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OLD LAWS, NEW FACE!

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By Lubna Jerar Naqvi
Tue, 09, 21

As Pakistan witnesses an increase in violence against women, the Anti-Rape (Investigation and Trail) Bill, 2021 was recently approved to curb this issue. You! takes a look…

OLD LAWS, NEW FACE!

Based on numbers, less than one per cent of rape survivors get justice; which is one of the biggest deterrents for women to seek justice or even reporting the crime. In patriarchal societies, the percentage will be further diminished due to pressure from families and society to seek compromise.

Recently, there has been a sharp increase in Gender-based Violence (GBV) in Punjab. According to a report by Sustainable Social Development Organization (SSDO), launched district-wise analysis of state of violence against women and children in Punjab and Islamabad during Jan-June 2021, 6754 women were kidnapped; 1890 were raped and 3721 cases of violence against women registered in Punjab in the first half of 2021.

In order to curb the ongoing cases of GBV, the Senate Standing Committee on Law and Justice of Pakistan recently approved the Anti-Rape (Investigation and Trail) Bill, 2021. It also orders the formation of special courts to hear rape cases.

The new law is an addition to the previous laws already available to protect women in Pakistan and it is hoped that it works better than its predecessors. The only problem is that despite so many laws available, we don’t see a decrease in the number of GBV crimes against women. On the contrary, there is an increase in these cases. And while these cases are getting more attention in the media, the real problem is the less reportage, mostly owing to cultural setups, customs and traditions.

Syed Kausar Abbas
Syed Kausar Abbas

Executive Director SSDO Syed Kausar Abbas believes this is an encouraging step for the victims. “I strongly support this initiative of the government. This will help in reducing the rape cases and punish the offenders. There is a dire need to fulfill these commitments on an immediate basis,” says Kausar. “There are several important points included, such as: establishing special courts; appointing special prosecutors for special courts; creation of anti-rape crisis cells in public hospitals to ensure proper registration and medical examination; independent support advisers to provide support to victims; investigating by joint investigation teams headed by district police; maintaining data of offenders through NADRA; punishment for false accusations and constitution of a special committee on pro bono basis to ensure overall implementation of the law.”

Imaan Mazari-Hazir
Imaan Mazari-Hazir

While this seems like a promising step, some experts feel that this Bill could have done better. Lawyer and Human Rights Activis, Imaan Mazari-Hazir explains some important details. “First, there are two separate instruments – there is the Anti-Rape Investigation and Trial instrument and there’s the Criminal Law Amendment instrument. The Criminal Law Amendment instrument is actually a very positive development because it introduces a gender-neutral definition of rape, just to that extent,” tells Imaan. “Under the new definition, ‘now any man, woman, transgender – basically irrespective of gender’ can ‘be classified as a victim of rape’, whereas before it was a gender-based definition that has been changed. So that is a very positive development.”

“There is a lot of content overlap with already existing laws. For example, the Criminal Amendment Offences relating to Rape Act 2016 already provided a lot of important developments, such as fast track judicial mechanisms; DNA evidence; in-camera trials protecting the survivor’s privacy and dignity. Instead of working towards implementation on those, bringing in this new instrument which reintroduces or replicates those things doesn’t actually help in ensuring that those aspects in trial are safeguarded or catered to,” elaborates Imaan.

Further commenting on the matter, Mazari-Hazir talks about how this Bill can cause confusion. “Let’s take the role of the anti-rape crisis cells for example, now as per the instrument, these are supposed to liaise with departments and provide direct assistance for registration of complaints. And they are also supposed to be involved in medico-legal examinations. This is going to create a lot of confusion because already survivors are not sure which forums to approach.The processes are very layered and bureaucratic, so what you have actually done is confuse the functions of medico-legal officers, police and law enforcement agencies. When you say that the anti-rape crisis cell has involvement in medico-legal examinations, then this anti-rape crisis cell is intruding into the mandate and functions of the police and medico-legal officers. You are not clarifying processes by introduction of a new cell or committees. In fact, you haven’t actually provided anything to streamline these processes.”

OLD LAWS, NEW FACE!

Echoing these thoughts, Lawyer Sara Malkani critiqued the crisis cells as given in Section 4 of the draft, adding, “The Anti-Rape Crisis Cells’ (ARCC) role seems unclear, particularly with regards to their composition. Given that the Commissioner’s office, public hospitals and police fall in the domain of the provincial governments, it is questionable whether the Federal Government has the authority to establish such a cell. In addition, there is a risk that the ARCC may result in the formation of another layer of bureaucracy instead of making the system easier.”

Mazari-Hazir stresses that it’s important that these laws are clear because many of these cases are time-sensitive. “Complicating the instruments lumped together – the medico-legal with forensics and genetics – you have to distinguish between the same. If these laws are actually to be implemented, it must be clear. Will it be an anti-rape crisis centre, where a medico-legal examination will be conducted in all cases? There is time sensitivity when we are dealing with this sort of evidence, particularly in cases of DNA examinations. So, will rape survivors be running from an anti-rape crisis centre to a police station, to a hospital? That is how these difficulties are being compounded by this law.”

There is also the matter of special courts. “There are already gender-based violence (GBV) courts that have been notified. In Punjab, for instance, what sort of courts are these going to be; how are these going to operate and what has been done to improve their processes to make sure that they are more transparent? There’s no accessible information on even the existing GBV courts, so how are these special courts going to be any different. We are just creating parallel structures and that’s only going to make the confusion worse,” laments Mazari-Hazir.

Resonating with this, Malkani comments on Section 3: Establishment of Special Courts etc. in her critique that the “special courts to address gender-based violence (GBV) has already been notified in several districts. The Law and Justice Commission of Pakistan has assigned 193 courts to try GBV cases and trained 118 Judicial Officers and Prosecutors for GBV cases. Most of these are not properly functional.”

OLD LAWS, NEW FACE!

Her document further highlighted the problem of overlap between these special courts, GBV courts designated by the National Judicial Policy Making Committee and model courts and Anti-Terrorist courts, which must be clarified and explained. “Currently, there are too many overlaps in the jurisdiction for the system to operate smoothly and efficiently. The lack of clarification and overlap will result in confusion, delay in trials and nullify the purpose of law and order and special consideration for rape cases. Also, given the failure to make existing special courts effective, a question arises as to whether this is a feasible policy measure.”

Malkani also posed an imperative point, “In a notification issued in May 2021, while the Anti-Rape (Trial and Investigation) Ordinance was in effect, the Ministry of Law and Justice designated all Sessions Courts in Pakistan as Special Courts. If all Sessions Courts are to be Special Courts, will they be ‘special’ in name only?”

Pointing out some basic issues in the bill, Mazari-Hazir elucidates, “They’ve been given a four-month time period within which you conclude a trial, that’s actually in contradiction with existing provisions of the criminal procedure court. Section 344-A of the CrPC (Code of Criminal Procedure) for offences under Sections 354-A; 316; 377 of the Penal Code says that these have to be concluded within a period of three months. This law says four months. Which is it going to be? However, even the three-month timeline that had been given, was proving difficult to comply with. So, again, my basic point being here is that you have added a lot of new cells, committees, agencies and processes and bureaucratic hurdles but the actual implementation issues that existed have not been addressed at all.”

Section 8 of the law is about the victim and the witness protection, which again is a repetition of the previous laws. On this, Malkani comments, “This section overlaps again with the jurisdiction of the provinces. Provincial laws dealing with witness protection already exist: the Punjab and Sindh Witness Protection Acts. Therefore, this provision is duplicative. Existing laws have not been implemented and are ineffective. Instead of legislating a new legal provision for a failed policy measure, a serious assessment is needed as to why existing laws have not been implemented and how they may be made more effective.”

Imaan Mazari-Hazir agrees, “Previously existing laws also gave witness protection and protection within a court environment with respect to the dignity of the survivor. This law does not give any additional protection which is the point I am trying to make. The woman is just as vulnerable now as she was under any previous instruments. The root causes of the issue or the obstacles that women have to face in these trials, it all remains unaddressed. I don’t think that this new instrument serves to protect women any more than previous existing instruments did.”

The government should consider implementations such as increasing the legal literacy among the masses, especially women. To empower women and other victims, reforms have to be made in the foundations of the police and judicial systems. This can also be done by increasing the number of women in the judiciary and police. Apart from laws, the important thing is to make a survivor-centric approach, in which the survivors’ rights, dignity, privacy and needs come first. Moreover, there is a need to rethink our values which puts an end to victim-blaming attitudes.

“The only positive difference in the law is the gender-neutral definition of rape. Almost everything else has already been provided for in previous instruments, including the 2016 Act. In my view, this is nothing more than a populist measure, especially, because it brings in things like chemical castration which fail to recognise the root cause of the problem of rape. I think that this is just face-saving measure to give the government some sort of opportunity to say ‘look we are addressing this problem of sexual violence against women’ when really what it requires is an overhaul of existing procedures rather than playing to the gallery in the way that this government has done,” concludes Mazari-Hazir.