February 27th, 2021
This special webinar is part of the ongoing social media campaign ‘Bohat Ho Gaya… Let’s Fight Rape!’ in collaboration with the Canada Fund for Local Initiatives.
In the Part Two of Voicepk.net’s special webinar on rape legislation and obstacles to implementation, High Court lawyer and Asia Advocacy Adviser at the Center for Reproductive Rights, Sara Malkani, discussed whether the Anti-Rape Ordinance 2020 brought something new to the table and whether such legislation can be implemented with the current criminal justice system.
Malkani posited that regardless of numerous legislations, including the recently promulgated Anti-Rape Ordinance 2020, implementation is perhaps the most worrying obstacle to prevention and accountability mechanisms in cases of gender-based violence in Pakistan.
In 2016, amendments to the Criminal Procedure Code (CrPC) and the Pakistan Penal Code (PPC) were introduced to strengthen procedure and prosecution in rape cases respectively. For the latter, amendments included increasing the severity of punishments (such as death penalties to those convicted of child sexual abuse and gang rape), and stipulating minimum sentences.
“However, these amendments did not yield the results that were expected of them,” she stated. This problem is also exacerbated by the lack of any official data or statistics on incidents of child sexual abuse and rape in the country, as well as underreporting either because the rape survivor’s family is dissuaded from reporting the case to avoid becoming social pariahs or because of the police and media’s disinterest in sexual crimes against women and children.
“For all those cases that are reported, the conviction rate is dismally low,” she added. “As was apparent in the Khuzdar case where the victim’s mother accepted a settlement, one major reason for such few convictions is that families tend to agree to out-of-court settlements because the witnesses often resile and because of a lack of faith in the police and the courts.”
On the question of the role of jirgas in mediating settlements between the accuse and the rape survivor or their family, as was the case in the Khuzdar, she provided that both the Supreme Court of Pakistan and the Sindh High Court had in the past ruled that jirgas have no legal precedence. However, she contended that rape survivors and their families of rape survivors do not agree to out-of-court settlements because of the influence of jirgas but because of their lack of faith in law enforcement and the justice system. The aggrieved are convinced that the legal process is unfairly and exhaustingly long, and neither does it guarantee that justice awaits them at the end of that road.
“I myself have worked on such cases where, especially when minors are involved, the rape survivors’ parents are ready and willing to approach the police. But from the registration of the FIR, to the investigation, to prosecution and then trial… the entire procedure becomes so long drawn out and difficult for them,” she said. “Eventually, whether there is a Jirga or not, the witnesses back out for any given reason and the aggrieved themselves prefer out-of-court settlements.”
She urged that the debate should not stray to the presence of jirgas and tribal systems, but should remain focused on strengthening and improving procedures in rape cases not just through legislation but also through actual implementation. Legislature itself posed a problem in addressing gender-based violence and child sexual abuse.
“There are several pre-existing clauses that have been included in the Anti-Rape (Investigation and Trial) Ordinance, 2020,” she said. Special courts have already been notified on paper, we already have a number of witness protection laws, the CrPC already has a provision that rape trials should be concluded within three months which the Ordinance has stipulated shall be four months for all offences. Whenever we legislate, at the very least we should try to understand why the things we want to reinforce and reaffirm are failing in the first place.”
Malkani questions the need to reestablish existing institutions that are failing to function and reintroduce existing laws that are not being implemented. However, with regards to the Criminal Law Amendment Ordinance, 2020, there were some significant new provisions. These included terming rape a gender-neutral offence, clarifying that rape is not limited to the act of penetration, and giving a more open definition to consent such as the absence of any resistance does not indicate consent.
“But if we want to address rape with criminal legislation, we have to ascertain whether or not the foundation of our criminal justice is not broken. Will we even be able to properly address rape and gender-based violence with a fractured criminal justice system? The problems that we face with our police, our investigative procedures, with our courts, they are not just limited to rape and gender-based violence cases.”
Justice is extremely rare with the current state of Pakistan’s justice system. Perhaps, she suggested, there is a need to rethink how we approach rape and gender-based violence – without strengthening the very core of Pakistan’s institutions, one cannot expect that the same institutions will be able to properly address rape and gender-based violence in the country.