November 25th, 2020 

By Rehan Piracha

LAHORE

The federal cabinet committee on disposal of legislative cases has approved the draft ordinances on rape legislation, said Fawad Chaudhary, Federal Minister for Science and Technology, adding that the ordinances will be promulgated in a week’s time.

But, women rights activists question the logic of rushing through the legislation by ordinances that would lapse in four months if not backed by the parliament.

In a written comment to Voicepk.net Fawad Chaudhary said the committee on Wednesday has approved the draft legislation consisting of the Anti-Rape (Inves­tigation and Trial) Ordinance 2020 and Pakistan Penal Code (Amendment) Ordinance 2020.

He said the draft ordinances will now be submitted to the prime minister and the federal cabinet for final approval, adding that after the approval the ordinances would be sent to the President for promulgation. The process would take one week more, he said.

In a tweet on November 24, the federal minister said that under the new legislation the definition of rape included rape with transgender persons, calling it a huge leap forward.  In the tweet, he said the medical report law has also been amended to bring it in line with International practices.

In a tweet to mark the International Day for Elimination of Violence Against Women, Shireen Mazari, Federal Minister for Human Rights, said the new anti- rape law would be one more step forward. “We are ensuring existing laws protecting women’s rights & protecting against violence are implemented effectively,” she tweeted. The federal minister also announced that the new legislation on rape would be enforced throughout the country.

A day earlier, Mazari had tweeted that the federal cabinet had approved in principle the anti-rape and child abuse legislation. The legislation included an expansion of the definition of rape; harsher punishments for sex offenders; and the prohibition of the use of the two-finger test, in order to institute greater protection for women and children in Pakistan, she added. She said the two ordinances would be vetted by the Cabinet Committee on the Disposal of Legislative Cases.

What’s in the new legislation?

The new legislation on rape and child abuse is based on two ordinances- of the Anti-Rape (Investigation and Trial) Ordinance 2020 and Pakistan Penal Code (Amendment) Ordinance 2020.

Definition of rape

The new definition of rape through an amendment in Section 375 of the Pakistan Penal Code would make victim gender-neutral. Previously, only women can be subjected to rape under the law. The scope of definition of rape has been broaden to include other acts in addition to intercourse that constitute rape. According to definition defines victims as ‘person means a female of any age or a male under eighteen years of age’.

However, women rights activists raised concern that the age for statutory rape has been reduced from 16 to 13 under the new legislation.  “Disturbingly, it seems like the age for statutory rape has been reduced from 16 to 13 years. What is the rationale behind this change?,” Reema Omer asked the government in her tweet.

Nida Aly, Executive Director of Asma Jahangir Legal Aid Cell, sought an explanation on the proposed reduction in age from Shireen Mazari in reply to her tweet about the draft legislation, adding that the age should have instead been raised to 18 years.

“Most importantly reducing the age of statutory rape of minors to 13 (which is currently 16 years for girls) is unacceptable,” Aly said. “And the age for minimum marriage age for girls should also be amended to 18 years under the child marriage restraint act,” she added. However, Fawad Chaudhary said that the statutory age has not reduced to 13 years in the final draft.

‘Transgender persons not covered under new definition of rape’

Contrary to the claims by government, Aly said the scope of the rape definition still not included transgender persons who fall within the most vulnerable groups in the society.

Similarly, Women in Law, an advocacy group for equality of opportunity and connectivity of female lawyers, said the perpetrator under the new definition of rape has been confined to ‘man’, calling for its revision to include all genders. “We also think that the perpetrator being seen only as a “man” when penetration by other means has been acknowledged should be revised. Furthermore, castration does not make sense if penetration is by means other than penis and reduces a crime of power to that of lust, the advocacy group said in its tweet.

Aly said passing the legislation through an ordinance did not make sense as it would stand repealed after 120 days unless presented as a bill. “The goodwill of the government cannot be doubted but the real issue is the dismally low convictions due to the shortcomings in the criminal justice system especially starting with the investigative procedures used by the police,” she pointed out.

She said the limited definition of rape was not the reason for the high number of acquittals of the accused, adding that the low conviction rate is because of the investigation methods and long drawn out trials which take more than two years. In her opinion, it was equally important to focus on procedures to facilitate the survivors by minimising their trauma in the courts.

Chemical castration

The legislation includes first-ever punishment of chemical castration for repeat sexual offenders by insertion of new section 376B under the PPC.

According to the draft ordinance, “Whoever has been previously convicted of an offence punishable under sections 375, 376 and is subsequently convicted of an offence punishable under any of the said sections shall, in addition to the punishments under the applicable respective provisions shall be subjected to chemical castration.”

According to the explanation listed in the draft, Chemical Castration would mean ‘a process whereby a person is rendered incapable of performing sexual intercourse for any period of his life, as may be determined by the court, through administration of drugs which shall be conducted through a notified medical board’.

Prohibition of two-finger test.

The legislation would ban the two-finger virginity testing in sexual abuse offences. The amendment would make any evidence inadmissible that shows the victim of is generally of immoral character.

Video recording of victims and witnesses

The legislation proposes video recording of testimonies and evidence of victims, accused and witnesses in the court. The testimonies would also be transcribed for record.

Enhancement of punishment till the remainder of life

The legislation also proposes amendment in Section 376 to allow the rapist to be sentenced to imprisonment till the remainder of natural life. Previously, the sexual offenders could be sentenced to death and imprisonment of 25 years or less.

Special court for speedy trial

The draft legislation also proposes establishment of special court for gang rape, rape and child sexual abuse crimes. However, women rights activists and lawyers have opposed establishment of speedy trial courts saying that existing law already placed a limit of three months for court decisions in rape cases. Abid Saqi, Vice Chairman of Pakistan Bar Council, had called the suggestion of special courts a mere waste of resources. There is no need for a parallel mechanism to handle the Lahore motorway gangrape and other cases of heinous crimes against women and children, he told Voicepk.net. Similarly, Azam Nazir Tarar, Chairman of the executive committee of the PBC, had said public hangings or the constitution of special courts will not do much to deter offenders from committing heinous crimes against women and children in Pakistan.

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