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Op-ed:Will the new anti-rape ordinance meet the same fate as previous laws

The salience of this law lies in the fact that it amended both the substantive as well as the adjective laws of the country on the subject of sex-related offences.

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Two new laws titled the Criminal Law (Amendment) Ordinance, 2020 and the Anti-Rape (Investigation and Trial) Ordinance, 2020 were enacted on 18th December 2020. Though introduced through temporary legislation i.e., Ordinance instead of permanent legislation i.e., Act, the content of these laws warrants examination in the context of policing and justice sector reforms, especially with reference to offences that affect women and children in the country.

An off the cuff remark about these two laws is that they have been enacted without debate; as counterfactual, many laws of this country had a similar fate. It, therefore, makes sense to study these laws as a citizen and as a student of the justice system in Pakistan. Here, the two laws will be elucidated and briefly analyzed in a tentative manner.

Leveraging on this constitutional concurrent role of the federal government, the federal government has taken lead in enacting these two laws for the whole country.

CRIMINAL LAW (AMENDMENT) ORDINANCE, 2020:

The salience of this law lies in the fact that it amended both the substantive as well as the adjective laws of the country on the subject of sex-related offences. On the substantive law side, it amended the Pakistan Penal Code, 1860 (primary criminal law of the country) by expanding the very definition of the offence of rape.

From a layperson’s perspective, by expanding the ‘definition’ of an offence, the law tries to widen the scope of an offence and caters to as many categories as possible. The present law of rape was introduced through the Protection of Women (Criminal Law Amendment) Act, 2006 that omitted certain provisions of Zina Ordinance, 1979 and introduced sections 375 and 376 to the Pakistan Penal Code, 1860; section 375 had defined ‘rape’ and section 376 had provided its punishment. The new Ordinance has conceptually increased the eventualities that can now fit into the definition of ‘rape’ including the fact that consent by a girl below sixteen years of age has been made immaterial by making sex with a girl less than sixteen years a ‘statutory rape’.

Read more: Alvi approves new Anti-Rape Ordinance for speedy trial and strict punishments

In any case, in terms of policing, it means more police cases, more investigations and more female investigators and more forensic and medical evidence, and more careful victims’ handling. From viewpoint of Gender-Based Violence (GBV), despite justice system failings, it is a welcome development as more women can be assured protection, at least theoretically, through this legislation.

The law has also introduced the new offence of gang rape that was hitherto not an independent offence and the law of abetment was used with rape law to book multiple offenders. By adding section 375-A to the Pakistan Penal Code, 1860, the offence of gang rape has been added to the primary criminal law of the country. This addition has addressed a legal gap in Pakistan’s legal framework where the criminal liability of multiple offenders in gang rape has been brought at par and all will be punished under the doctrine of common intention irrespective of the role played by each of them in the heinous act.

An off the cuff remark about these two laws is that they have been enacted without debate; as counterfactual, many laws of this country had a similar fate.

The new offence of gang rape will help police and prosecution alike in investigating and prosecuting cases as evidence regarding particular role during gang rape would not have to be adduced separately against each co-accused; by proving the presence of a co-accused with his associates, the whole case would be proved, or at least theoretically will stand proved. In addition, the new Ordinance, by amending the Second Schedule of Code of Criminal Procedure, 1898, has declared rape and gang rape as non-compoundable offences.

The new law has also added new section 376-B that provides punishment for ‘exceptional first-time offender or repeat offenders’ of rape and gang rape cases to be subjected to the punishment of ‘chemical castration’; recidivism in sex offenders is a serious problem, but punishing it with such punishment is arguably a matter of some policy choice and legal test on the touchstone of article 14 of the Constitution of Pakistan that envisages dignity of human beings even if they are offenders of the highest order.

Read more: A timeline of the motorway gang-rape

Finally, the law has, through drafting, added two new dimensions to criminal law in Pakistan: first, it has removed the ambiguity about imprisonment for life by linking it to the ‘remainder of life’ of an accused and clarifying that the offender has to be imprisoned till his natural death in jail; secondly, the law has empowered the Prime Minister to make rules, this power was, in earlier legislations, vested with Federal Government. The transfer of rule-making power to the Prime Minister is perhaps the outcome of the Mustafa Impex Case that was decided by the Supreme Court of Pakistan wherein it had interpreted ‘Federal Government’ as ‘Federal Cabinet’.

In any case, the delegation of rule-making power under the statute to the Prime Minister is likely to make the passage of rules efficient as the whole route of taking draft statutory rules will be leapfrogged.

ANTI-RAPE (INVESTIGATION AND TRIAL) ORDINANCE, 2020

The Anti-Rape (Investigation and Trial) Ordinance is quintessentially an administrative and procedural law. It provides an administrative structure of the Anti-Rape Crisis Cell (APCC) that can be established by the Prime Minister at any place in the country. The composition of APCC has all the stakeholders and is to be headed by Commissioner or Deputy Commissioner (DC) implying that it can be constituted at both Divisional as well as District levels. The APCC shall comprise Commissioner/DC, District Police Officer (DPO), a Medical Superintendent, and an Independent Support Advisor (ISA). One member of the APCC must be a female, according to the law.

The concept of ISA is a new concept in Pakistan’s legal framework and ISA has to be a lawyer, or a doctor, or a psychologist, or a social worker who has to accompany the victim to courts to prevent her from any duress or victimization. The ISA has to be notified by the Ministry of Human Rights in Islamabad. The law also empowers the government to establish special courts and appoint prosecutors for such cases.

The implementation of these two laws largely depends upon police, which plays a central role in service delivery on the ground.

Victim and witness protection in sex offences are to be protected by the government. For this, rules are to be notified by the Prime Minister, but until the rules are so notified the protection can be extended through the Witness Protection, Security and Benefit Act, 2017.

For the investigation of these cases, female police officers of the rank of ASP/DSP and above must be entrusted with the investigations. The law also provides a legal provision to constitute Joint Investigation Teams (JITs). To fill in the gaps related to depositions through electronic means, legal provisions for an in-camera recording of testimonies of victims and witnesses have been provided.

Read more: ‘No justice for victim’: India rape case sparks outrage on ‘chilling’ caste system

To discourage the practice of mudslinging the reputation of victims, the evidence against ‘immoral character’ has been made inadmissible. The law has empowered police officers to take preventive action to avoid the occurrence of any offence covered under the law. The modalities, in practice, of preventive action, are not clear as most of the time the preventive legal actions get initiated by police officers but do not result as an effective deterrent due to procedural ambiguities.

Another point that relates to the police is that bungled and defective investigations have been criminalized through this law. The law of defective investigation is part of criminal laws since 2016 but has not delivered as it is not in sync with practitioner modalities and has, therefore, not been able to bring delinquent police officers to the task. The law also specifically prohibits disclosure of the identity of a victim of a sex offence and goes as far as criminalizing the disclosure.

From a layperson’s perspective, by expanding the ‘definition’ of an offence, the law tries to widen the scope of an offence and caters to as many categories as possible.

The most progressive part of the law is that it has obligated National Database Registration Authority (NADRA) to maintain a national electronic register of sex offenders, which will be, subject to rules, available to courts and law enforcement agencies.

The implementation is in the hands of the police

Criminal law, Criminal Procedure, and Evidence are concurrent subjects according to articles 142 and 143 that were re-written in the Eighteenth Constitutional Amendment to the Constitution of Pakistan. Leveraging on this constitutional concurrent role of the federal government, the federal government has taken lead in enacting these two laws for the whole country.

The implementation of these two laws largely depends upon police, which plays a central role in service delivery on the ground. The police, however, are suffering from an anachronism, gender imbalance to supply an adequate number of female police investigators and need dire organizational and functional reforms.

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In addition, the prosecution, forensics, and medico-legal services are being governed by the provincial governments. In order to effectively see the implementation, the federal government will have to play a more collaborative and coordinating role vis-à-vis provinces; short of that, these laws will remain under-utilized.

Kamran Adil is a senior police officer, currently serving as Additional Inspector General Police. He studied law at Oxford University and writes and lectures on international law. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

 

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