The second sex
By Babar Sattar, The News, April 23, 2011
The writer is a lawyer based in Islamabad.
The Second Sex, Simone de Beauvoir’s seminal work on feminism published in 1949, defined a woman in the following terms: “...humanity is male and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being...And she is simply what man decrees; thus she is called ‘the sex’, by which is meant that she appears essentially to the male as a sexual being. For him she is sex – absolutely sex, no less. She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute – she is the Other.”
The Mukhtaran Mai case establishes that the picture painted by de Beauvoir over half a century ago continues to define the reality for women in Pakistan, especially those belonging to the most vulnerable segments of our society. Notwithstanding one’s position on the reasoning of the majority and minority rulings in the Mukhtaran Mai case, there are a few things that are certain. One, essential components of our criminal justice system, such as the police and the prosecution are incompetent and unprofessional and consequently the chasm between law and justice is growing.
Two, the courts are not immune from extraneous considerations such as public opinion, which in turn compromises the safety of our justice system. And three, coercive social traditions and chauvinistic tendencies are so firmly ingrained in our collective psyche that we are not even unaware of the biases we harbour and their role in entrenching loathsome customs in the name of tradition and honour. But before one begins to bemoan the Supreme Court order it is essential to understand what it has held.
In a split judgment the Supreme Court has rejected the appeal of Mukhtaran Mai against the acquittal of all of the accused for rape and connivance, except the one convicted for rape by the High Court and sentenced to a life term. In other words the Supreme Court has held that there isn’t sufficient evidence to establish that Mukhtaran Mai was a victim of gang rape. It has endorsed the High Court ruling that Mukhtaran Mai was a victim of rape and the prime accused will serve a life term behind bars. A dispassionate reading of the ruling suggests that the Supreme Court has applied settled law to the case and consequently it is hard to disagree with the ratio of the majority ruling.
The principles of law reiterated by the court are as follows: One, that the scope of interference in appeal, especially against acquittal, is extremely limited. In other words it is not for an appellate court to retry cases by initiating a fresh appraisal of evidence, unless the appellant can establish that essential evidence was either not considered or misread. It is settled law that an appellate court should not replace the factual findings of the trial court merely because it would have formed a different opinion if placed in the shoes of the trial court.
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Mukhtaran Mai to file review plea in SC - Daily Times
Mukhtar Mai’s case in Pakistan - Kristof, NYT - March 2009