest jurisdiction of the Supreme Court. The petition asked, first of all, for the issuance of direction to the Prosecutor to proceed with action against the accused parties (including the negligent police officers), which the Supreme Court accepted, directing the District Courts to resume the trial.
The second part of the petition ran into more resistance. It asked for the issuance of directions to the lower courts, police, and prosecutors for the institution of safeguards to insulate rape survivors and their families from pressures to enter into “out of court settlements” with the accused.
The safeguards we proposed are based upon extensive research on the successful conduct of rape trials in comparative jurisdictions. They include establishment of rape crisis cells at police stations; mandatory DNA testing and preservation of DNA samples in rape cases; in camera trials, placing of screens between the survivor and the accused in court; and allowing survivors’ statements to be recorded through videoconferencing.
After several delays and adjournments, the entire petition was finally accepted by the Supreme Court on October 4. However, the final order remains pending.
The trial of the accused parties is underway in the District Courts, and the accused—along with the jirga members, who coerced the family to enter into the settlement—are currently in remand, a form of imprisonment during trial. During the last hearing, one Supreme Court Justice fittingly commented: “What has happened to Ayesha can never be reversed. However, we can extract something positive from this case by ensuring that such miscarriages of justice do not reoccur.”
Zainab Qureshi, LLM ’12, is an associate at the law firm of Raja Mohammad Akram & Co. in Lahore. She is also an independent consultant on maternal mortality litigation in Pakistan for the Center for Reproductive Rights.
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