Justice Ayesha Malik: Outlawing the Two-Finger Test and Her Indelible Mark on Pakistan’s Justice System
Lina Idrees writes about the recent appointment of Justice Ayesha Malik as Pakistan’s first female Supreme Court judge and reflects on her seminal judgement banning the ‘two-finger test’ in Pakistan.
TW: sexual violence, rape
It’s been a year since the Supreme Court of Pakistan abolished the ‘two-finger’ test – a decision which was long overdue for victims of sexual violence. This landmark ruling was passed by no one other than Justice Ayesha Malik, a judge of the Lahore High Court who has recently been approved by Pakistan’s top judicial commission as a judge of the Supreme Court of Pakistan – a defining moment for Pakistan’s judicial system. Justice Ayesha Malik made international headlines last year after banning the ‘two-finger’ test for rape survivors and has continued to make history after being sworn in as the first female Supreme Court judge.
The colonial-era test which Justice Ayesha Malik ruled as unconstitutional involves inserting two fingers into the vagina of the victim to test its laxity and for the presence of a hymen to determine whether or not the victim is “habituated to sexual intercourse”. In cases of rape, consent isn’t something that can be ‘objectively quantified’, and Zainab Z. Malik argues that the test is used to ‘decode’ consent. If the victim isn’t a virgin, courts are reluctant to consider a victims claim of rape because the victim character isn’t in line with what is deemed ‘chaste’ or ‘pure’.
In the rare instance in which a victim of sexual assault chooses to seek legal recourse in Pakistan, they often find a shadow cast upon their credibility after the application of the test which upholds harmful socio-cultural stereotypes about women and is prejudiced towards rape victims.
In the rare instance in which a victim of sexual assault chooses to seek legal recourse in Pakistan, they often find a shadow cast upon their credibility after the application of the test which upholds harmful socio-cultural stereotypes about women and is prejudiced towards rape victims. One example of this is the case of Mukhtaran Mai, a victim of gang-rape and an individual who was denied access to justice as a result of the application of the test in arguably its most discriminatory manner.
In 2002, Mukhtaran Mai was gang-raped by four men as a result of a tribal dispute in the rural village of Meerwala. Mukhtaran Mai went through four stages of legal proceedings, spanning nine years and ending with the Supreme Court of Pakistan’s disappointing decision in 2011. Throughout the judgement, Mukhtaran Mai was described as a ‘divorcee’ – a crucial fact pertaining to her case. Why? Because the two-finger test ‘proved’ she wasn’t a virgin and drew a distinction in the delay of filing the First Information Report (FIR):
“… in a case of an unmarried virgin victim of a young age, whose future may get stigmatized, if such a disclosure is made, if some time is taken by the family to ponder over the matter that situation cannot be held at par with a grownup lady, who is a divorcee for the last many years…”
Justices Saquib Nisar and Shakirullah Jan, Para. 23
Had Mukhtaran Mai been an unmarried virgin, would the 8 day delay in the FIR at the police station (through no fault of her own) played a role in determining her credibility? Probably not. The courts perception of Mukhtaran Mai was influenced by the two-finger test which wasn’t admissible evidence to prove the rape took place but evidence that proved she wasn’t a virgin. It makes you wonder how many rape survivors who have struggled to prove their case in court may have benefited from the abolishment of the test earlier. According to Aitzaz Ahsan, the lead lawyer on Mukhtaran Mai’s case, ‘it could have been a huge factor tilting the decision in favour of Ms. Mai as woman’s virginity would not have been up for questioning’.
In an article he wrote for The News International, Aitzaz Ahsan praised Justice Ayesha Malik’s comments about the weight given to a woman’s virginity in ascertaining the crime of rape. In the seminal judgement of Sadaf Aziz v The Federation she stated:
“The conclusion drawn from these (virginity or two-finger) tests about a woman’s sexual history and character is a direct attack on her dignity and leads to adverse effects on the social and cultural standing of a victim. It is also discriminatory as the test is carried out primarily to ascertain whether or not she is sexually active, for which there appears to be no justification as being sexually active is irrelevant to the incident of rape or sexual abuse”
Justice Ayesha Malik, Para. 28
The distinction between a virgin and non-virgin, a married woman and a divorcee, and the distinction “…that men are independent and women are men’s dependents” aren’t simply unfortunate socio-cultural stereotypes that women have to deal with on a daily basis but are reinforced in Pakistan’s judicial system which uphold such stereotypes through legal norms and undermine women’s fundamental rights. While the year old judgement is incredibly important and a step towards a fairer and more just approach to cases of sexual violence, it was simply a step. In a country where rape cases are underreported and victims of sexual violence face such a stigma, the removal of such a hurdle rooted in misogyny with no scientific basis is the bare minimum development for our justice system.
The recent appointment of Justice Ayesha Malik to the Supreme Court has made this year-old step feel like one of many to come because it is decisions of this seminal nature by women like herself which slowly contribute towards what I think will amount to a revolutionary change across Pakistan’s legal and socio-cultural landscape. Pakistan needs more women in positions of power to trigger this change and I look forward to more of Justice Ayesha Malik’s momentous contributions to our legal system.