Saturday October 16, 2021

Special courts and sexual violence

September 11, 2021

In the backdrop of the Lahore motorway rape case, President of Pakistan Dr Arif Alvi exercised his presidential powers under Clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan and promulgated two ordinances on December 15, 2020: the Anti-Rape (Investigation and Trial) Ordinance 2020 and the Criminal Law (Amendment) Ordinance 2020.

The focus of this column will be the Anti-Rape Ordinance, (particularly the provisions relating to special courts and trial time) which was renewed and then later laid in the National Assembly (NA) on February 1, 2021 as the Anti-Rape (Investigation and Trail) Bill 2020 (the Anti-Rape Bill). It was passed by the NA on June 10, 2021. On September 1, 2021, the Senate Standing Committee on Law and Justice approved the Anti-Rape Bill with minor amendments. It will now be tabled in the Senate for approval. If approved, it will be passed as an act of parliament and will be enacted into law after receiving assent from the president.

During deliberations, establishment of ‘special courts’ (proposed Section 3 of the Anti-Rape Bill) for the trial of rape cases was authorised by the Senate Standing Committee. However, special courts, known as Gender-Based Violence (GBV) Courts, are already functioning across Pakistan. In fact, Pakistan was the first country in Asia to establish GBV Courts. GBV Courts were notified for all provinces by the National Judicial Policy Making Committee of the Supreme Court in November 2019. Trials of GBV cases, including rape, sodomy, child sexual abuse, etc, predominantly take place in the GBV Courts. Nevertheless, despite the establishment of the GBV Courts, the conviction rate in sexual violence offences remains as low as three percent.

Moreover, the Criminal Law (Amendment) (Offences Relating to Rape) Act of 2016, amended the Code of Criminal Procedure 1898 (Act V of 1898). It inserted a new section 344A, which mandated the courts to decide rape cases within three months. This can be contrasted with the proposed Section 16 of the Anti-Rape Bill, which proposes that upon taking cognizance of a case the court shall decide the case expeditiously and preferably within four months.

Despite the existence of GBV Courts and already existing stipulations in law mandating the courts to decide GBV cases within three months, in the past few months, Pakistan has witnessed a relentless rise in extreme gender-based violence cases. The brutal murder of Noor Mukaddam and Qurat Baloch, and the harrowing Usman Mirza and Minar-e-Pakistan cases have raised questions on the safety of women in Pakistan, particularly in light of the fact that numerous GBV offences remain unreported in the country.

The 'Global Gender Gap Report 2021' published by the World Economic Forum (WEF) highlighted that Pakistan’s gender gap widened by 0.7 percentage and it slipped two spots since 2020. The country ranked 153rd out of 156 countries on the index – making it one of the worst countries for gender parity. Unfortunately, the WEF also pointed out that women do not have equal access to justice while adding that 85 percent of women have suffered intimate partner violence.

The ‘Gap Analysis on Investigation and Prosecution of Rape and Sodomy Cases’ (2021), conducted by the Legal Aid Society (LAS) in Sindh, revealed from the date of incident to the date of final order, on average rape and sodomy cases take a total time of 16.8 months to reach a conclusion, with the average time spent in trial being 9.6 months.

The analysis further revealed that on average rape and sodomy cases take about 22 hearings till the conclusion of trial, with adjournments constituting the single most important reason for the high number of hearings, causing delays in the conclusion of the case. The adjournments take place mostly due to the absence of prosecution witnesses (PW), investigating officers (IO), medico-legal officers (MLO), defence counsels, prosecutors and judges, on the date of hearing of the cases. This is due to lack of an adequate case management system.

Additionally, special protection measures, such as in-camera trials, testimony through video-link or pre-recorded video testimony, use of screens/curtain in order to ensure that the victims/survivors and vulnerable witnesses do not have to face the accused persons etc are rarely utilized. Moreover, the survivor-centric directions laid down by the Supreme Court’s ruling in the Salman Akram Raja case (PLJ 2013 SC 107) on para 16 of the judgment are rarely implemented.

In GBV offences, the use of special protection measures is extremely important as it improves the experience of victims/ survivors in the criminal justice system through adoption of a survivor-centric approach to justice while limiting the insensitive treatment that is often extended towards survivors, witnesses and complainants in their pursuit of justice.

When the trial takes a long time to conclude, coupled with the absence of special protection measures, survivors and complainants lose faith in the courts and give up on their pursuit for justice. Due to this, in reality the GBV Courts begin to function like any other courts, and the special aim behind their establishment becomes inoperative.

To put law to paper is one thing, to take research-based concrete steps in order to reform the criminal justice system is another. This can be gauged from the fact that the Anti-Rape Ordinance was law for many months but failed to make any real difference. No steps were taken to ensure its implementation.

Although the Anti-Rape Bill, if enacted as law, will provide a legal cover to the existing GBV Courts, the appropriate operationalisation of the already existing special courts with adequate technical and human resource along with strictly enforced standard operating procedures is what is needed. All GBV Courts must be well-equipped to use special mechanisms including video link conferencing, witness waiting rooms, children’s play area, help desks, female support staff, etc.

Additionally, reforms need to be made in the court case management system to make it more efficient. Further, there needs to be consistent capacity building of all the actors in the criminal justice system including IOs, defence counsels, prosecutors, judges and the MLOs. This should include gender-sensitisation training, use of survivor- centric mechanisms, information on women and children’s human rights and latest amendments in law, etc. Judges need to be given specific training on the implementation of special protection mechanisms on their own accord, especially when involving children and vulnerable witnesses.

Assessment committees should be formed in every district in order to monitor the progress of GBV Courts. A mapping of the on-ground conditions of GBV Courts along with the capabilities of court staff need to be conducted so as to make progressive, equitable changes. Lastly, international norms and good practices need to be implemented in the national context in order to transform the judicial landscape in Pakistan.

The writer is a barrister.

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