NOTHING bothers Pakistan experts more than the following scenario. Coiffed and primped in suit and tie, a reassuring continental breakfast in their bellies they are attending a conference in Washington or Amsterdam, London or Doha.

There, in the midst of answering questions about Pakistan’s strategic importance, the grim inner workings of the ISI, the politicking of this or that terror group; they are asked: “What do you think of the Mukhtar Mai case?” Through pursed lips they spout some adequately rehearsed expressions of concern; inwardly seething against the elevation of a poor woman to prominence and made into a matter deserving their attention.

But now the Supreme Court of Pakistan has issued a lengthy judgment on the Mukhtar Mai case in which all but one of the accused have been acquitted and the decision of the Lahore High Court affirmed. Procedural justice, it can now be argued, demanded such an outcome, Pakistan is not failing to prosecute rapists, but rather upholding the rule of law under which the ‘lack of evidence’ necessarily results in the acquittal of the accused.

The Supreme Court’s decision comes months after the Federal Shariat Court in Pakistan ruled that the Women’s Protection Act of 2006 was unconstitutional. The act had amended the Zina and Hudood Ordinances so that rape complaints could not be considered confessions of adultery and fornication under the latter; a travesty which could once again become possible in June this year.

One concept introduced by the Supreme Court in its decision on the Mukhtar Mai case is the ‘triple presumption of innocence’ which the decision asserts applies to the accused rapists. Because there is little discussion of this concept, it is unclear what burden of proof it imposes or how such a burden may be rebutted by future rape survivors pursuing cases in court.

Indeed, the Supreme Court states not simply that such a presumption exists but also that “it cannot be dispelled by complainant’s counsel on any score whatsoever”. Some of the rhetorical questions used by the court for emphasis further complicate the issue.

For example, in one portion of its decision, the court questions the credibility of Mukhtar Mai’s testimony asking how she could “in the darkness identify eight persons by name and parentage”, while going on to assert in another section that …“there were 200/250 people present at the place of occurrence; can all of them be held responsible?” Ensuing pages allege the inadequacy of evidence, the botched FIR, the sloppy prosecution all paving a path to an acquittal for the accused.

As a lawyer I could cite example after example of these legal liberties taken by the court and draw the reader’s attention to the problems of an appellate court making speculations about Mukhtar Mai’s capacity to identify her rapists, of re-weighing the evidence on its own accord, of imagining a system that treats women equally when they try to lodge an FIR. But all of this is already known.

What is new and notable about the decision is its capacity to package patriarchy and chauvinism in legal procedure, eliminating tradition or culture, the suspects of old, and installing in their place the idea that procedural justice demands such an outcome.

In this last respect, the decision in Mukhtar Mai’s case exposes the two-headed curse afflicting Pakistani women, who must live in a pre-feminist society with access to post-feminist ideas. In a Pakistan where choice and coercion exist side by side, courts can pretend on paper that rape victims have access to prompt investigation and evidence collection and ignore a reality in which both present tremendous obstacles On one hand are rabid mullahs that see women only as temptation, to be shrouded in burkas and eliminated from the public sphere. Their strategies are well known and amply dreaded; their recipe relies on the reduction of Sharia to Hudood laws and the distillation of all Islamic virtues to control over sexuality.

If all women don niqabs, they say, the problem of rape would simply be eliminated if it even exists in the first place. The second more insidious misogyny faced by Pakistani women is harder to identify. It draws its impetus not from Islam, but from a hodgepodge of machismo and male insecurity happily paired with slogans that feminism is passé and feminists are man-hating hussies.

Far from eliminating women from the public sphere, this brand of Pakistani chauvinists wants very much to keep them around but within clearly circumscribed limits. If religious clerics condemn women as the source of temptation, the latter reduces them to objects of conquest. Nursing prejudice in their cologne-infused hearts, remnants of an early rejection by a cousin they wanted to marry or some autocratic female boss of old, they dread a world where lecherous attentions become legally actionable.

If gang rape begins to be prosecuted and its perpetrators put to death, a world where they have to edit their flirty banter in the workplace is not far away. These educated men, executives and bankers, accountants and judges, may not be mullahs but they enjoy dominance just as much. Women deserve freedom, they insist, but only to the extent that it makes their conquest more meaningful.

Pakistani women have much experience in the task of resisting the overt religious fundamentalism, but the latter, the secret suit-wearing, mocha-sipping women-haters, are just as formidable a challenge.

Resisting their arsenal is avoiding the clever trap in which they tell you that being objective, understanding and intelligent requires pretending that you’re not a woman at all, that being open-minded means never taking offence at lewd jokes, and ultimately that misogyny cleverly dressed up in legal jargon is, in fact, justice.

The writer is a US-based attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com