PM starts a premature debate
The debate that has begun about the punishment of the accused in the Sialkot Motorway gangrape shows a touching confidence in the police’s ability to do something it has failed to do so far, despite what seem to have been vigorous efforts: arrest the suspects. It seems that the efforts of the CCPO Lahore to blame the victim for negligence have failed to shake public confidence that the police will get the criminal.
The lack of a local link does not seem to have helped. The police has resorted to the methods that worked best when the police was more or less convinced, and all investigators now needed was evidence that would lead to a conviction. The police have arrested as many relatives of the accused as possible, and hoped that this would oblige the accused to surrender, even though they should realize that the accused is driven to the crime by irrational urges, not the normal motivations of the criminal, and is unlikely to care all that much about who has been arrested.
The government intends to legislate. Before it does, it needs to make up its mind on what is the purpose to legislation, revenge, deterrence, or pacifying an enraged public opinion. Whatever it does, it must resist acting under the influence of the rage engulfing society, which is entirely natural
The police spends a lot of time investigating the essential rural crimes of murders for revenge or honour (frequently both), and theft (very frequently of cattle). Torture of suspects is not applied in special cases, but is routine. Similarly, arresting a suspect’s relatives (preferably parents) and torturing them (sorry, interrogating them to find out where the suspect has gone), is also routine. It assumes that the suspect will learn of their arrest and torture, and will prefer to surrender himself. After all, even criminals have a code too. If suspects have a family, then they too will find themselves arrested. As a counter, there developed in rural areas a culture of non-cooperation with the police. Indeed, among some communities, it was not just a matter of pride, but a necessary precondition of marriage, that the intending bridegroom not commit a theft, but be caught, and then not to confess (bakya na’een) despite all the police could throw at him.
However, now that big-city cops have been known to off suspects in staged police encounters, torturing detained relatives has not become a guarantee of surrender. The cavalier attitude of the PTI and its leader towards conviction, and its apparent belief that accusation is guilt, makes it a distinct possibility that the main accused is wise not to surrender. The failure to arrest indicates that the accused has a criminal background. Whether or not he does, it is a safe assumption that he has a strong support network, which has allowed him to escape the attention of the police. Even if he had the ability to pay off the police, which he does not appear to, in such a high-profile case, the police would respectfully refuse him. Or more likely, use the knowledge of his whereabouts to make the arrest and to win credit.
Punishment should come only after conviction, but Prime Minister Imran Khan had two suggestions. First, that he be publicly hanged, and second that he be chemically castrated. H also mentioned physical castration as a possibility. While public hangings were a common event once, now they are not carried out even in states which still have the death penalty. Public executions were last held in the UK in 1868, in France in 1939, and the USA in 1936. The last countries having public executions are Iran, Saudi Arabia, North Korea and Somalia.
Chemical castration for sex offenders is not really common, but has been legislated frequently enough for it to be possible to see a pattern: it is not so much a punishment as a means of making an offender safe for release back into society. Admittedly, there is more pressure on Pakistani prisons than Western because of overcrowding, but there is not the same impulse towards giving prisoners probation and thus letting them out into society. In the West, sex offenders may find that chemical castration is one of the conditions of their release. It has not so far been used as a punishment. It is meant to ensure the person being released is not likely to relapse into criminal behavior.
Physical castration, which the PM also proposed, is practiced nowhere. It has never formed part of any penal code, though historical accounts do mention it being used against prisoners taken in battle in mediaeval times. As testicles are a pair of organs, the diyat for their loss is equal to that for the loss of life. Islamic law does not prescribe castration, physical or chemical, as punishment for any sort of crime.
Information Minister Shibli Faraz pointed out that Islam provided for public executions. The problem is, can one cherrypick? Is the hadd punishment to apply? In that case, the punishment would be for zina bil jabr. Zina (adultery) and zina bil jabr (rape) do not have different punishments; the latter is merely a defence for the victim against a charge of the former. The punishment depends on the marital status of the criminal: the married rapist is publicly stoned to death; the unmarried rapist is given 80 stripes. Under the Hudood Ordinance, the requirement for the punishment is four eyewitnesses. Not even one is claimed. There can be a confession, but the accused can resile at any point from the confession, even just before being stoned, in which case the hadd will not apply. If someone is convicted despite the shortage or absence of eyewitnesses, and the lack of a confession, he can still be punished for Zina bil jabr liable to tazir, which means a sentence of up to 10 years in jail, 30 stripes, or fine. If the rapist had been awarded the same because of a confession, resiling would mean a retrial, and perhaps the conviction with a lower sentence.
There has also been a brutal rape-cum-murder in Karachi, of 5-year-old Marwah, by two of her neighbours. Again, the police have made the initial arrests, but whether they will be able to gather evidence for conviction is another matter.
Whether punishments are supposed to be deterrents, or just plain revenge, depends on the police’s ability to gather evidence. Unless courts get the evidence they need, they cannot convict. And if they cannot convict, the discussion of punishments will be premature. No court will order a chemical castration just because it has been suggested by someone who built a cancer hospital. It is probably a coincidence that the chemical used is also used in treating certain cancers.
The government intends to legislate. Before it does, it needs to make up its mind on what is the purpose to legislation, revenge, deterrence, or pacifying an enraged public opinion. Whatever it does, it must resist acting under the influence of the rage engulfing society, which is entirely natural.