The Anti-Rape (Investigation and Trial) Act, 2021

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Rule-making under

The Anti-Rape (Investigation and Trial) Act, 2021

Pakistan is in the neighbourhood of Afghanistan and Iran, and is often categorized with these countries when it comes to Gender-Based Violence (GBV). This categorization is misconceived. Pakistan is a country with a huge Muslim population but has been able to look at Islamic law and Eastern values related to women quite differently from its neighbours. Despite acute political polarization, the country has witnessed the enactment of the Anti-Rape (Investigation and Trial) Act, 2021, (the Act) in 2021. After the change of the governments at the federal and provincial levels in 2022, it was not clear whether the newly-installed governments would support the law in its present form that envisaged a scheme that collocated federal and provincial governments for the implementation of the law. Things soon became clear when the incumbent federal government promulgated three sets of rules under section 19 of the Act in February 2023. These three sets of rules provide the much-needed meat to the primary legislation of the Act. The instant write-up is exploratory in nature as it will outline brief details of these rules and will comment briefly on their implementation to take the discourse further and to excite further consideration and thinking on the subject.
Rule-making
After the Mustafa Impex Case in which the Supreme Court of Pakistan declared that all the decisions of the government must be made by the cabinet, the exercise of writing rules for different pieces of legislation has become challenging. Unlike in the past, now every set of rules that is placed before the cabinet is open to more discussion and scrutiny. In these circumstances, top bureaucrats are very careful and choosy in placing rules before the highest executive forum. Conscious of these intricacies of the actual machination of decision-making in the country, section 15 of the Act provided for the mechanism of a Special Committee (comprising specialists and activists) that had to propose rules under section 19 of the Act. The Special Committee could propose rules related to the investigation, trial and medico-legal, rehabilitation of victims and for the training of police, prosecutors, judges and medico-legal officers. Out of these areas, the Special Committee proposed rules in three areas, i.e. investigation, trial and medico-legal. Besides these rules, the Act enabled the Special Committee to propose rules related to the Register of Sex Offenders under section 24 of the Act; the rules related to data protection and sharing are yet to be proposed.
Rules related to an investigation
The Anti-Rape (Investigation) Rules, 2023, is a brief document with eight rules. The Act, in its section 9, provided for the Special Sexual Offences Investigation Units (SSOIUs) to be established in every district. Building on that architecture, the Rules have stated the duties of the Officer-in-Charge (of SSOIU) and Investigation Officers (of criminal cases). The rules, in their present form, have to be refined to sync with the Police Rules and the Code of Criminal Procedure, 1898. Rule 6 obligates the IO to collect evidence professionally and without delay. The obligation is deep-rooted already in the criminal justice legal framework but is seldom acted upon due to a lack of funding for the crime-scene equipment that is resource-intensive. The Rules have not imagined the role of the forensic officers (like the scientists of the Punjab Forensic Science Agency) and the prosecutors. The Rules are very general in their purport and must be improved to specific levels to ensure that their non-compliance is not tolerated by the criminal justice system, as a whole; this does not mean that these have to be punitive, but these must be enabling and specific.
Rules related to trial
The second set of rules is the Anti-Rape (Trial Procedure) Rules, 2023. There are eleven rules in it. The rules are progressive. Rule 3 requires the judge to issue a trial-scheduling certificate after the framing of charges. Likewise, the same rule requires the judge to schedule not more than three cases for trial at a time. This, perhaps, is far from reality in the prevailing circumstances. Rule 4 enables judge to decide all aspects related to the trial beforehand. This enabling provision, if applied, will be very helpful. Special rules for trial and evidence-recording have been added. The thrust is on the introduction of efficient and IT-based support. Video conferencing, instead of actual physical presence, has been allowed through the Rules. The Rules also allow video recording of evidence through foreign missions of Pakistan. The rules do not provide judges the power to pass gagging orders that can help maintain the confidentiality and privacy of victims.
Rules related to anti-rape crisis cell and medico-legal
The Anti-Rape (Crisis Cell and Medico-Legal) Rules, 2023, form the third limb of the Rules. Elaborating on the administrative structure of the Anti-Rape Crisis Cells (ARCCs) established under sections 4 and 5 of the Act, the Rules obligate the state and its functionaries to establish ARCCs with some infrastructure that has been detailed in Rule 3 of the Rules. Rule 5 has mandated that all victims must be provided medical treatment. Rule 10 talks about police-medico-legal cooperation by obliging police officers to facilitate medico-legal officers. There is a Schedule B attached to the Rules that provides general guidelines for the medico-legal procedures and identifies fifteen steps that must be fulfilled by a medico-legal officer.
Concluding remarks
Pakistan’s record of rule-making under different enactments is not very impressive; in fact, many enactments have yet to see their detailed rule-making take place. By that standard, the Special Committee and the Ministry of Law and Justice have achieved a lot by making these rules that provide the wherewithal to the laws. These rules, in their present form, are yet to be reconciled with other laws, and providing non-absence clauses will not help much. The rule-making must be complemented by budget-making for GBV as required by the Constitution of Pakistan which links all law-making exercises with budget-making. No doubt, the direction of Pakistan is right in developing justice-sector responses to GBV, but without resources and leadership from the justice sector, the rules alone are not likely to bring about a sea change in the way things are done at the moment.

The author is an independent researcher and has done his BCL from the University of Oxford. Email: kamranadilpsp@gmail.com

 

Muhammad Ali Asghar

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