Another Supreme Court

Even as our own dearly beloved Supreme Court repeatedly shows contempt of the people by handing over tribal lands to corporations and urban spaces to mall developers, the judges across the border seem to be on a radically different track. As is well known by now, the initial dismissal of Chief Justice Iftikhar Choudhary by General Musharraf – an action that launched a million mutinies – was at least partly to punish him for his order preventing the sale of Pakistan Steel Mills to a private group.

As the democratic upsurge in Pakistan carries on unabated, here is a lesser known story, sent to me about a month ago by Nighat Said Khan (better known as Bunny) Women’s Action Forum activist. It is an eye-witness account of the hearing in June 2007, in the Supreme Court of Pakistan, on the appeal by the ‘she-couple’, as a story in Dawn dubbed them, seeking dismissal of a High Court decision sentencing them to three years’ imprisonment for perjury. Not only is the order by the Supreme Court exemplary for its commitment to individual rights, Bunny’s account highlights the extraordinary sensitivity and awareness shown by both the lawyer representing the couple, Babar Awan, and the judges hearing the case.

If this is Pakistan’s judiciary, no wonder the general is a little lost in his labyrinth…

Over to Nighat Said Khan.

Shahzina Tariq and Shamail Raj’s appeal to the Supreme Court to dismiss the High Court decision sentencing them to jail for three years for perjury.

Hearing on the 28th of June 2007.

The appeal was heard by a two member bench with Justice Bhagwandas and Justice Raza Khan. Shahzina and Shamail were represented by Dr. Baber Awan, Advocate Supreme Court and member of the Senate, Government of Pakistan.

Background
Shamail Raj, a female to male transsexual married a woman Shahzina Tariq. Shahzina’s family filed several charges against Shamail Raj for kidnapping and fraud. The two of them then approached a lower court in Faisalabad to prevent such harassment. The lower court decided in their favour since they produced their marriage certificate and because both of them were adults. However, the family continued to harass them to a point where they thought that their lives might be at stake.

Shahzina and Shamail then came to Lahore and filed a writ petition to the High Court to put a stop to such harassment. On the day of the hearing the father of Shahzina appeared before the Court and gave testimony that Shamail was actually a woman. Shahzina and Shamail did not come to this hearing because, as their counsel submitted, ‘they had been threatened the previous night and thought they may be murdered if they appeared in court.’ The Judge ordered a physical examination to be done by a five member medical team at the government Services Hospital.

The medical team reported that while Shamail “is a well built muscular person with moustache and beard and has a hoarse voice’, physically he is a woman. This report changed the nature of the writ petition, turning the complainants into defendants. Frightened the two went into hiding. When they didn’t appear in court, the judge ordered the police to arrest them on the grounds that Shamail had stated in Court that he ‘was a boy’, but that the medical examination had ‘proved that he was a girl’ and that therefore he has sworn a wrong affidavit. The Court sentenced them for perjury, they were arrested, and sent to separate jails in two cities, Shahzina to Faislabad and Shamail to Lahore.

The hearing
The case would have been sensational in most circumstances but in the Islamic Republic of Pakistan was given enormous media and public attention. The appeal was to highlight the legal discrepancies in the High Court judgement as well as to raise the issue of multiple sexualities and gender identities. This is a brief recollection of the actual hearing.

It was a delightful moment and without precedent.

Before Baber Awan even started his submission the bench observed: ‘This bench takes cognizance of the fact that this issue has been sensationalized and that the privacy of these people has been invaded’. This was just the beginning…

Justice Raza Khan then went on to say that he didn’t know why this issue was in court since transsexuals have been amply recorded in history. He proceeded to speak of Hermes in Greek mythology and the historical reality of hermaphrodites. Other cultures in history also testify to this, he said. ‘People are caught in such trying situations…instead of punishing them we should have pity…’ He then used the Urdu word ‘hamdardi’ (sympathy).

This set the tone…

The bench then wondered why the High Court judge had been ‘so angry’ as to send two people sentenced on similar charges to different jails and in different cities.

‘This’ said Baber Awan ‘Is what we come to you to ask’ (a smile on the faces of the Justices and on ours).

Baber Awan then proceeded to state his legal case by noting that the High Court judge had acted as the complainant, the prosecutor and the judge.

Further amusement…. ‘You mean he was all three?’ asked the bench.

Also that Shamail’s medical examination had been without his consent and that they had not made their statements under oath in the High Court and therefore had not committed perjury. The bench was attentive asking him to repeat these points. He did…they duly noted. Baber Awan went through several other legal points including that while marriage in Islam is a contractual agreement, the law did not specify who could make such a contract. This was treading on shaky ground – while the law does not specify that the marriage contract must be between a woman and a man, we certainly didn’t want to encourage legislation that would wipe out this ambiguity.. Baber Awan did not press on with this point.

Having concluded his arguments, Awan then dramatically and slowly started closing his law books and references one by one. He had a pile in front of him, which he now proceeded to set aside one at a time, on the table at his side.

‘My Lords’ he declared, ‘I put my books away…I now speak as a human being and as a father…these are circumstances that any of us could find ourselves in. Our children could be in this situation as many are. It is not rare for parents to bring up their children in a gender other than into which they are born. How many children identify with the other sex and want to be like them? How many people find them selves caught in situations in which they have no control? Changing gender is not unusual in Pakistan…we have whole communities who are marginalized and many individuals who suffer because of this. During the course of my preparation I have found several women who have become men…a fellow student of my son in medical school, a politician’s daughter in Kashmir who now practices as a male lawyer…many people go to clinics for surgical assistance. There are several clinics that support this including one run by a retired army Brigadier who was previously in the medical corps…’

Justice Khan: ‘Such operations are not the issue… there is nothing illegal about having reconstructive surgery.’

Awan: ‘But the High Court has raised this issue and even filed a case against the doctor who performed the operation on Shamail.’

Justice Khan: ‘Do you mean that the doctors have cases against them? On what charge?’

Awan: ‘We are here to ask this court that question. If reconstructive surgery is against the law then all plastic surgery would be illegal including hair transplants which are now the rage among men including politicians. (Recently Nawaz Sharif, former Prime Minister and Shahbaz Sharif, former Chief Minister have had hair transplants). The case however actually raises the larger issue of multiple sexualities and multiple gender identities.’

Baber Awan then spent the next ten minutes drawing on debates among medical practitioners, discussing international agreements, understandings and definitions of gender including feminist articulations of gender identities, and illustrating with countries which have laws that reflect this understanding.

Not unfamiliar to those accustomed to discussions among women’s rights and human rights activists – but in the Supreme Court? With an attentive bench? Not only remarkable but probably without precedent in most countries.

The Court listened and then proceeded with its short order.

‘The judgment of the High Court stands suspended, the appeal is accepted and will be heard at a later date. Bail is set for Rs. 50,000 each’.

The court adjourned….the hearing lasted for about 45 minutes – in itself a precedent since most appeals brought before the Supreme Court are over in a few minutes.

2 thoughts on “Another Supreme Court”

  1. Thanks for posting this Nivi. Not only this particular narrative remarkable but its also been amazing to see the activist role being played by Pakistani lawyers since March. Jinee

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