Rape

 

Rape and responsibilities

            Reprehensible, deplorable, despicable, extremely repugnant, and totally unforgivable, indefensible, outrageous, and non-compoundable is the offence rape. However, how much detestable it is, it is still an offence and requires a trial.

            These days, due to the horrifying and appalling motorway-incident of rape, the whole country’s moral conscious is under anguish and pain. No compensation except the punishment could heal the wounds. And as it was claimed in media by authorities, the accused is previously a record-holder. Then the whole country’s question is: why such culprits get scot-free? Why they have a second chance? Why they get acquitted? Whose fault it is?

            Allegation of crime, how much heinous is the offence, is one thing; it trial is another. Many blame the investigating agency; the investigating agency blames the lawyers; lawyers blame the investigating agency and legislators; legislators blame the courts; courts again blame the investigating agency for poor collection of evidence. Awfully no one is ready to accept the blame. Nevertheless, all are collectively responsible.

            Firstly, with regards to the investigation agency, many basic negligences can be removed. Whenever the information is registered under section 154 CrPC of the offence of rape. The Standard Operating Procedure (SOP) for Investigation of Rape Cases, 2013 must be followed by the police. It provides that its investigation must be conducted by a female police officer. The police must behave with utmost sympathy with the victim, so that she may be able to explain the incident. Immediate access of a psychiatrist must be made available to her. The foremost important task is to send the victim for medico-legal-examination forthwith. She must be medically examined with her consent only. No compulsion should be there. Her statement must be got recorded before the magistrate.

Moreover, her clothes should be taken into custody. She must be treated with empathy to get herself ready for cooperation with Medical Officers and Police. Her parents and guardian must not delay in registering and reporting the matter to the police because after three days the possibility of semen detection might not be possible. However, thanks to the honorable Supreme Court of Pakistan that has held, in many cases of rape, that lack of DNA-test-report alone is not sufficient if the case is otherwise proved beyond the shadow of doubt. The male accused should also be passed through a potency test. And lastly, the outdated, medieval, disgraceful, immoral, Two-Finger-Test must be replaced with medically equipped modern scientific procedures and methods.

Secondly, with regards to learned professional trial lawyers. Advocacy is one of the sacred professions. “Wakeel” is one of the beautiful names of God. It means the trustee, the disposer of affairs. What trust is it? If truth be told, it is a two-way trust: primarily, one towards God who gives us the knowledge to do justice, as it is written in Surah Al-Baqara, verse No. 32 “they said, Exalted are You; we have no knowledge except what You have taught us; indeed, it is You who is the Knowing, the Wise”; thereafter towards his client, to prepare, to present, and to assist the court in humble, gentle and in diligent manners. Lastly, if the lawyer knows that the accused did the crime as alleged and he is the real offender, he must refuse to take his case. Because as it opined by God in Surah Al-Imran, verse No. 110 “You are the best nation produced (as an example) for mankind. You enjoin what is right and forbid what is wrong and believe in Allah (SWT)”.

Thirdly, with regards to learned trial courts. A court is a place of hope. Where miserable comes, with a hope to have justice. Justice is another name of feelings. It cannot be seen, rather it must seem to be done. A normal prudent mind can tell in particular circumstances whether justice has been done or not. Then expectations from a judge naturally would be high as compared to him. A judge must have all laws on the sleeves of his robes. His primary duty is to get acquaint himself with updated knowledge of the law. Failure of a counsel to properly assist the court should not be an excuse for him. Then his second duty is to apply the proper application of the law. He must not be swayed away from surmises, presumptions, feelings, rather he must follow the law and law alone. In rape cases, he must understand the facts, the victim, and must have a check and balance on the police officers during investigation, on lawyers during examination and cross-examination, and others during court-proceedings from making harassment and undue annoyance to the victim. He must be neutral and must be conscious all the time. As he is the guardian not only of the victim’s rights but also of the accused person.

Fourthly, with regards to the legislators. The legislation is the duty of legislators. They are being voted and paid to do legislation primarily. But here it is deeply sorrowful and regretful that Pakistan Penal Code was originally prepared by Lord Macaulay in 1860 as the Indian Penal Code and after independence, we adopted it with the same definitions, objects, and offences mentioned therein. The same is with the case of procedural law: Pakistan Criminal Procedure Code 1898. It is 2020. The whole world has changed, except the laws. The nature, mode, and manner of crime have been changed, except the laws. The purpose, object, and effects of crime have been changed, except the laws. Regretful, is it not?

To conclude, Rape being an offence is really a reprehensible, deplorable, despicable, extremely repugnant, and totally unforgivable, indefensible, and outrageous act. And after seeing, again and again, horrible incidents in this country, it has become a norm to blame each other: the investigating agency blames the lawyers; the lawyers blame the investigating agency and legislators; the legislators blame the courts, and courts again blame the investigating agency for poor collection of evidence. Be that as it may, all of them are collectively responsible. So, stop blaming each other. Start supporting each other to not let scot-free these sinners who brought shame for all of us. The sooner the above terse responsibilities acceded by each, the better it is for the safety and lives of the citizens of this country.  

                

 

Hafiz Muhammad Azeem.

The writer is an advocate of the high court and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and teaches law.

 

 

Dissecting Procedure of Family Laws

 

            An Indian judge of the Supreme Court A. K. Sikri observed that the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes a change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in the law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as a change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs.

            One of the chief purposes of a law is to suppress the mischief of the people and to bring ease in their lives. It is designed to bring justice, and not to add chaos in an already tattered and ragged society. And there are always gaps that are required to be fulfilled. There are always loopholes that lids are required to be placed upon. Therefore, courts are also obliged while interpreting and implementing the law to interpret and implement it, if not completely, at least, close to the hopes of people, because it is their hopes through which one can gauge the goodness or badness of a law.

            Are family laws up to the hopes of people? Have they suppressed the mischief they are intended to do so? Herein we will dissect it through practical realities.

            Let us start with ‘Khula’. Theoretically ‘Khula’ is the right of women subject to certain limitations. But practically the process of ‘Khula’ is being misused and abused by parties to the suit. By ‘the process of law’ means the procedure provided by the statutes to deliver justice i.e. remedies. And it is not hidden to anyone that in our administration of justice, it is the process or the procedure of the law that with sheer impunity is abused and misused. What is being happened in process of Khula, the women-party pay nominal bribe to the process server including the newspaper advertisement company to not serve the summons to the proper address. Women while living with the same husband, let not come into his knowledge about the plot that is being maneuvered at his back. Within a short span of time, with a simple disposition of women, she gets divorced.

 

            All of the remaining allegations, although the left a scar on the face of the man like he has illegitimate relationships with other women, he maltreats her, beats her, he drinks, and often not provide food to live to her, are not required to be proved. Moreover, the man has no right to seek defamation charges because the law considers the allegations as immune to defamation. The amazing part lies in the fact that most of these cases are trialed ex-parte.

            Next comes the dowry part. The dowry articles have been given a ‘presumption of truth’ status. In a plethora of judgments, the courts have declared that in our society every parent gave to their daughter the dowry articles. So, the delivery is unquestionable. And when this fact comes into the knowledge of parties in courts, with the advice of loyal lawyers —yet want of legal ethics— they tripled the figures of articles given by them in dowry with a hope that court will come down to the double-figure in judgment. Normally, each financial document is required to be proved by two-attesting witnesses, yet here only the assertions are sufficient. Normally, a receipt is also taken as a financial document that is required to be duly proved. Here in family cases, only the production of receipt is sufficient, despite the fact that in each case it is forged, fabricated, and concocted one.

            Then the maintenance part. Yes, in the sharia, in the constitution, and in the ethics, it is the husband or the father that is required to provide maintenance to his children and better-half. But the question is about the procedure. The ‘presumption of truth’ has again here been given to the assertions of women-party. They are not required to prove as per assertions what the male is earning. The burden to prove is on the male to assert and then to prove what he is earning. Otherwise, courts will decide the case in accordance with the available women party's assertions.

            Be that as it may, the universal principle of law is that he who asserts must prove. Here the exception is created to this grundnorm in the administration of justice, that is being frequently violated. Thus, if not at all, yet one of the reasons to have seen the enormous increase in the ratio of divorce is these family laws. Whenever in administering justice, one party is provided exemptions to prove and disprove, there are hundred percent chances of its abused and misused. Thus, the law should not be silent and it must not be a cul-de-sac. It must always be designed to bring equilibrium, harmony, easiness, and justice as per the hopes of people. And practically speaking, people are losing hope in family laws. These are becoming one of the reasons for segregation amid husband and wife, and sometimes a reason to ignite endless litigation. Thus, it is high time to review the procedure of family laws and to amend it while keeping in due regard to the factual and ground realities.

 

Hafiz Muhammad Azeem

 

The writer is an advocate of the high court, an LL.M. and LL.B. (hons). He teaches law. He writes research-based articles on various topics. You can reach him at Khokhar.azeem@yahoo.com and can read his articles on hmazeem.blospot.com.

 

Presidential or Parliamentary Government for Pakistan

 

Pakistan needs what: a presidential or parliamentary form of government? This debate is not a new one. But now, the debate has been reached in the premises of the Supreme Court of Pakistan. As per facts, two petitions have been moved under article 184(3) of the Constitution, 1973 for seeking directions for a referendum to adopting a presidential or parliamentary form of government.

The petition presents a deplorable state of conditions in Pakistan. The country has become the sixth most populous country in the world with an estimated population of 212 million people and it may reach 403 million by 2050. With one of the world’s largest youth population, as 64%, the country is ranked as 122nd out of 190 countries in the world in terms of quality and accessibility of health care. As 25% of Pakistan’s population lives below the poverty line, the average human development index and the GDP are the lowest as compared to other South Asian countries like India, Bangladesh, Sri Lanka, Nepal, and Bhutan. And behind all these, one of the chief reasons is Pakistan’s fragile political system.

            Likewise, it also has been taken as a ground that “in our parliamentary system, members of parliament are in the habit of changing loyalties and are out to blackmail and pressurize the government to promote their interests”. That is why the current government has to use the power of the president to promulgate ordinance frequently. Premier has also highlighted the legislative obstacles on FATF legislative issues in this regard. Moreover, with the adoption of the 18^th amendment, parochial and racial discrimination increases not decreases.

            But the time has come that Pakistan must adopt the presidential system. The foremost reason is that in the presidential system the head of state is usually elected through a direct election. So, the citizens would have a much clear option to choose the one as their leader. As it can be observed that in our country, voters have limited choices to choose. They are bound due to feudal mind-set and undue-influence to not to vote as per their wishes, since there is no option to ‘vote for prime minister’ like one can vote for ‘president’ under a presidential system.

            Moreover, the stability of government is another advantage—and that Pakistan needs the most. Because opposition parties would not be able to blackmail, like here, to displace the government by hook or by crook, where unstable coalitions, demanding minority parties, votes of no confidence, and threats of such votes, etc make the effective policy-making and implementation near to impossible. And it is prima facie in our country that the Prime Minister is being always tried to be contained in a continuous threat that he may lose his position solely because his party may at anytime lose requisite seats in parliament, even though he may still be popular nationally.

Furthermore, the presidential system will allow for the separation of powers in a true sense, as the legislature will be a completely different structure and institution. And thereby, an effective system of checks and balances will also be placed in governance. Besides, by adopting the presidential system, the president will have more powers to work speedily and effectively; thereby the uniform policy-making along with uniform policy-implementation will also bring positive outcomes to subdue the parochial and racial discrimination. And if citizens cloyed with one person being their president, they may next time flatly refuse to vote him directly, instead of being compelled to vote for their constituency only. And one president with having two-terms to be elected consistently will add icing on the cake to utilize the fruits of democracy.

Although one may argue that there are a lot of drawbacks in the presidential system too: for instance, the rhetoric of authoritarianism, deadlocks between executive and legislature, rigid form of government, nepotism, and favoritism, etc. but all these may not suffice to counter the above-stated reasonings for the presidential system in Pakistan, because the disadvantages of the parliamentary system in Pakistan, currently, have outweighed the disadvantages of the hopeful presidential system.

Besides, the fundamental disadvantage of a parliamentary system that the Prime Minister is unable to be elected unless his party wins the whole country’s election, the other disadvantage is that there is no independent body to oppose and veto legislation approved by parliament, and thus there is a lack of cohesive check and balance system. Moreover, the instability factor, in Pakistan—can never be removed—because whenever the minority parties want, they through coalition, can bring down the majority party’s government.

Furthermore, there are other disadvantages of the parliamentary system in Pakistan which include the unqualified legislators: to be appointed as an assistant, secretary, or even a clerk who understands and runs the basic computer, qualification of Masters level with written test amongst thousands of competitors, then psychological tests and interviews are required; and to be elected as representative the only requirement is mone, a lot of money. Eventually, these unqualified representatives placed more reliance on bureaucracy. Moreover, the Ministers or the executive should be from the ruling party, and thus, unqualified replaces the qualified experts for the job. As it has been held in recent judgment by Islamabad High Court, that advisers to Prime Minister are not Ministers. Last but not least, it is also obvious, in Pakistan, that personal interests outweigh national interests, and the only issues being mostly discussed in the parliament debates, media channels, newspapers, and even in election campaigns, etc are these personal interests.

Since the majority of the developed states are being run through the Presidential system, for instance, the United States of America, Russia, China, France, Turkey, etc the parliamentary system is mostly used in third world countries. This system is given to us by the English Coloniest rulers, and this system has nothing to do with our religion, culture, or with our national norms and behaviors. And forget that if this system is effective in England or Japan, then it will be effective here too. As our citizens, cultures, and norms can never be the same as theirs, so as the system of government too. Therefore, it is high time that a referendum must be called in Pakistan on the question of adoption of the presidential or parliamentary form of government and let it be decided by the citizens.

 

 

Hafiz Muhammad Azeem

 

The writer is an advocate of the high court, an LL.M. and LL.B. (hons). He teaches law. He writes research-based articles on various topics. You can reach him at Khokhar.azeem@yahoo.com and can read his articles on hmazeem.blospot.com.