South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

“The dignity of man … shall be inviolable.” — Article 14 (1) of the Constitution.

AMONG the facts highlighted in the wake of the motorway gang rape outrage is the extent to which the ruling elite has been brutalised and the way it is further brutalising ordinary citizens. The punishments suggested for assaults on women and children reveal not only a total disregard of civilisational values but also ignorance of the country’s Constitution and its obligations under international treaties.

The incidence of gang rape in Pakistan is quite high and such cases rarely cause public outrage. But the motorway gang rape hit a sensitive nerve and caused public revulsion on an unprecedented scale. However, the ruling elite went berserk while proposing punishments for the perpetrators of the heinous crime. The proposed punishments ranged from public hanging to chemical castration of the culprits. The lead was unfortunately taken by the prime minister who supported public hanging and chemical castration both.

All those backing the utterly barbaric punishments betrayed a stunning ignorance of Article 14 (1) of the Constitution, regarding the inviolability of the dignity of person. This guarantee of inviolability of the human person, the only right in absolute terms the citizens have, is not aimed at protecting the dignity of the privileged as much as it offers protection to underprivileged people who come into conflict with the law. All suggested punishments that violate the right to the dignity of person are inadmissible in a debate on the subject.

Besides, suggestions of chemical castration have already been overruled for being contrary to Islamic injunctions by the chairman of the Council of Islamic Ideology.

The experience of all nations shows that severe penalties do not cause a decline in crime.

Anyone in the administration could have informed the prime minister and other members of the government that Pakistan is a signatory to the Convention against Torture which also bars cruel, inhuman and degrading treatment or punishment.

The government should examine the final report of the committee on torture on Pakistan’s initial report in 2017 and assess the level of compliance with its recommendations that Islamabad has supported or noted before defending its performance in May next year.

The prime minister has blamed foreign governments for tying his hands and preventing him from moving mountains for the public good. It is time this bogey of foreign hands’ involvement in Pakistan’s affairs was laid to rest. There is much in the affairs of the state that is in violation of the Constitution and the laws and that cannot be attributed to foreign authorities. Besides, good governance is not demanded to please foreign governments. It is demanded as a fundamental right of the people. Let the government exercise its authority as much as it wants and in a manner of its choice. If the people are incapable of judging the government’s performance, history will.

The whole hankering for cruel, inhuman and degrading punishments is based on a misconception that severe penalties deter crime. The experience of all nations in the world shows that harsh punishments do not cause a decline in crime. Pakistan has been trying to control crime by increasing the severity of punishments. At independence, the death penalty was prescribed for only two offences; today it can be awarded for 27 crimes. Each year, the death penalty is awarded to several hundred persons. During 2015-2017, for instance, 385 persons on an average were sentenced to death each year. Has this reduced the number of murders per year? Did the murder rate in Pakistan come down during the Zia regime? There was a time when the punishment for stealing a mare in England was death. That didn’t stop the stealing of mares. What helped bring down crime in England was far-reaching reform in the system of criminal justice, industrialisation, greater prosperity and improved job security.

The key to crime management does not lie in raising the scale of punishments but in making the legal processes efficient by establishing what is called the majesty of law, and that is secured by ensuring that no criminal can escape being caught and punished. The government must investigate the causes that have brought the conviction rate to less than 20 per cent. This gives a criminal reason to believe that he will not be caught and if he is unlucky to be apprehended the chances of his being convicted are at most 20pc. Who doesn’t know about inefficiency and corruption in the investigation and prosecution of cases and the fact that at the level of subordinate courts there is nothing that money cannot buy?

A most fundamental flaw in official thinking is that serious crime, such as gang rape, is viewed selectively and treated entirely as a law-and-order matter. In an incident of gang rape, perhaps as shocking as the motorway incident, reported from Punjab the other day, a woman was gang raped by dacoits in front of her husband whose hands and feet had been tied up. No person in authority felt outraged because each and every gang rape is not denounced. There is, in fact, considerable acceptance of gang rape as something of an unfortunate occurrence about which nothing can be done.

Further, no evidence is on record that gang rape or any other heinous crime has been investigated or analysed from social and psychological perspectives. Very young girls are raped and killed with frightening regularity despite the hanging of a few culprits but apart from making laws to prescribe tougher penalties the government has not undertaken or sponsored any study of the causes of assaults on young girls or the methods of protecting the victims through their and their parents’ education.

A fact that is hardly ever taken note of is that much of the crime against women and girls has its roots in the patriarchal culture that has become stronger over the years, mainly as a result of the state’s deliberate failure to acknowledge women’s right to equality with the male species. Without affirmative state action to establish gender equality, all spasmodic efforts to protect women against sex fiends will prove in vain.

Published in Dawn, September 24th, 2020

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