Punishing Rapists With Castration Will Take Pakistan Back To The Dark Ages
By I.A. Rehman
03 Dec 2020
THE
government seems to have decided to take a great leap backward with its
proposed punishment for persons found guilty of rape, for which the penalty
even at present is death.
It has
decided to add to the Pakistan Penal Code section 376 B which says:
“Exceptional first offenders or repeat offenders — Whoever is convicted of an
offence under sections 375, 375 A and (or?) 376 may be subjected to chemical
castration through a court order, irrespective of the applicable punishment;
(i) In exceptional circumstances in respect of the first reported offence of
section 375, or (ii) in case of a repeat convict of an offence under section
375”. ‘Castration’ is explained as “a process whereby a person is rendered
incapable of performing sexual intercourse, for any period of his life, as may
be determined by the court, through administration of drugs which shall be
conducted through a notified medical board. However, this process will be
carried out subject to the accused’s concurrence”.
The
language of the sections being added to the statute is so loose and clumsy that
it will drive lawyers and judges to despair. For instance, the expression
‘exceptional’ is frequently employed. Who will decide what is an exceptional
situation? And the accused’s concurrence has no weight as nobody can opt out of
his rights.
A more
serious matter is the fact that the proposal is in flagrant violation of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, a core human rights instrument duly ratified by Pakistan. This
convention is considered inviolable to such an extent that even the death
penalty is to be carried out in a manner that it is not deemed to be cruel or
degrading. Doubts have already been expressed about the punishment of
castration getting the approval of Islamic scholars. Besides, castration is not
included in the schedule of punishments that can be administered to convicts.
It would be
a sad day for Pakistan if punishments ruled out two centuries years ago were to
be reintroduced.
Above all,
the very idea of castration offends against the present-day human sensibility
and concepts of human dignity. It must not be forgotten that even persons
convicted of the worst possible crimes, including murder, cannot be deprived of
their inherent dignity of person. The modern mind will find the very idea of
castration as punishment for any crime inhuman, vulgar and repulsive, and the
product of a mindset in an advanced stage of morbidity.
The idea of
punishing rapists with castration obviously springs from the theory of deterrent
punishment which has caused much havoc in various societies. Will castration be
a more effective deterrent than capital punishment? There is no evidence to
support the possibility of an answer in the affirmative.
All
theories of punishment are based on the premise that it will cure a wrongdoer
of his aberration without damage to his inherent goodness or his capacity to
reform his conduct. For that reason, punishments that damage a person’s mind or
body to an extent that he is drained of any capacity to liberate himself of
criminal tendencies or influences must be rejected as being counterproductive.
The search for effective remedies for crime, especially its new manifestations,
demands much more than routine executive orders. While rape is common in Pakistan,
studies on the factors contributing to its incidence, and on the various forms
it assumes in different parts of the country, are too few to help in the
planning of adequate and effective responses.
No
discussion on remedies to rape can be fruitful without taking into
consideration a number of society’s characteristics, including the treatment of
woman as a chattel, the tradition of segregation between the sexes, the
practice of buying brides which bedevils young men with meagre resources, and
the relegation of a poor housewife to the level of an unpaid labourer.
Everybody
knows that rape cannot be eliminated by laws alone even if they are
administered in an ideal fashion, and certainty not by raising the scale of
punishments. The theories of crime and punishment have been changing all over
the world as the frontiers of knowledge are extended. Muslim societies
generally lag behind because of their obsession with the past. While Iqbal is
honoured by the posting of guards at his mausoleum his call for de-freezing
Islamic jurisprudence and freeing it of an imperialist stamp remains unheeded.
Not only that, no attempt has been made to undo the Zia ul Haq decision about
perpetuating the stranglehold of the traditional jurisprudence.
The
government would be well-advised to approach law-making with greater care than
has been the case in the recent past. In any law even the full stops and commas
matter as they affect the lives and interests of the people. When the authors
of the Penal Code started their work in the fourth decade of the 19th century
they rejected some of the punishments that were in vogue during the feudal
period on the ground of their being derogatory to human dignity. It would be a
sad day for Pakistan if punishments ruled out nearly 200 years ago were to be
reintroduced in the 21st century.
The world
has learnt through trial and error the dangers of hasty legislation. No great
harm will be done if the government encouraged the people to discuss and debate
the pros and cons of legislative proposals. The government may ask its
underutilised law minister to find out how many states, Muslim as well as
others, have discovered the benefits of castration.
The
government must not forget that whenever the benefits of a proposed law are not
plainly evident its life is limited to a couple of years. Let it fix the life
of its experimental laws at two years at the most, so that their pros and cons
are widely understood.
The fact
that nobody should ignore is that the damage caused by castration could be
irreversible.
The people
of Pakistan face the daunting task of catching up with the world in their
search for a dispensation that will respect all communities’ right to live by
their progressive ideals. Let their journey be facilitated as much as possible.
In any case they do not deserve to be pushed back into the Dark Ages.
Tailpiece: Look at the order of detention passed against
Ammar Ali Jan and the arrest of caterers in Multan and you will realise that
the so-called New Pakistan is no better than a degenerated version of the old
Pakistan.
Original Headline: Back to the Dark Ages?
Source: The Dawn, Pakistan
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