“A woman, whatever her sexual character or reputation may be, is entitled to equal protection of law. No one has the license to invade her person or violate her privacy on the ground of her alleged immoral character,” wrote Justice Mansoor Ali Shah of Pakistan’s Supreme Court in a brilliant 11-page judgment.
These words mark the victory of reason over tradition in a country where democratic rights and individual freedoms are already in decline. Pakistan is a country where historical insanities are protected and revered as traditions to ensure “order”. In such conservative cultural contexts, Mansoor Ali Shahs are a blessing.
Patriarchy has adversely affected our political and legal discourse. Politically, it offers little to no space to women. The space that is offered is not without a cost. A woman’s character can easily be questioned by those who disagree with her views in media, politics and the legal profession. Legally, the system is reluctant to recognize women’s agency and autonomy. Here, it is important to differentiate privileged women from politically influential families from ordinary women or those working in offices as reporters, researchers or students.
Steven Fish, a professor of political science at the University of California, Berkeley, is of the view that “patriarchy has led to authoritarianism in Muslim countries”. One can question Fish’s argument because of its academic weakness as Prof. Ahmet Kuru did in his latest Islam book. But overall strength and appeal of Fish’s argument are unquestionable.
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Cultures where privacy, free choice and freedom of expression are not protected, tend to be anti-democratic. The public ownership of democracy as an ideology or system of governance remains non-existent. Historically, Pakistan has not been an exception in this regard.
Justice Mansoor Ali Shah: Pakistan’s Ibn Rushd?
Justice Mansoor Ali Shah, call him Pakistan’s Ibn Rushd or modern-day J.S Mill, is determined to put his own house in order. In 2018, when he was Chief Justice of Lahore High Court, he ordered to remove words ‘blind’ ‘deaf’, ‘unable to hear, or ‘lame’ used for disabled persons in the Constitution and ordered them to be referred as ‘special persons’.
Similarly, in the instant case, Justice Shah made it clear that: “The courts should also discontinue the use of painfully intrusive and inappropriate expressions, like “habituated to sex”, “woman of easy virtue”, “woman of loose moral character”, and “non-virgin”, for the alleged rape victims even if they find that the charge of rape is not proved against the accused. Such expressions are unconstitutional and illegal.”
Justice Shah has been making efforts to upgrade the legal discourse in Pakistan. He helped established a resource centre at the LHC. The centre was staffed by qualified members of the district judiciary to conduct research for high court judges. He also attempted to make the Punjab Judicial Academy a true centre of training and excellence. At the Supreme Court, Justice Shah has been playing his part to make the court tech-savvy and friendly.
Justice Shah had been teaching and taught law for almost two decades at the Lahore University of Management Sciences (LUMS), Punjab Law College and Pakistan College of Law, Lahore. Interestingly, his judgments reflect his professorial understanding of concepts like freedom, dignity and democracy.
Individuals matter but institutions matter the most. Justice Mansoor Ali Shah, Justice Yahya Afridi and Justice Babar Sattar are Pakistan’s shining stars. These men have a vision and intend to question the status quo to fix the system. In other words, they want to repair our broken institutions. Will the ‘system’ give them space? Unfortunately, we have a long history of silencing reason and promoting unreason. There was a time this ‘system’ preferred Ayub Khan over Fatima Jinnah, Zia over Bhutto and Musharraf over Nawaz. As Will Durant, a prolific American philosopher and historian, notes that “the past is never dead”, so our fears are not unfounded.
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Ibn Rushd was appointed as a judge in Seville and then as the chief judge of Cordoba by Abu Yaqub. But after Abu Yaqub’s demise, his son, Yaqub al-Mansur, could not resist “the reactionary ulema and their public allies” and not only removed Rushd but also ordered to burn his books and put him in exile. It was the time when the rulers were not answerable before the public and no law constrained their authority. We are part of the 21st century. No Yaqub al-Mansur should be allowed to silence Mansoor Ali Shahs of our time.
The only word of caution for Justice Shah is what Babar Sattar (now a judge of Islamabad High Court) wrote almost five years ago: “the greater the potential for ushering change, the greater the disappointment if expectations are let down.”
Farah Adeed is Assistant Editor, Global Village Space (GVS). The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s Editorial Policy.