Thursday, 29 January 2015

DNA and the Pursuit of Justice

by Ayesha Khan

The press recently reported that the Senate Standing Committee on Law and Justice has approved amendments in the country’s anti-rape laws. If they are passed, DNA profiling will be admitted as crucial evidence during investigation into rape cases. Also it was proposed that medical examination in cases of rape take place only in government-run hospitals and character assassination of victims during the trial be barred.

Not surprisingly, the amendments were proposed by a woman Senator from the Pakistan Peoples Party (PPP), Sughra Imam, and former law minister Farooq H Naek. The party has a track record of passing women-friendly legislation. Readers may recall the Prevention of Anti-Women Practices Act 2011, Acid Control and Acid Crimes Prevention Act 2010, Prevention of Anti-Women Practices (Criminal Law Amendment) Act 2011, The Women in Distress and Detention Fund (Amendment) Act 2011. Two further examples of PPP legislation in the province of Sindh alone are legislation to curb domestic violence, Sindh Domestic Violence (Prevention and Protection) Act 2013, and the Sindh Child Marriages Restraint Bill 2013, which raised the legal age at marriage for girls to 18.

This track record shows that despite the prevailing environment of religious obscurantism, coupled with terror tactics to frighten the public into submission, a sense of equality and justice towards Pakistan’s citizens can prevail in our higher legislative bodies. Not all of our people think the oppression of women is a male status symbol.

Former Amir of Jama’at-i-Islami, Munawar Hassan gave an interview to a television channel last year airing his views on the controversial law passed under President Musharraf, the Protection of Women (Criminal Laws Amendment) Act 2006, which separated the crimes of zina (fornication) and rape, such that if a woman accused someone of rape and could not prove it she was no longer liable to be charged with zina. Hassan thought that this was a terrible idea. He said the Protection of Women Act promoted “nudity, vulgarity and obscenity” in society. He defended the requirement in Islam (for the maximum, or hadd, punishment) of four witnesses to the crime of zina, by arguing that no four decent human beings would stand by shamelessly to watch it take place. Therefore, by making it impossible to prove the crime, the purpose must be that men and women are meant to stay silent about it. Hassan has stated, “I am saying a woman should keep quiet if she has no witnesses.”

The problem with DNA testing, if it indeed becomes law in cases of rape, is that it proves the identity of the accused. This can help to strengthen the defense of the accused or the case for the prosecution. No more keeping things under the covers, Jamaat-i-Islami-style justice.

The current Amir of the Jamaat, Siraj-ul-Haq, recently posted a statement on the party’s website that he had worked out a Charter for Women’s Rights which would be presented to the nation soon. The Women’s Wing of the party is said to be very dynamic, staffed with educated, articulate women who know their own mind and have a clear understanding of their role in helping to create a just and Islamic state in Pakistan. The time has come for them to educate the male leaders of their party about the difference between rape and adultery, and the importance of scientific evidence in bringing criminals to justice.

The Council of Islamic Ideology (CII), whose Chairman is Maulana Muhammad Khan Sherani, a Senator with JUI (F), has made a series of statements that support the position of the religious right. Not only does he oppose DNA testing, but he also is against restrictions on child marriage, polygyny, sex-change surgeries, and test-tube births, as his statements over the past year have shown. The CII is supposed to be an advisory council, and as such staffed by scholars and not political figures. It is baffling why Sherani was made Chairman during President Zardari’s tenure, but there must have been a political calculation that determined the decision. Sherani has never attended a mainstream educational institution, his only qualifications come from two madrassahs, one in Quetta and one in Bannu, according to press reports.  

What the religious right fails to acknowledge, however, is that the Supreme Court ordered in 2013 that the administration of DNA tests and preservation of DNA evidence be mandatory in rape prosecutions and trials (Salman Raja vs Govt of Punjab 2013 SCMR203). Therefore legislation to that effect is long overdue.

The Senate has taken an important step in the right direction, but will the PML (N) government support the proposed amendments? Unlike the PPP, it has no track record of women-friendly legislation, but it does have a track record of accommodation with the religious right