Despite the dawn of the 21st century and the recognition and institutionalisation of fundamental rights for women in most of the democratic countries, including Pakistan, the women population in our country is discriminated against in each and every field and walk. Among other rights one area where women in Pakistan have really suffered is the denial of the right to fair trial to most of women, if they knock at the doors of judicial system for attainment of their other basic rights.
The right to fair trial is intrinsic to ensuring the rule of law. Protection of human rights including but not limited to the right to life and liberty, hinges on procedural fairness and proper administration of justice. Without an effective recourse to due process, there is no protection for those whose rights are violated particularly women.
Observably, in Pakistan women have been facing a lot of social, economic, political, institutional and above all cultural challenges to fulfil their right to fair trial. Socially, culturally if fundamental rights of women are violated like right to freedom of expression, movement, association, education, and inheritance and so on then she cannot realise these rights because she does not have adequate access to fair trial. As access to justice, including fair trial, in cumbersome legal structures of Pakistan, requires having handsome financial resources. However, mostly women in Pakistan do not have the financial resources to have access to the institutions of justice. In particular it has been observed that women could not get their inheritance of property rights because they do not have the financial resources to contest the cases in courts against their resourceful and physically powerful male relatives. Usually inheritance cases in Pakistani courts take a lot of time to be settled where women with weak economic position and somewhat emotional psychological make-up are at a disadvantage to get justice.
Importantly women accused of crimes are especially at-risk of violations of their right to fair trial and due process of law. A Human Rights Watch report states, more than 70% of women in police custody report physical or sexual abuse at the hands of officials. In many cases it has also been discovered that women are detained for several days in police lock-ups without registering a First Investigation Report (FIR) or produced before the judicial magistrate within the 24-hour period stipulated by law. Police officials deliberately often file inaccurate FIRs or delay the registration of FIRs altogether to have sexual favours and to extort bribes from generally powerless females. Here one could recall the late military dictator General Ziaul Haq, who in order to appease the reactionary clerics by assuaging their anti-female attitude promulgated Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in which the burden of proof was put on a female who would file a suit for sexual harassment or rape thus practically forfeiting women’s rights to fair trial. Research into women’s cases reveals that majority of women prisoners were also found to lack access to legal counsel. Pre-trial detention was prolonged for women because they found it more difficult to secure bail, surety and release.
The weak social and physical status of women has been a great impediment in the way of fair trial for women. If women set about knocking at the doors of courts to have justice and realise their rights firstly they cannot do so because majority of women in Pakistan are illiterate and even those who have got education are not meaningfully empowered to attain justice for themselves. The physical environment and social structure in Pakistan is such that to overcome their constraints one needs to be financially, physically, mentally extremely strong to realise one’s rights, including rights to access to justice. Unfortunately, in such an environment and with such weak social and physical status women cannot have their way in reaching the corridors of justice and through it realise all their other rights whether of freedom of choice, inheritance and association.
