In Pakistan, critics of the rule of law often argue that the laws do not help the cause of the common man and that the country suffers from ‘excessive’ legislation. This argument is fallacious on three grounds. One, most of the legislation is primary in nature, containing broad principles without operationalising the laws. This operationalisation takes place through delegated legislation in the form of rules, regulations and circular orders. Secondly, most of the law-making in Pakistan is influenced by external factors and international obligations and compulsions. A recent example is the legislation inspired by the Financial Action Task Force (FATF). Thirdly, the legislation is informed by the colonial legal framework with no indigenous effort made to rethink the architecture of the colonial legal system.
In the midst of all this, it is heartening to note that on 13 September 2023, the Anti-Rape (Sex Offenders Register) Rules, 2023 (the Rules) under section 24 of the Anti-Rape (Investigation and Trial) Act, 2021 (the Act) have been framed and issued by the Ministry of Law and Justice. This is the fourth set of rules framed under the Anti-Rape (Investigation and Trial) Act, 2021. The earlier three sets of rules are the Anti-Rape (Investigation) Rules, 2022, the Anti-Rape (Trial Procedure) Rules, 2022 and the Anti-Rape (Crisis Cell and Medico-Legal) Rules, 2022. It may be noted that these three sets of rules were framed in 2022, but notified in the Official Gazette in 2023. The newly issued Rules on the Sex Offenders Register (SOR) have, for the first time in Pakistan, provided a legal basis for the establishment of an SOR to serve as a database of convicts of sex offences that must be actively used by participants of the criminal justice system to detect and prevent gender-based violence (GBV) in Pakistan.
This article highlights the salient features of the Rules, which are:
- Design of the Legislation
The standard legislation on human rights (including women and children rights) in Pakistan usually restricts itself to the discipline of the federation that apportions work according to the constitutionally sanctioned legislative competence for the provinces. For example, the Juvenile Justice System Act, 2018 places the majority of obligations on the Provincial Government and seldom obliges ‘sub-provincial entities’ to implement the law. In contrast, the design of the Anti-Rape Act and the Rules is unique as this legal framework obliges many ‘sub-provincial entities’ to implement the law directly. This means that the rigid federative arrangement followed under other statutues is not strictly followed by the anti-rape system. The conventional ‘federation-province governments’ design has been substituted with a ‘federal-sub-provincial entities’ design in the new Rules. This new arrangement looks more efficient but may become tricky in the event that the federal and provincial governments are not politically synchronised.
- Right to Privacy and the Sex Offenders Register
Article 14 of the Constitution of Pakistan confers the right to be treated with dignity as well as the right to the privacy of the home to every citizen of Pakistan. These cherished rights must be balanced in any data collection and preservation systems. Accordingly, the newly proposed Personal Data Protection Bill 2023 by the Ministry of Information Technology and Telecommunication has envisioned an authority to be the custodian of citizens’ data to prevent its abuse. Similarly, the Rules have envisioned a system to ensure that the data is only put to legal use and a rule-based system is introduced. For example, rules on specific access (Rule 6) and data protection (Rule 7) have been provided to identify the person accessing the data and to ensure that said data is only used for pre-defined purposes.
- Scope of the Use of Sex Offenders Register
Rule 3(2) of the Rules states that the SOR should be ‘used for investigation and prosecution’ of cases. The usage as prescribed in the Rules is very limited. It may be noted that section 24 of the Act states a much wider usage of the SOR as it provides that the SOR may be used ‘in public interest and for public safety’. The scope must be broadened to include the ‘prevention’ side of policing as the police are equally obliged to prevent GBV under section 21 of the Act as they are obliged to investigate GBV crimes when they occur.
- Data Collection, Protection and Usage
Rule 5 of the Rules requires and authorises the National Database and Registration Authority (NADRA) to collect, enter, protect, access and authorise data usage in the electronic SOR. As the NADRA is not part of the criminal justice system, it may not be possible to do this independently. Accordingly, the Rule requires a ‘special prosecutor’ to fill in a prescribed form to be sent to the National Police Bureau (NPB) under the Ministry of Interior, which is then sent to the NADRA to establish the electronic SOR database. The present Director General of the NPB, Mr Ehsan Sadiq, is a seasoned police officer who is likely to give effect to the provisions of these Rules; however, the expectation from a ‘special prosecutor’ to send information of convictions may not be realistic as they are appointed on a temporary basis and have no support staff to perform this job.
- The Role of the Police
The Rules divide offenders into three categories: (i) Category A offenders with over seven years of punishment; (ii) Category B offenders with three to five years of punishment; and (iii) Category C offenders with less than three years of punishment. The sex offenders will remain on the SOR for five, four and two years respectively.
Rule 10 of the Rules requires a sex offender to ‘notify’ the officer in charge of a police station upon his ‘release’. It is unclear whether ‘release’ solely refers to the end of one’s sentence, or whether it also includes release on bail. Nevertheless, on being notified by the offender, the officer in charge of a police station shall submit the information on a prescribed form to the Head of District Police who shall subsequently send the data to the NADRA through the NPB. Upon failure of the offender to notify his release, the police may initiate action under section 107 of the Code of Criminal Procedure for the execution of a bond by the offender.
The Rules oblige the offender to notify his travel and other movements. The onus of notifying the ‘release’ on the offender should be reconsidered as it is not likely to be implemented in letter and spirit; only a public servant would follow the legal obligation. Expecting the same from an offender may not yield the required results.
- Implementation of Rules
An inbuilt feature of the Rules is that it empowers the Special Committee (constituted under section 15 of the Act) to ensure compliance of the Rules. This is an important safeguard and is likely to be used by civil society and international organisations to insist on and energise the implementation of the rules.
IT-based policing relies on data analytics, which the police leadership is increasingly willing to embrace for its day-to-day functions. The scheme of preventing and detecting GBV by efficiently using databases will likely have far-reaching effects if the initiative is implemented fully. It may also be noted that this initiative affirms the criminological theory and practice note of many police officers that recidivism is on the rise in Pakistan. Instead of taking a corrective course after their release from prison, offenders often commit the same offences again with a sense of impunity. This is perhaps one of the reasons that the Government of Sindh has enacted the Sindh Habitual Offenders Monitoring Act, 2022 (notified in 2023 in the Official Gazette) which aims to monitor and prevent repeat offenders. In these circumstances, Pakistan’s criminal justice system must properly deal with repeat offenders and rethink its penal regime.