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18 major flaws identified in anti-rape, criminal law ordinances

Commenting on the federal government’s Anti-Rape (Investigation and Trial) Ordinance 2020 and the Criminal Law (Amendment) Ordinance 2020, the Women’s Action Forum (WAF) and the Women Lawyers’ Association (WLA) have expressed their opposition to legislation via ordinances, and highlighted how the two ordinances contain several overlaps with amendments already enacted in 2016 by the parliament, and other existing laws.

In a detailed position paper released on Wednesday, the leading women's rights bodies said the two ordinances severely undermined democracy, the legislatures (federal and provincial), and provincial autonomy/18th Constitutional Amendment.

In the position papers, WAF and WLA highlighted 18 major flaws within the ordinances. “They include the ambiguous language and unclear conceptual framing of the ordinances; the content overlap between the ordinances and already existing laws, and duplication of existing laws in the ordinances,” the paper said.

“Other flaws include the questionable establishment and unclear legal role of the special committee established under Section 15 of the Investigation and Trial Ordinance; and the functioning and role of the Anti-Rape Crisis Cell; conflation of medico-legal examinations with forensics and genetics; creation of special courts under Section 3 of the Investigation and Trial Ordinance; contradictory time periods for the conclusion of trial; duplication of the Code of Criminal Procedure and the Pakistan Penal Code in the provision pertaining to the right to appeal; redundancy of the witness protection provision under Section 8 of the Investigation and Trial Ordinance; separate and contradictory provisions for compensation; the rationale behind the formation of joint investigation teams (JITs) and their credibility,” the position papers said.

“Among other flaws are the ambiguous provisions for legal assistance and on the role and functioning of independent support advisers; lack of clarity on how contributions can be made to the Section 20 Fund; authorisation of trials of offences by the Prime Minister and other conflicts of authority; purpose of the register of sex offenders and its regulation; violation of constitutional safeguards for fundamental rights through the establishment of a public reporting mechanism in Section 25 of the Investigation and Trial Ordinance; and the penalty of chemical castration are included.” WAF and WLF said such dramatic decisions were no more than a public relations exercise to appease public and activism over the rising incidences of sexual

violence.

"Instead of focusing on empty populist measures, the government ought to be working towards building consensus across parties and provinces for policies that reform and strengthen the police, prosecution and subordinate judiciary, for institutional sensitisation and efficiency vis-à-vis sex crimes,” the two women rights bodies said. “Such measures do not require new laws, but simply administrative and policy decisions. The two ordinances compound already existing confusion and create additional hurdles for survivors/victim’s heirs.”

The women’s rights bodies also strongly opposed and rejected the insertion of the punishment of chemical castration on the ground that it perpetuates the widely prevalent misconception that rape is a crime of sexual gratification as opposed to exercising control over the intended target, irrespective of biological sex and age.

They also expressed their concerns over the extraordinary discretionary power vested in the president, prime minister, and the special committee formed by the Ministry of Law and Justice, which is not consistent with other laws, rules and policies that establish the respective mandates, powers, and roles of relevant institutions, including courts and law enforcement agencies.