- Failure to address real issues
The Cabinet committee on legislative cases approved the Anti-Rape (investigation and Trial) Ordinance 2020, but the legislation left those issues unaddressed which may defeat the purpose of the law. There was insufficient clarity on how chemical castration, introduced as a punishment for the first time in Pakistan, was supposed to work. Law Minister Farogh Naseem, who chaired the committee, told the press conference afterwards that the punishment was to be given in place of the punishments under the Pakistan Penal Code, and would be administered only with the consent of the accused. That presumes a confession, but is it to be a form of imprisonment, or a form of parole? Chemical castration is administered to convicts in Europe in lieu of imprisonment.
The new law contains loopholes that defense lawyers may exploit. The first is the requirement for testing. There has been no mention of whether the facilities for medico-legal examination exist everywhere, If a rape is reported in a remote rural area, will the chain of custody of evidence be sufficiently well maintained to resist the defence? The restriction on cross-examination of victims may win kudos, for it seems that defence lawyers take pains to humiliate the victims by innuendo and calumny, but whether the superior judiciary will take a similar view will only be seen afterwards. It must be remembered that such cross-examinations are allowed by the superior judiciary in the interest of allowing the accused a comprehensive defence.
The new law may not last that long, unless enacted. As an ordinance, once it lapses, it cannot be promulgated again. However, unless the police itself is reformed, it merely provides opportunities for policemen to make money. Already, the police handles rape cases in a fashion which ensures that while victims do not get justice, the accused are mulcted for large sums. Now that it has been made a capital offence, rape will join those cases, like murder, where the accused pay the most for the police to muff the investigation. Let alone even token gestures at police reform, the government goes on patronizing victim-shaming officers.