Chaudhry Amad Tahir
On Thursday, 28 September in Committee Room No. 4, Parliament House, Islamabad, the majority of the Senate, despite the flaws of the bill introduced by Senator Mushtaq Ahmed, agreed for publicly hanging rapists. Though at cursory glance, the amendment sought in the current regime seems to be a valid attempt for deterring delinquent behaviour, on deeper appreciation, this proposed amendment, akin to those introduced in the recent past, is but a mere attempt to shove the actual problem under the rug while covering up the failures of law enforcement agencies.
This archaic mindset, mindlessly fascinated by the concept of harsher punishment fails to comprehend, intentionally or otherwise, the root-causes of continuance of crimes against women in our society. Rather, they needlessly emphasise towards the enactment of futile and draconian measures, which in turn silence out their critics for a moment, only for the cacophony of criticism amplifying with each subsequent failure.
They see rigorous penal measures as the sole deterrent. Among various reasons for punishing a convict, one such reason, called ‘General Deterrence’, is based on the idea that crime can be discouraged through the public’s fear of punishment. That may be true, but for a court of law to sanction the accused, certain requirements need to be met, such as the prosecution bringing forth enough evidence to establish beyond a reasonable doubt that the accused is guilty.
This is where the actual issue lies and why Atul Setalvad terms such legislation/amendments as ‘Paper Laws’ while describing them as laws designed to fail and at worse, the failure of such laws shake the confidence of the people in laws in general as they see malefactors going scot-free. If a prosecution is launched, and fails, people lose faith in the courts and the judiciary, even though the actual cause of the failure is a defect in the law or inefficiency or corruption amongst the enforcers and the offender who has evaded one law is tempted to evade other laws.
The issue in Pakistan has never been lack of legislation or more stringent punitive measures, rather, as the Supreme Court of India in Re: Noise Pollution AIR 2005 SC 3136 highlighted, ‘The real issue is with the implementation of the laws. What is needed is the will to implement the laws’. Similar observations were made by the Lahore High Court in Yasir PLD 2022 Lahore 263 that ‘To protect the women in the country against sexual assault, strict implementation of the current law is the first and foremost requirement rather than promulgation the new laws, because non-implementation of laws already enacted is the actual fault line and major hindrance in realizing the purpose of law’.
The fundamental impediment for survivors of rape and sexual assault, from which our policymakers turn a blind eye towards, resides in the deficiency of enforcement of the laws and inadequately trained investigating agencies and medical professions, with courts who are bereft of essential resources to implement.
Effective machinery of law enforcement is a far bigger deterrent in reducing crime in society than more stringent punishment. There is greater likelihood of criminal behaviour being deterred when criminals fear being caught and being brought to justice if they commit a crime. Even otherwise, in order to punish, laws need to be enforced.
Numerous challenges contribute to acquittals of accused persons in rape and sexual assault cases. One significant factor is the absence of Anti-Rape Crisis Cells (ARCC), mandated by the Anti-Rape (Trial & Investigation) Act of 2021, in Punjab. The ARCC, on paper, is designed to promptly provide support and assist victims in obtaining medical examinations, securing evidence, conducting forensic analysis, and filing crime reports with the police. Unfortunately, after two years of the Act coming into existence and a grace year in which the 2020 Anti-Rape Ordinance was introduced, only one ARCC has been established in the whole country, which was inaugurated at MA Jinnah Road near Civil Hospital in Karachi. Similarly, the envisioned Victim and Witness Protection System as stipulated by the 2021 Act remains conspicuously absent, at least in Punjab.
Moreover, the responsibility for investigating offences under the 2021 Act falls upon Special Joint Investigation Teams (JITs). However, the lack of qualified police officers with expertise in sexual assault cases results in a failure to collect crucial evidence during the course of investigation. Likewise, there exists a deficiency in trained medico-legal professionals and female nurses, in addition to, provisions of resources like the sexual assault kit and ambulances etc, all of which necessitate budgetary allocations. In Muhammad Nasir 2023 PCr.LJ 222 Lahore it was observed by the Lahore High Court that ‘Approximately 90% medical examiners are inexpert, untrained and knows nothing about the practical aspects of examining an injured’; because they do not meet the minimum qualification threshold, which is a mere one-month course, this in consequence, violates the right to fair trial as ensured under Article 10A of the Constitution.
Furthermore, the special Gender-Based Violence Courts (GBV Courts) face a daunting challenge. Not only are these courts ill-equipped with necessary resources, such as IT equipment for conducting ‘In-Camera’ trials, but they also see overburdened prosecutors who struggle to oversee a multitude of cases. Due to these reasons, amalgamated with key witnesses not showing up to court for their depositions, which is essential for securing conviction, while the courts helplessly wait for said witnesses to do the needful and give their testimony in court, victims, who had conjured up the spirit in bringing their perpetrator to justice, get disheartened by the traumatizing and perpetually laggard judicial apparatus end up abandoning their own quest for justice while their perpetrator remains at large, ready to prey on the next victim.
When questioned about the lack of implementations or while bringing these issues before them,the policymakers, on one hand, often offer nonchalant responses, citing a dearth of essential resources as the primary obstacle. Conversely, they refuse to acknowledge the existence of these problems leading to more and more acquittals. This, in turn, sets forth the prevailing mindset in our society, that one is free to act as he sees fit because it is unlikely that he’ll face any consequences, thereby creating an endless cycle of lawlessness. They do, without fail, however, introduce amendments as the one in question or new enactments all together to hide or cover up actual problems, as highlighted above, to give an impression of resolute action.
This deceptive practice leads to the conclusion that either our legislatures are unaware of the ground reality of their constant failures or take the easy way out of shunning critics, while losing sight of the fact that effective machinery of law enforcement is a far bigger deterrent in reducing crime in society than more stringent punishment. There is greater likelihood of criminal behaviour being deterred when criminals fear being caught and being brought to justice if they commit a crime. Even otherwise, in order to punish, laws need to be enforced.
This implementation failure is symptomatic of an inability of the government to innovate and learn lessons from its own practices. A theme so often recurring, it’s nauseating.
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The writer is an experienced criminal lawyer who can be reached Adv.ChSmadTahir@gmail.com
