The Ministry of Law and Justice has recently notified the Anti-Rape (Trial Procedure) Rules 2022 under the Anti-Rape (Investigation and Trial) Act 2021.
A trial starts once the police submit the investigation report (challan) to the prosecution under Section 173 of the Code of Criminal Procedure (CrPC). Under various provincial legislations (for example, in Sindh the Criminal Prosecution Service (constitution, Functions and Powers) Act 2009 is applicable), the challan is scrutinized and finalized by the special prosecutor, it is then submitted before a magistrate for their approval to take the case to trial. From there onwards, the trial starts in the sessions court designated as a special court under the Anti-Rape Act.
The important point to note is that the rules are applicable only when the trial stage starts. Therefore, the procedure prior to the trial – such as Section 164 CrPC, statements of the survivor and prosecution witnesses, recorded before the magistrate – is not covered under the rules.
No special protection mechanisms are provided to the victims/survivors at the pre-trial stage. This is a gap in the effectiveness of the Anti-Rape Act and Rules as the magistrate courts are not gender friendly and re-victimize the victims/survivors. This is a matter of concern as it has been held by the Supreme Court that a conviction is possible based on the strong solidarity statement of the victim/survivor (2022 SCMR 50 – Supreme Court of Pakistan), (PLD 2021 Supreme Court 550).
Rule 3 is titled ‘Scheduling of trial’. It mandates the issuance of a ‘trial scheduling certificate’ by the judge of the Special Court. This is a good step in the right direction. However, under Section 3(6), the responsibility of confirming availability of witnesses, evidence and expert reports to the special court could be an added burden on the prosecutor’s office. Therefore, appropriate human resources should be provided to the special prosecutors, to implement the rules effectively.
The most common reasons for adjournments in the cases are due to the absence of the complainant and prosecution witnesses. Even if the complainant does confirm their availability, they often move to their villages to avoid appearing in the courts as they often lose out on their daily wages when they have to attend court. Therefore, the rules should have placed a limit on unnecessarily calling the complainant to the hearings. Additionally, the bar associations also need to be consulted (and gender-sensitized) for devising an appropriate strategy to overcome the issue of unnecessary strikes that occasionally disrupt the trial process.
Moreover, many national and international CSOs organize capacity building trainings for special prosecutors and judges in good faith. However, this is problematic because there is no set annual schedule on when the capacity building trainings should take place. In a case of sexual violence, where I am appearing as a counsel for the complainant, first there were adjournments in the case because the special prosecutors were on a two-day training organized by a local CSO. In the next week, there were adjournments because the judge was on a week-long training organized by an international CSO. This causes delays in the trial process.
The adjournments due to trainings are doing more harm than good. The registrar of the high courts and the prosecutor general's office should initiate consultations and issue an annual schedule for the capacity building trainings. CSOs should not be allowed to engage justice actors for training as per their own schedule (instead their project timelines and targets should be in accordance with the annual schedule issued by the government for a do-no-harm approach). The current practice is counter-productive since no notice is given to the complainants, who give up their daily wages to come to court, only to find out that the presiding officer and prosecutor are absent. Hence, losing confidence in the Criminal Justice System (CJS).
Moving on, Rule 4(b), states that on the first day of the trial, the judge will hear and settle all technical and legal issues affecting maintainability, form and jurisdiction. This includes deciding the method for recording the evidence, through the ordinary procedure or via alternative ways, which may include use of a screen within the courtroom so that the victim is not able to see the defendant, assess and address the need for interpreters, any other special arrangement related to the different-ability of a victim, assess and address the need for any protection order for the victim or any vulnerable witness.
An important point to note is that I have dealt with cases where the accused is a juvenile. A case that memory does not allow me to forget is where a 15-year perpetrator committed rape of his three-year-old cousin. Which court will deal with cases where there is a juvenile involved? The special courts under the Juvenile Justice System Act (JJSA 2018) or the Anti-Rape Act? The rules under JJSA 2018 have not been notified as of yet. Perhaps, this can be decided by the judge (after considering the circumstances of the case) when following the process laid down under Rule 4.
Rule 5 lays down the ‘Procedure for trial’. It states that the “Court shall not grant more than two adjournments during the trial of a case, out of which one adjournment shall be upon payment of costs by the person seeking adjournment”.
Rule 6 mandates that the special court shall provide a conducive trial environment, “…which protects all parties, including the victim from secondary victimization and takes into consideration the victim's specificities such as age, gender, mental state, different abilities.”
Rule 7 titled ‘Examination of the victim or witness’ allows the judge of the special court to adopt measures for examination of victim or witness, which include: use of video-link, screens, examination to be conducted in camera. It is important to note that these survivor-centric measures were already laid down in Salman Akram Raja v Government of Punjab (PLJ 2013 SC 107). Since it is a judgement of the Supreme Court of Pakistan, it serves as a binding precedent across all courts of Pakistan.
While the procedure for recording of evidence through videoconferencing is laid down in Rule 9, the facilities recommended for videoconferencing are stipulated under Rule 10. These include desktop, laptop, mobile devices with internet connectivity and printer; camera; microphones and speakers; display unit; document visualizer; alternative electricity source such as UPS or generator.
It is understood that these electronics and equipment are required for videoconferencing. The important bit, which the rules have failed to tackle are the burning questions: such as who will provide the equipment to the Special Courts? The federal or the provincial government? Will they be provided from the Prime Minister’s Anti-Rape Fund under Section 20 of the Anti-Rape Act? Even the provincial law, Sindh Witness Protection 2013 allows for videoconferencing, the reason why it is not utilised is due to the lack of resources.
In a nutshell, while the Anti-Rape (Trial Procedure) Rules, 2022 has introduced numerous praiseworthy mechanisms, such as the issuance of a ‘trial scheduling certificate’, a broader reading of the rules seem to have compiled pre-existing special protection mechanisms. A multi-coordinated approach of all justice stakeholders, CSOs and the government is required to devise a strategy on implementing the law, as outlined above.
The writer is a barrister. She tweets @RidaT95 and can be reached at:
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