Maliha Zia Lari is a human rights activist and lawyer. She is currently the associate director at the Legal Aid Society. Her contributions to various national and international publications explore critical issues such as violence against women, pro-women legislation, honour killings and labour laws.

In a phone interview with The News on Sunday, Lari talks about the importance of a survivor-centred approach to justice in cases of gender-based violence; why such an approach is crucial and the efforts made in Pakistan to integrate gender sensitisation into the country's justice system.

The News on Sunday: What does the survivor-centred approach to justice entail? How does it differ from a conventional approach to justice?

Maliha Zia Lari: Historically, the criminal justice system was never considerate of the survivor’s experience. The survivor, particularly when it came to gender-based violence, was always seen as evidence and treated like evidence. Their testimony and bodies were brought, tabulated and calculated only from an evidential point of view. So, for example, if it is a survivor of any kind of sexual violence, particularly rape, the medical examination must be conducted within 72 hours. It doesn’t matter what treatment they undergo or how they are made to feel. The most important thing has been to collect the evidence. Why within 72 hours? Because of the limitations of DNA technology, of course.

Also, a survivor's testimony or statement should be recorded before a magistrate as soon as possible, without consideration of what the survivor might be going through. Also, if you are a survivor of violence, you are expected to, at the earliest possible, go and register an FIR or a case with the police. There should be no hesitation; there should be no delay. A delay of any sort is considered suspicious [the survivor may be falsifying the accusation]. ‘Why would they not report it straightaway if such a violation has happened to them?’ There is also this myth that if one is a survivor of violence, one would’ve screamed or shouted and tried to run away; that there should be some signs of violence. A lot of presumption, and mainly because myths surrounding rape which have male expectations of how a survivor is supposed to react, are rampant across the criminal justice system.

There are two problems with this approach. One, it is a very evidence-based approach; it isn’t a human-based approach; and two, it focuses on myths instead of recognising the survivor's on-ground reality, experience and lived reality. So, for example, the ground reality is that survivors very often do not report the rape straightaway because of their trauma. Then, there may have been threats; there may have been fear. In Pakistani society, a survivor may suffer ‘honour’ killing or be afraid of bringing shame or dishonour to their family. Maybe one is worried that the family members won’t believe them. There are many layers that come into it. It is crucial to recognise that that [straightaway reporting of the incident] might not be applicable in cases of survivors of violence.

Furthermore, there has been an understanding that the first statement of the survivor is the truest. That has always been the belief. That is still largely the practice. It is based on the concept that you must catch them straightaway because that is when they are least likely to lie. That is the presumption. If you talk to a psychologist or people engaged in a survivor-centred approach in any jurisdiction, they will tell you that some details may become clear later on. If you talk about any incident in your life, particularly a traumatic one, you will remember some details later. But this wasn’t the inculcated approach. It was like this: get the statement, get the evidence, move on, do the case. There has been no major shift towards actually encapsulating a sensitised approach to support the survivor through the process, to make it less traumatic for them, and to capture the true lived realities and evidence that they could provide as a result of such a sensitive approach.

TNS: So, no significant legal reforms have been implemented to address this issue?

MZL: There have been legal reforms. This is just how it has been historically. What happened in Pakistan is that with increased conversation around this issue, things have begun to move in the right direction. There have been a lot of legal reforms in recent years, particularly about rape cases which is, I think, where the most amount of reform has happened. There were various reforms in 2016, 2020 and 2021. In 2016, Sughra Imam, the PPP senator, introduced a law that amended the rape laws, which then started adding increased processes and lived realities of the women. In 2020, under the leadership of Malika Bukhari, an ordinance was passed that became law in 2021. What they have tried to do between these two laws is to inculcate a survivor-centred approach in the justice system. It has done things such as removing options of character assassination or trying to attack a woman’s personality or previous sexual history. The two-finger test, which was highly derogatory, was first declared illegal and violative of the survivor’s dignity by the Lahore High Court in a judgment by Justice Ayesha Malik, then an order of the Supreme Court, and finally, it was made illegal through this law. It has also included processes that are supposed to provide further protection and reduce the survivor’s trauma. One of those, for example, is that one can use a special protection mechanism at the time of the trial. This means the survivor can use a screen or a video link and can choose not to go or face the perpetrator in court to reduce the kind of fear of violence that the survivors might meet when they come face to face with the accused. So, some processes have been included to protect or increase more gender-sensitive approaches for the survivors of GBV.

In 2019, the national judicial policy-making committee created GBV and child courts across Pakistan. These were later given legal cover by the 2021 Act. These gender-based violence courts are supposed to have a more sensitised approach towards these cases, specifically rape. These judges have undergone two trainings over the last couple of years on gender-sensitive approaches and women-friendly laws to try to understand that these laws should be implemented to decrease the secondary trauma for the victim. Similar trainings have been done with the police. There has been a lot of effort on the part of the medico-legal system to reduce the trauma during the medical stage. So, work is now being done to improve the justice system and bring it towards being survivor-centred. The main change is that whereas previously, the survivor was only seen as evidence in what they could say and what their body could show, now it is being recognised that we must protect the survivor’s experience and reduce secondary trauma to them.

TNS: What kind of additional reforms are needed?

MZL: To be honest, I don’t think legal reforms are needed at this point. I think procedural reforms and trainings are what we need now. The law will always be there, but how you implement the law will be the biggest issue. So, while we have a lot of sensitisation happening, what is not happening is the monitoring, evaluation and assurance that these systems are creating the required level of change. So, for example, in Sindh, where we have been working for a long time, special investigation units have been formed in the police. For example, previously, there were gender-based violence officers who later, under the law, became the SSOIU. They have been trained several times, and while it may not be as good as hoped, there has been improvement. But how do you know they’re doing their job? How do you know they are actually making a difference? Without monitoring on the ground level, without assessing the quality of the work, without having the performance linked to some kind of criteria for the development, etc, you are just leaving this on an individual basis to see if they choose to use this information.

TNS: How can these reforms be effectively implemented?

MLZ: It is very simple. Proper performance management systems need to be introduced into the work of the police. All of the police have this fantastic IT system where they report all the data relevant to the police. What they need to start doing is, through a set of indicators, develop a qualitative review of whether they performed or not. So, their work needs to be reviewed through case files, not just focusing on timeline management. You should also look at the people they worked with and who they represented and ask what their satisfaction level was. When gender-based violence courts in Sindh and Islamabad were established, the Legal Aid Society did a user satisfaction survey for those accessing the GBV courts. We did a primary detailed study and discovered a 14 per cent improvement in satisfaction levels from the GBV courts as opposed to regular criminal courts. You won’t understand how successful these courts have been until you talk to the end beneficiaries. So, qualitative reviews need to be inculcated on a regular basis – quarterly, bi-annually, annually – in the police, prosecution, medico-legal and judiciary. These reviews can give a good picture of whether or not any real changes have been made.

The justice system is a response to research and outcomes of research, particularly to the voices of the survivors when they are presented to them. However, these efforts are made by external parties on an ad hoc basis. It is essential and would be extremely positive if the justice system would initiate such efforts on its own in a consistent manner.

TNS: Does the current legal framework, which mainly focuses on addressing rape, present challenges in responding to the newer forms of gender-based violence, such as technology-facilitated GBV?

MLZ: I firmly believe that the Pakistan Penal Code (PPC) could be used to cover many cases, such as domestic violence. It could be used to cover cases such as sexual harassment or sexual abuse. When it comes to sexual violence, there have been a great number of laws that address sexual abuse, child pornography, etc. The law is flexible enough, and courts have tried accommodating more tech-related forms of violence. Further information and training on collecting evidence, presenting and prosecuting tech-related violence is essential for all actors in the legal system, including police, prosecutors and judiciary.

I think there is a problem when there are too many competing jurisdictions. It becomes challenging to investigate certain cases. For example, if you have a case involving anything electronic, it has to be handed to the FIA. Now, the police can no longer investigate it. As far as the FIA is concerned, they don’t have the required capacity in terms of human resources to investigate all kinds of cases. So, while there is a law that can be used to cater to different types of offences, the government has to, at some point, make the justice system come together to streamline it so that it becomes easier for the system to respond to such cases.

TNS: How can the justice system better respond to survivors and adapt to their varied expectations of justice?

MLZ: There is a feminist critique of the law which still stands true. It says that the law is a man’s understanding of what law is. And that continues till this day in the way everything is done. When you have a male majority who presumes what is best for the female, child or transgender community, you won’t be able to fully respond to it without understanding that it emanates from the system itself. It is important to capture and respond to the needs of the end-users, but there is often not enough information on this. The user satisfaction survey that LAS did in collaboration with the Sindh and Islamabad High Courts in 2020 and 2021 was the first time that I saw a concentrated user-evaluation system of a courtroom to actually tabulate the experiences of the survivors. Normally, they just look at data – for example, the timelines, the number of convictions, etc. This is absolutely necessary because these are the performance indicators, but where is the qualitative research done by the justice system to understand its own gaps?

When qualitative research is conducted and integrated into the learnings of the justice system, positive results can be seen. For example, in 2020-21, we also did a gap analysis on rape in Sindh to understand where the investigation and prosecutorial challenges lie in rape cases. One of the glaring things that resulted from that was the lack of understanding of the justice system of DNA technology. They did not know what it could and could not prove, including judges, police and prosecution. The medico-legal system had little understanding of what to record and what not to record in a manner that would be impactful at trial. The basic issue that we saw in our survey was the focus on DNA, without understanding the reality that DNA is not always present for a variety of different reasons, and can its presence prove if there was rape or not? Which it can’t. All it proves is that sexual intercourse happened, i.e. if it is conclusively found. Rape still has to be proved on the basis of other evidence.

Responding to these outcomes, concentrated trainings and discussions were held with police, prosecutors, medico-legal officers and judiciary in collaboration with the Sindh Police, Prosecutor’s Officer, Health Department and Judiciary with a large focus on medico-legal evidence led by Dr Summaiya Syed, Police Surgeon Karachi. After rigorous training on this and other topics, the conviction rates for rape cases went up by 14 per cent in 2022 in Sindh. By July 2023, the percentage of convictions had gone even higher. Examination of the judgments in conviction cases evidences a significant shift in how the justice system dealt with medical evidence and its correct usage, whether to use it to prove rape or recognise its limitations and focus on other relevant evidence supporting the conviction.

The justice system is a response to research and outcomes of research, particularly to the voices of the survivors when they are presented to them. However, these efforts are made by external parties on an ad hoc basis. It is essential and would be extremely positive if the justice system would initiate such efforts on its own in a consistent manner. They need to inculcate some kind of qualitative research internally in order to understand what the basic issues are. Doing so is important for them to be aware and take action.

TNS: Do you think our justice systems are equipped to conduct this kind of research and implement these measures effectively?

MLZ: I think they’re capable of hiring the right kind of people to do it if they are willing to do that. For one, the police have a massive IT system which records process-level data on a regular basis. For example, we worked with Hyderabad police, inquiring about their intake, conviction, acquittal, and penalty rates for rape cases over the last six months. After obtaining the data, we noticed that three districts had exceptionally high numbers, but acquittals were also remarkably high. This led to their internal queries, and they identified and responded to the reasons behind this.

However, analysis and performance reviews are not things the justice system does regularly. They typically focus on reporting acquittals and case numbers, but there's a need to go beyond these basic metrics to actual individual reviews to develop a comprehensive picture of how a particular institution is operating.

TNS: Can legal involvement be leveraged to prevent gender-based violence entirely? What measures can be implemented to deter potential perpetrators from committing such crimes?

MLZ: I believe there are two ways laws can help prevent GBV. Certainty of punishment and publication of statistics on a regular basis as a form of prevention.

With regard to punishment, I am not in favour of higher penalties. There has been a constant push in the last 20 years to increase the punishments. I think that increasing punishments for cases has been one of the downfalls for conviction rates. And I’ll give you a simple example. When you go onto the motorway, if you don’t put on the seat belt, you know you are going to get fined, right? There is a certainty of punishment. So, the certainty of punishment is way more hampering. You will be more hesitant to commit any kind of crime if you know that 99 per cent of the time, you will get punished. In the case of a higher sentence, for example, a death sentence, there needs to be a higher level of evidence. If the judge is not a hundred per cent sure, or there is some doubt in their head, or there is some evidence that doesn’t match up, will they send a man or a person to be killed? How can they, in good conscience, do that?

Nevertheless, there have been increasing convictions in rape cases and other forms of GBV, and these should be publicised. Increased public knowledge that there is a high chance of punishment and penalties for committing GBV has been recognised worldwide as a preventative measure.

One of the things is that there needs to be proper reporting of the conviction rates in the media. People must fear the possibility of getting caught. Inform the public about convictions and the likelihood of being caught. Stress that even accusations of rape have consequences. From a legal perspective, prevention depends on instilling shame by highlighting that it's not just about convictions but also about arrest, investigation, and other aspects.

Secondly, building up the public perception of the police requires a strong communication strategy to showcase what they’re doing right and what they’re doing wrong.

Increased transparency and reporting will contribute to building public trust in the police. Both the police and the justice system must have performance mechanisms in place to identify and rectify their shortcomings.

Certainty of punishment is way more hampering. You will be more hesitant to commit any kind of crime if you know that 99 per cent of the time, you will get punished. In the case of a higher sentence, for example, a death sentence, there needs to be a higher level of evidence.

TNS: What more can be done to develop a justice system that prioritises a survivor-centred approach in Pakistan?

MLZ: We are in the process of change. The concept of a survivor-centred approach is completely new in Pakistan. It is in the process of being implemented. The voices of the survivors must be a part of this journey. Getting the survivors' input on how procedures should be conducted is very important, whether it is done through the justice system or civil society. For example, the evaluation of the effectiveness of GBV courts for survivors, as well as understanding why they are beneficial, depends on evidence. This involves examining case files, considering primary evidence, and listening to the voices of survivors. It's essential to involve the voices of the vulnerable within the system, adopting a more gender-sensitive approach.

There need to be more females in the justice system. There are very There are not many women in trial courts, and most of them have been sidelined to family court cases. Very few women in the prosecution as well. It is essential to include women within the administrative staff too. Numbers are increasing, but an environment and an inclusive attitude need to be there to ensure they are protected. few women in the police, particularly in senior positions. Also, listen to those actively involved in the field, understand the real challenges, and engage the practitioners in policymaking.

Things are changing, but a lot more needs to be done.

Most importantly, people need to stop being ashamed of talking about it. Breaking that silence and talking about its discomfort changes the conversation and there is an understanding of each other’s perspective.

The interviewer is a staff member.