The rights to equal access to justice and protection under the law are fundamental elements of the rule of law. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly in December 1979 and Pakistan ratified the Convention in 1996. Among all the international human rights treaties, CEDAW is the most significant in terms of eradicating discrimination against women. The Convention includes articles pertaining to civil, political, social, cultural, legal as well as reproductive rights of women.
The essence of Pakistan’s international legal obligations within the Criminal Justice System as laid down by CEDAW is then two-fold; establishing laws for the protection of women, and amending or repealing existing laws which continue to discriminate against women.
Domestic Violence (Prevention and Protection) Act 2012
Each province with the exception of Khyber Pakhtunkhwa have enacted domestic violence laws. The Domestic Violence (Prevention and Protection) Act 2012 (the domestic violence law enacted in Sindh and Balochistan have similar content with slight variations) defines domestic violence broadly and includes all intentional acts of gender-based or other physical or psychological abuse committed by the accused against women, children or other vulnerable persons, with whom the accused person is or has been in a domestic relationship. The Act allows the Court to pass interim orders, protection orders, and residence orders for the protection of victims of domestic violence.
Punjab has also enacted the Punjab Protection of Women Against Violence Act 2016. It establishes Protective Centres and shelter homes for victims of domestic violence and includes provisions about GPS tracking of the offenders to ensure protection of women. The Punjab Women Protection Authority Act 2017 further facilitates the implementation of institutional measures stipulated under the Punjab Protection of Women Against Violence Act 2016 including, establishment of district women protection committees, violence against women centers and women protection officers.
Criminal Law (Amendment) (Offences in the name or pretext of Honour) Act 2016
The Act amends certain sections of the PPC and Cr.P.C to deter and prevent offences committed in the name of honour. It amends Sec. 229 of the PPC 1860 to add a new clause relating to the concept of ‘Fasad-fil-arz’ which is used to decide the severity of punishment awarded by observing factors such as the offender’s past convictions, nature of the offence, whether the offender is a danger to the community and whether the offender has committed any offences in the name of honour – which means that commission of honour crimes will now lead to harsher punishment for the offender.
A significant effect of the Act is the amendment to Sec. 311 of the PPC 1860 which now states that murder committed in the name of honour is punishable with death or imprisonment for life and even where the accused is pardoned by the Wali (guardian) or other family members of the victim the Court will still punish the accused with imprisonment for life.
Other acts of violence which have been specifically criminalised to protect women under the PPC are as follows:
PAKISTAN PENAL CODE 1860
|Sec. 375 & 376|
|Sec. 496-C||Falsely accusing someone of fornication (punishable with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees).|
The Parliament enacted the Criminal Law (Amendment) (Offence of Rape) Act 2016. The Act introduced the following amendments to the Pakistan Penal Code 1860 and Code of Criminal Procedure 1989.
Pakistan Penal Code 1860
Sec. 55 of the Pakistan Penal Code 1860 was amended to ensure that life sentence given to an offender accused of assault, use of force or rape of women cannot be reduced to anything less severe. Sec. 166(2) of the PPC was also amended to prescribe a sentence of up to three years for a public official who fails to investigate rape cases diligently. Sec. 186 of the PPC supplements this and states that any individual accused of obstructing an official from carrying out an investigation will also face a sentence of a period of three months to a year along with a fine of up to fifty-thousand rupees.
Sec. 376(3) and Sec. 376(4) of the PPC have also been amended to the effect that more serious categories of rape will now be subjected to the death penalty or life imprisonment. Whereas, Sec. 376-A was added to protect the identity of rape victims. It states that any person publishing the name or any other material which has the effect of revealing the identity of the victim will be sentenced to imprisonment for up to three years and will be liable under a fine.
Code of Criminal Procedure 1898
The Cr.P.C has been amended to provide safeguard to the victims of sexual violence. Sec. 53-A establishes a requirement for medical examination by a registered medical practitioner of the accused whereas, Sec. 164-A provides for the examination of the victim. Additionally, Sec. 164-B provides for the collection of DNA samples from the victim with their consent or the consent of a natural or legal guardian. The law provides that such samples are to be sent to a forensic laboratory at the earliest to ensure proper examination and preservation and these can be matched with DNA samples of the accused to determine criminal liability.
In addition to this, the Cr.P.C 1898 provides that information of the rape and the statement of the victim must be recorded in the presence of a female officer or in the presence of a person nominated by the victim. It also provides that information related to the crime may be recorded at the residence of the complainant, or at any other place of the complainant’s choice if they are in a state of distress.
Under Sec. 161-A of the Cr.P.C provision for free legal aid for victims of sexual violence has also been introduced, and Sec. 352 allows for trials to be conducted in-camera and for the provision of screens to protect the identity and dignity of the victim or the witnesses to the crime. Sec. 344-A is of significance as well as it requires proceedings to be fast-tracked with the time for concluding the trial set at three months, whereas time for appeal has been limited to six months under Sec. 417 of the Cr.P.C. Additionally, provincial governments have been prohibited under Sec. 402 Cr.P.C from intervening to change or reduce sentences of rape.
Discriminatory Practices Against Women
The Prevention of Anti-Women Practices Act 2011 was passed to criminalise oppressive and discriminatory customs practiced in the country. The Act amended the Pakistan Penal Code 1860 to criminalise the following:
▪ Depriving women from inheriting their property by deceitful or illegal means
▪ Forced marriages,
▪ Marriage with the Holy Quran
▪ Giving a female in marriage or otherwise in badla-e-sulh, wanni or swara
Apart from this, many other laws have been promulgated to protect the integrity of women including the Khyber Pakhtunkhwa Elimination of Custom of Ghag Act 2013 which abolished the tradition of Ghag in different cultures. The Prevention of Trafficking in Persons Act 2018 also imposes harsher penalties against who traffic women or children. Furthermore, Sec. 290, 302, 310, 311 and 338E of the Pakistan Penal Code 1860 and Sec. 345 of the Code of Criminal Procedure 1898 were also amended to make the punishments in relation to honour killings harsher. The Acid Control and Acid Crime Prevention Act 2011 (Criminal Law Second Amendment Act 2011) also made amendments to the PPC and the Cr.P.C to punish perpetrators of acid crimes by clearly including acid crimes in the definition of hurt.
Women and the Criminal Justice System
The following sections apply for the protection of women during arrest and detention:
Police Rules 1934