Implementation of Anti Rape (Investigation and Trial) Ordinance 2020

The endemic of sexual violence has taken a turn for the worse in Pakistan’s recent history. In the wake of atrocious crimes such as Zainab’s Murder case and Motorway Gang Rape Case, the Federal Government introduced the Criminal Law (Amendment) Ordinance 2020 and Anti-Rape (Investigation and Trial) Ordinance 2020 (“ITO 2020”) in an attempt to reform the criminal justice system with respect to sexual violence cases.[1] This piece is concerned with the enactment of ITO 2020 and its implementation or lack thereof, while relying on the seminal Lahore High Court judgement in Yasir v. the State[2] case as a guiding framework.

The Lahore High Court, in Yasir v. the State, commented on the lack of implementation of ITO 2020 and held that it is the duty of state functionaries to implement the Ordinance and any departure therefrom is a violation of Articles 4, 9, and 10-A of the Constitution of Pakistan, 1973.[3] The Court especially focused on section 9 of the ITO 2020, which provides for investigation of offences listed in Schedule-I and II of the Ordinance and mandates the appointment of special investigation officers and Joint Investigation Teams (“JITs”).[4] The judgment criticized the fact that despite section 9 being a mandatory provision of the ITO 2020,[5] no JITs were constituted under the Ordinance nor any gazetted officers appointed as investigation officers.[6]

The Court further commented that the criminal justice sector is ill-equipped to sensitively deal with cases of sexual assault and provide support to victims.[7] Therefore, investigations in sexual assault cases remain the focal point for criminal justice sector reformers, as a successful investigation serves as bedrock for a successful prosecution.[8]Moreover, the Court quoted Benjamin Hine and Anthony Murphy[9] that police officers are the gatekeepers of the criminal justice system and hence exert major influence over both the victim and the case.[10] As such, section 9 of the ITO 2020 designed a special procedure to ensure fair and impartial investigations in sexual assault cases.[11] The Court did not accept the account rendered by Central Police Office, Punjab which cited a lack of resources and capacity as the reason for the non-implementation of the Ordinance.[12] The judgment highlighted that in order to protect women, it is necessary to implement existing laws rather than promulgating new legislation, because non-implementation of laws is a major hindrance in realizing the purpose of law.[13] The judgment also condemned the emerging practice of “selective justice” where Government was seen to be providing full resources to cases which were highlighted in media, with investigation agencies also performing well to trace the culprits.[14]

The Court also acknowledged that it would be in larger public interest to promulgate viable laws, keeping in view the state resources and capacity as even a good law cannot serve its purpose if it cannot be implemented – leading to a sense of injustice among the masses.[15] The judgment cited a World Bank Report[16] which states that in many developing countries, the existence of formal laws does not lead to their intended efforts.[17] Towards the end of the judgment, the Court emphasized on the implementation of the ITO 2020 and highlighted the penal consequences of its non-compliance as provided under the Ordinance, while criticizing the law enforcement authorities for violating the law on a large scale[18] and not coordinating with the concerned quarters regarding the inadequacy of resources.[19]

The Lahore High Court’s judgment comments on a significant and long running issue with the exercise of criminal justice reform as undertaken by the State of Pakistan. The State has enacted a multitude of pro-women criminal legislation in the recent years, however, the lack of implementation of these laws leaves much to be desired. Where the societal mindset also becomes a hindrance to the effective implementation of pro-women legislation,[20] lack of foresight with respect to the State’s resources can also render laws ineffective. The example of Punjab Protection of Women against Violence Act, 2016 is relevant here. Despite five years passing since the enactment of the Act, only one Violence against Women Centre has been established thereunder. Moreover, it was reported in 2019 that the Centre’s staff was not paid for 9 months after a change in the provincial government as no budget allocations were made for the Centre.[21]

The ITO 2020 significantly revamped the investigation process of sexual violence cases and imposed further obligations on an already frail police department. These structural changes should not have been introduced through an Ordinance as the revamping was of such level and nature that it should have been discussed in the parliament. It should be noted here that the ITO 2020 was originally promulgated by President Arif Alvi on 15^th December 2020, and subsequently, the National Assembly extended the law for another 120 days, with effect from 13 April 2021.[22] This was an oversight as rather than assessing the performance of the ITO 2020, debating its merits within the Parliament, and getting input from the opposing members of the house, the National Assembly granted an extension to the Ordinance. It is quite concerning that the implementation of the Ordinance was not monitored for almost eight months since its original promulgation.

Cognizance of a State’s financial resources and capacity is an integral aspect of criminal law reform. Penal Reform International, in one of its handbooks on criminal law reform, states that it is essential to factor in the cost implications of a new legislation to determine whether its implementation requires an additional budget.[23] Moreover, further questions which need to be answered at this stage include whether the implementation of a particular legislation is an effective way of allocating resources across the system as a whole, and what would be the long-term and indirect costs and benefits of the change in law.[24] Due to the aforesaid financial implications involved in the implementation of any new law, it is recommended that the Ministry of Finance should be involved from an early stage of developing the legislation to ensure that adequate financial resources are allocated.[25] The example of South Africa is relevant here. The Finance Management Act No. 1 in South Africa requires estimation of the financial implications of any law that imposes any additional obligations on the Government.[26] Therefore, when the Child Justice Bill was introduced in the country in 1998, an estimation of the costs expected to be incurred in the implementation of the Bill was made.[27]

In the absence of the foretasted measures, that is, due debate within the parliament, and determining the cost of implementing the legislation, any penal provisions with respect to public servants for not carrying out investigations diligently should not have been added in the ITO 2020.[28] Therefore, the Lahore High Court seems correct in its criticism of the Police department for their lack of coordination with the relevant authorities qua the inadequate resources, however, the primary responsibility lies on the Government to enact laws which are viable and sustainable. It should be noted here that criminal law reform cannot be deemed as a “one-off” and isolated event.[29] Even if a law is passed after due legislative process, there needs to be regular monitoring of its on-ground impact, including any success, weaknesses and potential areas of improvement to ensure that the process of reform is ongoing and continually improving.[30] The Government was responsible for monitoring the implementation of ITO 2020 and providing support to the police department as necessary.

The Anti Rape (Investigation and Trial) Ordinance 2020 was promulgated after atrocious cases of sexual violence shocked the nation’s collective conscience. However, these were not unprecedented instances. Pakistan has been experiencing an increase in sexual assault cases since long. Against this backdrop, the Government should have initiated the criminal reform process long before the situation took a turn for the worse. An early initiative in this regard would have also lent better insights into the causes of increased sexual violence and the optimal solutions. The ITO 2020 was promulgated as a knee-jerk reaction to public protest and pressure without due legislative drafting process being followed. This has resulted in the enactment of non-viable provisions which hinder any possibilities of reform in the criminal justice system. Criminal law reform is a continual process – instances of “selective justice” as highlighted by the Lahore High Court may mollify the waves of unrest in the public, but the system can only be reformed through consistent and synergistic efforts, as without due implementation, promulgating new laws aimed at reform is only a futile exercise.

References

[1] Yasir v. the State and another Crl. Misc. No.43708-B/2021 [9].

[2] Ibid.

[3] Ibid [17].

Article 4 provides the right of individuals to be dealt with in accordance with law, etc.; Article 9 provides that no person shall be deprived of life or liberty save in accordance with law; Article 10-A provides the right to due process and fair trial.

[4] Section 9 of ITO 2020 states that investigations in respect of offences mentioned in Schedule-I shall be carried out by a police officer not below the grade of BPS-17 – who shall preferably be a female officer. Moreover, investigations listed in Schedule-II are to be carried out by a Joint Investigation Team comprising of the District Police Officer (DPO) as the head, one Superintendent of Police (Investigation), one Deputy Superintendent of Police, and one Station House Officer – with one member of the JIT preferably being a woman.

[5] Yasir (n 1) [13]-[14].

[6] Ibid [17].

[7] Ibid [6].

[8] Ibid [10].

[9] Benjamin Hine and Anthony Murphy, ‘The influence of ‘High’ vs. ‘Low’ rape myth acceptance on police officers’ judgments of victim and perpetrator responsibility, and rape authenticity’ (2019) 60 Journal of Criminal Justice 100–7 <https://doi.org/10.1016/j.jcrimjus.2018.08.001> accessed 15 August 2021.

[10] Yasir (n 1) [10]

[11] Ibid.

[12] Ibid [3]; [17] – The Central Police Office stated that officers not below the rank of BS-17 (DSPSs/ASPs) are supervisory in nature and not enough in number to acts as IOs in each case. Moreover, Rs. 4.9 billion initially, with Rs. 2.58 billion annually as recurring expenditure are required to implement the Ordinance.

[13] Ibid [11].

[14] Ibid [12].

[15] Ibid [15]; [17]

[16] World Bank, ‘World Development Report 2017: Governance and the Law’ (January 2017) 83 https://doi.org/10.1596/978-1-4648-0950-7 accessed 15 August 2021.

[17] Ibid [15].

[18] Ibid [3] – The Police Department did not follow section 9 of ITO 2020 in 34249 cases across seven months.

[19] Ibid [16]; [17].

[20] Sania Muneer, ‘Pro-women Laws in Pakistan: Challenges towards Implementation’ (2017) 18 (2) Pakistan Vision 90-92 http://pu.edu.pk/images/journal/studies/PDF-FILES/Article-5_v18_2_Dec17.pdf accessed 19 August 2021.

[21] Abdullah Niazi, ‘Violence Against Women Centre staff not paid in 9 months’ (Pakistan Today, 04 March 2019) https://archive.pakistantoday.com.pk/2019/03/04/violence-against-women-center-staff-not-paid-in-9-months-govt-says-issue-to-be-resolved-in-a-week/ accessed 12 August 2021.

[22] Ahmad Saeed, ‘Ordinances Meant To Be Passed As Act Of Parliament Instead Get Extension’ (voicepk.net, 16 April 2021) https://voicepk.net/2021/04/ordinances-meant-to-be-passed-as-act-of-parliament-instead-get-extension/ accessed 15 August 2021.

[23] Penal Reform International, ‘Making Law and Policy that Work: A Handbook for Law and Policy Makers on Reforming Criminal Justice and Penal Legislation, Policy and Practice’ (2010) 33 https://cdn.penalreform.org/wp-content/uploads/2013/05/making-law-2013-v3.pdf accessed 14 August 2021.

[24] Ibid 33.

[25] Ibid.

[26] Radhika Gore, ‘Influencing Budgets for Children’s Rights’ (UNICEF, June 2014).

[27] Ibid.

[28] Anti-Rape (Investigation and Trial) Ordinance 2020, section 22.

[29] Penal Reform International (n 23) 38.

[30] Ibid.