In 1932, the case of Lindbergh changed much in the criminal justice system of the United States. Charles Augustus Lindbergh Jr., a 20-month-old son of aviator Charles Lindbergh, was kidnapped for ransom from his crib in his home on March 01. Police conducted an extensive search of the locality but despite their relentless efforts, the child was killed and his body was found on May 12. In 1934, Bruno Richard Hauptmann was arrested and after a trial, which legal scholars often refer to as the ‘trial of the century’, he was sentenced to death for first-degree murder. A somewhat similar incident has taken place in Kasur in form of the brutal murder of a seven-year-old girl Zainab Ansari.
Can the Zainab case be the Lindbergh moment for Pakistan? Ostensibly, the answer is in negative. With the successful resolution of the case, the interest and excitement to energize reforms in Pakistan’s justice system have receded. The politicization and ‘judicalization’ of reforms, in justice sector, have upended, if any, interest in the subject. The instant write-up will try to take stock of two legal matters. First, it will discuss briefly the latest constitutional amendment to the Constitution i.e. the 24th Constitutional Amendment; secondly, it will highlight the criminal law amendments introduced in the last two years to provide some context with regards to criminal justice sector reforms in Pakistan.
I. The 24th Constitutional Amendment
On 22nd December 2017, the President of Pakistan granted assent to the 24th Constitutional Amendment Bill making it part of the Constitution of Pakistan, 1973. The amendment is brief in its content and temporal in its nature as it is only related to 2018 elections.
The 24th amendment has its genesis in the finality of the census figures, which are of two types: (a) the figures of the last preceding census officially published (i.e., of 1998), and (b) the figures of the provisional results of the 2017 census. Article 51 of the Constitution requires that the seats of the National Assembly be allocated to each territorial unit of Pakistan according to figures of type (a) i.e. the figures of the last preceding census, officially. Since the census did not take place at timely intervals of ten years, the complaints about demographical allocation of seats of national legislature were increasing; the increasing complaints further compounded in view of the fact that a belated census took place in 2017 (after an interval of almost 19 years), which stirred a debate in small territorial units of Pakistan. Pressure was on the incumbent government and the Election Commission of Pakistan to follow the figures of type (b) instead of type (a). Based on the mounting pressure and the ensuing political environment in the post-Panama-judgement era, the government along with all other political parties introduced a temporary amendment in the form of the 24th Constitutional Amendment.
b. The Content
Article 2 of the Constitution (Twenty-Fourth) Amendment Act, 2017 (Act No. XXXVIII of 2017), amends article 51(3) and 51(5) of the Constitution, hence resulting in two conceptual amendments:
I. Article 51(3) is related to the number of seats in the National Assembly allocated to each territorial unit. The new and previous seat allocations are as under:
Note: The National Assembly has a total of 342 members, including 10 seats for non-Muslims.
ii. Article 51(5) is amended by adding a proviso to it, which imbibes the temporal nature of the amendment. It provides that the allocation of seats of the National Assembly in the elections of 2018 and their bye-elections will be held on the basis of ‘provisional results of the 2017 census’ (type b).
II. Criminal Law Amendments in 2016 and 2017
In 2016 and 2017, three sets of amendments were introduced to the criminal law of Pakistan. Conceptually, the amendments were remedial in their purport and reach. Each set of amendments is briefly introduced hereunder:
a. The Criminal Law Amendment (Offences in the name or pretext of honour) Act, 2016
Act No. XLIII of 2016, passed on 16th October 2016, introduced a set of amendments aimed at providing remedial legislation in connection with honour killings in Pakistan. With questions about the very nature of the legal system of the country, substantially, the offences against persons have predominantly been codified in terms of Qisas and Diyat injunctions of Islam. The codification was far from perfect, and it seldom provided the requisite results. One area where women’s rights groups advocated reform was with reference to honour killings; the law aimed at addressing this area. The law provides for expanding the doctrine of fasad-fil-arz (literally, trouble or mischief on earth) to include the honour killing in it. It codifies that Qatal (murder) on ‘the pretext of honour’ shall be punished more severely than other types of murders. Besides, it puts the species of such murder in the category of non-compoundable offences. It also enables the courts to penalize wali (guardian) in specific circumstances of a case (where the murder takes place on the pretext of honour). The law amends different provisions of the Pakistan Penal Code, 1860 and the Code of Criminal Procedure, I898. The remedial effects of the law are yet to be vouched as the larger judicial and legal reforms that form the larger framework of the law have not been changed; for the understanding of computer geeks, it is like updating an application without attending to problems affecting the operating system of a computer in which the application operates.
b. The Criminal Law (Amendment) (Offences Relating to Rape) Act, 2016
Act No. XLIV of 2016 provided criminal amendments, which may be briefly discussed as:
i. Amendments to criminalize the conduct of public servants
By amending sections 166 and 186 of the Pakistan Penal Code, 1860 (the general criminal law of Pakistan), the conduct of public servants in cases of failure to do their duties has been criminalized. Defective investigation and ‘failure to pursue a case in court of law’ have been added as new offences. Likewise, instead of introducing a law to check increasing obstruction to law enforcement, a new offence of ‘jeopardizing’ and ‘defeating’ investigation, inquiry or prosecution has been added. The timidity and inaction of public servants, who already feel much insecure, have been multiplied by adding these penal sections to the criminal code. Another addition to PPC is Section 376(4) that provides for punishment with death in case of ‘a police officer or medical officer or jailor, taking advantage of his official position’ committing rape.
Procedure in Rape Cases
Through amendments the following new procedural regime has been introduced to rape-related cases:
- Section 53-A added to CrPC to provide for enabling provision to use force to get DNA of an accused in rape case;
- Section 154 CrPC amended to facilitate the recording of information of a rape victim. The facilitation part of the law is progressive and was already being practiced by police all over Pakistan;
- Section 161 CrPC amended to create more congenial environment for a rape victim for recording her statement;
- Section 161-A CrPC amended to provide for obligating the police officers to inform a rape victim about her right to legal representation, and to provide for a list of lawyers for free legal aid to her;
- Section 164-A CrPC added to ensure timely medical examination of a rape victim;
- Section 164-B CrPC added to ensure processing of DNA within optimal time period;
- Section 344-A CrPC added to ensure that rape cases shall be decided within three months failing which the matter be brought by the court to the notice of the Chief Justice of the concerned High Court;
- Section 352 CrPC expanded to provide for restricted access to trial court in which rape case is being heard, to provide for enabling provision to record evidence through video link and for protection of witnesses.
- Section 417(5) CrPC added to provide for decision of appeal in rape cases within six months.
III. The Criminal Law (Amendment) Act, 2017
Passed on 14th February 2017, the Act No. IV of 2017 provides for procedural changes to the criminal law; the resume is as follows:
- In theory, Section 182 PPC provides for shielding citizens from frivolous and false complaints/applications to public servants. The provision has been buttressed to discourage rising trend of tendering false and frivolous complaints/applications to public servants by providing for enhanced punishments. Unfortunately, like law of defamation, the law is seldom practiced to ward off false litigation and process-mongering in Pakistan;
- Section 298 PPC has been amended to provide for enhanced punishment for using loudspeaker or sound amplifier for outraging the religious feelings of others;
- Section 498-B PPC provides for prohibition of forced marriage. The law provided for a three-year punishment, which has now been enhanced to ten years;
- Article 164 of the Qanoon-e-Shahdat Order, 1984, has been added with a provision that still does not admit to the primacy of modern devices for conviction in criminal cases; the tenuous legislative framework towards modern devices needs to be strengthened;
- In the aftermath of Sialkot-style lynching and due to increasing acts of vigilantism, Section 11-WW has been added to the Anti-Terrorism Act, 1997, thus criminalizing mob-justice;
- Section 23 of the Police Act, 1861 (to the extent of the Islamabad Capital Territory), has been amended to expand the definition of the ever omnibus ‘nuisances’ to include the sectarianism, hate speech, proliferation of hate material by any organization; as a corollary, the punishment has also been enhanced.
American author Henry David Thoreau once said: “The law will never make men free; it is men who have got to make the law free.” This is as true for Pakistan as for any other nation. Criminal law signifies the state power, which has not only to flow from the black-lettered law, but also from rightful actions that have normative value. Unfortunately, the flow of state power is not traversing in this direction.