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THE discovery last month of organised child abuse in Kasur sparked intense moral outrage throughout the country with some even taking to the social media with calls of ‘death to the perpetrators’.
Over the next couple of weeks, however, this furore appeared to be replaced by a stony silence. Whilst some attributed this hush to the government’s desire to bury the incident, to me it seemed a manifestation of the stigma attached in Pakistan to any discussion on any issue related to sexuality combined with what seems to be a national desire to quickly cast aside all things unpleasant.
There are, however, practical concerns regarding this case that loom larger than any outrage, conspiracy theory or stigma that may be attached to it, that must be addressed if the perpetrators are to be punished in accordance with the law. The police have already arrested seven men and an investigation is under way to identify additional culprits.
Once this process is complete, these men will face a criminal trial in the course of which the victims of child abuse will be required not only to give evidence against the very people who may have abused them but also to relive some of the most painful moments of their lives.
If witnesses are not protected the Kasur case will fail.
Child abuse cases of similarly heinous proportions had been discovered in England only a few years ago, in Oxford and Rotherham. In both cases, gangs of Muslim men, interestingly, comprising mostly Pakistanis, were charged with abusing, torturing and prostituting young girls between the ages of 11 and 15, over an extended period of time. Often these girls came from dysfunctional backgrounds or had been placed in care homes and were, therefore, particularly susceptible to exploitation. Nevertheless, these girls — who were grown women by the time the cases came to trial — came forward and gave evidence against their aggressors, playing a critical role in placing them behind bars.
The fact that they did so is attributable as much to the support they received from the legal system in this regard as it may be to their personal courage. England had enacted the Youth Justice and Criminal Evidence Act in 1999 that introduced a range of measures that could be used to gather evidence from persons vulnerable by virtue of age or physical or mental infirmity as well as those intimidated by physical or sexual abuse.
These measures included the possibility of giving evidence from behind a screen, through a live link or via an expert intermediary so that the witnesses would not have to directly face their aggressors.
Additionally, the 2011 report of a working group set up by the Advocacy Training Council of England & Wales, made a number of recommendations as to how advocates may be trained to deal with vulnerable witnesses which are since being implemented. Further, the justice ministry made appropriate amendments to the criminal procedure rules and issued practice directions, the Judicial College issued an Equal treatment benchbook for the guidance of judges, the lord judge addressed the issue in his annual law reform lecture and the Criminal Bar Association and the Advocacy Training Council created DVDs and other toolkits to support and guide advocates in their practice.
Given the commonalities in the Kasur, Oxford and Rotherham cases, it is interesting to consider whether the Pakistani legal system provides support to vulnerable witnesses comparable to that provided by the English legal system. At present, neither the Pakistani evidence law — Qanun-i-Shahadat Order 1984 — nor the Criminal Procedure Code recognises or addresses the issue of vulnerable witnesses. The only protection available to witnesses is under Section 21 of the Anti-Terrorism Act 1997, however, for the Kasur victims to avail of even this limited protection would require the judiciary to hold that the Kasur case qualifies as an act of terror within the meaning of Section 6 of the ATA.
There can be no argument that the Kasur victims are at least as vulnerable, if not more so, than any that may ever appear before an English court. They are not only prevented due to poverty, lack of education, social disparity, cultural stigmas and likely intimidation from testifying against their aggressors, they are also unaware of and unfamiliar with the intricacies of the court system. Even if the police complete their job satisfactorily and the culprits are brought to trial, but the witnesses are not supported and protected, the case will fail due to lack of evidence. Such failure, however, will not be a failure of the witnesses but that of the Pakistani bench and bar that failed to rise to the great human challenge staring it in its face.
The writer is a barrister and an advocate of the Supreme Court of Pakistan.
Published in Dawn, September 1st, 2015
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