August 13th, 2021
By Ahmed Saeed
The Punjab police told the Lahore High Court (LHC) on Wednesday, that they could not implement the Anti-Rape (Investigation and Trial) Ordinance 2020 mainly because they did not have enough manpower and funds.
The aforementioned ordinance (ITO) along with the Criminal Law (Amendment) Ordinance 2020 are collectively known as the Anti-Rape Ordinances 2020, and were promulgated by President Arif Alvi on December 15, 2020, to curb the increasing number of cases of sexual violence.
Both ordinances lapsed on August 11, 2021.
LHC judge Justice Ali Zia Bajwa deeply regretted the police’s inability and incapacity to implement the ordinance.
“This Court cannot turn a blind eye to such blatant violation of law and is compelled to take cognizance of the factors which resulted in violation of statutory mandate contained in ITO 2020,” the verdict reads.
The report submitted by the police to the court revealed that over 33,000 cases of sexual violence were registered in the first half of this year, from January 1, 2021 till 31 July, 2021. However, provisions contained in ITO 2020 were not complied with in a single case.
According to the new ordinance, the investigation of the offences mentioned in Schedule-I (kidnapping, child pornography, etc.) shall be carried out by a police officer not below the grade of BPS-17, who preferably shall be a female police officer.
While the investigation in respect of offences mentioned in Schedule-II (Rape, sexual abuse, etc.) shall be carried out by a special Joint Investigation Team (JIT) comprising senior police officials, including the District Police Officer (DPO).
“It is submitted that Section 9 of the Anti-Rape (investigation and trial) Ordinance, 2020 provides that investigation of schedule-I cases is to be conducted by an officer not below the rank of BS-17 (DSP/ASP). ASPs/DSPs are supervisory officers, and are not available in enough number to act as IOs in each case,” the police report said.
‘Billions of Rupees needed to implement ordinance’
The police report also suggested that there is a need to establish Anti-Rape Investigation Units (ARIUs), for which the required resources are simply not available.
“As per report police needs Rs. 4.9 billion initially, with Rs. 2.58 billion annually as recurring expenditures to implement this Ordinance, when inquired that what needful has been done so far, there was no satisfactory response. Crux of reply filed by CPO office is that due to lack of funds and resources this Ordinance could not be implemented,” the court noted in its judgment.
Non-implementation of ordinance is violation of Constitution
The court held that under Article 89 of the Constitution, implementation of the ordinance is the mandatory duty of state functionaries, and any departure therefrom shall be violative of Articles 4, 9 and 10-A of the Constitution.
“Account rendered by the investigation agency for not implementing ITO 2020 is not acceptable at all, however at the same time Government, before promulgation of a law, should also consider the state resources and capacity to implement the same, after taking all the stake holders on board because a good law should be viable, clear, publicized and most essentially implemented.”
The court also held that the new legislation should be extensively circulated at grassroots-level and concerned public functionaries should coordinate with each other for its effective implementation.
The court directed the Provincial Police Officer to take immediate steps to ensure the implementation of ITO 2020 without any further delay.
Rape Ordinances pending before Senate Committee
The government has tabled both the ordinances as bills in the Parliament.
While the National Assembly has already passed them, both bills are currently pending before the Senate Standing Committee on Law for consideration, which is expected to meet on August 16 for deliberations.
Senior lawyer and PTI senator Barrister Ali Zafar is heading the Standing Committee while other senior lawyers like Farooq Hameed Naek, Azam Nazeer Tarar, Raza Rabbani and Kamran Murtaza are members.
Zafar was also a member of the committee which had finalized the drafts of the two ordinances.
In an earlier interview with Voicepk.net in November 2020, Barrister Ali Zafar had assured and admitted that legislations and drafts should be done through the Parliament rather than the Cabinet for a meaningful debate, so that suggestions from every political party could be included in the final draft.
Kamran Murtaza told Voicepk.net that the bills will likely be cleared by the committee in its next meeting on August 16.
FEATURES OF THE NEW LAWS
One of the key facets of these bills is that they recognized rape as a gender-neutral offence by broadening the definition of rape to include men, women and sexual minorities under its ambit. Prior to this, men and boys were termed as victims of the ‘unnatural offence’ of ‘sodomy’.
Other salient features of these proposed laws include the establishment of special courts for speedy trials, the creation of anti-rape crisis cells for the prompt registration of FIRs, medical examinations and forensic analyses, among other requirements.
The bills also propose that a database of sex offenders will be prepared with the help of the National Database Registration Authority (NADRA).
However, despite these aspirations, Voicepk.net found that the police failed to insert the relevant section of rape (section 376 of PPC) in many cases of sexual violence, especially incidents involving male victims. Rather, the police are continuing to lodge such cases under Section 377 of the PPC (unnatural offences) as per prior practice.
WAF, WLA reject anti-rape legislation in current form
The Women’s Action Forum (WAF) and Women Lawyers’ Association (WLA) in a statement issued in May 2021 rejected the Anti-Rape Ordinances 2020, highlighted many legal defects. They also opposed the tabling of the two ordinances as bills in their present form.
The two bodies said that there is no need to reinvent the wheel. Instead they called for a detailed review of the 2016 Anti-Rape legislation by a parliamentary body to amend and strengthen it, as well as to incorporate some of the more inclusive, progressive definitions in the 2020 Ordinances