Prime Minister Imran Khan’s government’s Anti-Rape Ordinance 2020

The September 2020 gang rape of a woman stranded on Sialkot-Lahore motorway shook Pakistan from its apathetic stance on sexual violence against women. The woman who was beaten and raped in front of her children became the tragic rallying sign for the imperativeness of steps for prevention of rape and certainty of punishment.

In December 2020, Prime Minister Imran Khan’s government’s landmark bill for protection of rights of victims and survivors of sexual violence, sexual abuse and rape and the certainty of punishment titled the Anti-Rape (Investigation & Trial) Ordinance, 2020 was approved by President of Pakistan Dr Arif Alvi. Also approved was an amendment in the Pakistan Penal Code, titled Criminal law (Amendment) Ordinance, 2020.

The Anti-Rape (Investigation & Trial) Ordinance, 2020, and Criminal law (Amendment) Ordinance, 2020, when implemented in their true letter and spirit, will be the game-changing legislation for dispensation of justice to all victims of sexual violence or rape.

Barrister Maleeka Bokhari is the chairperson for the Special Committee on Implementation of the Anti-Rape (Investigation & Trial) Ordinance, 2020.

Pakistan Tehreek-e-Insaf’s Member of National Assembly Barrister Maleeka Bokhari is known for her articulate and fiery defence of her government on prime time talk shows. What Bokhari, as visible in her tweets, is also known for is her constant stance of equality and equal opportunities for women.

Bokhari since 2012 has given legal advice to her party. She is also part of the team of lawyers in some key PTI cases, including the Panama case, and the Judicial Commission on General Elections 2013. Bokhari says, “I am inspired by Imran Khan’s consistent stance on the rule of law, in particular, his stance of equal application of the law irrespective of social status and class.”

As the Parliamentary Secretary for Law and Justice Bokhari represents the Ministry of Law and Justice in parliament; her principal responsibility is to respond to all questions and legislative business in parliament. Bokhari in a question about her work says, “I was responsible for the passage of the Islamabad High Court Amendment Bill, and I was part of the team that got the FATF laws passed in September 2020. I have also been part of the team that drafted the Legal Aid and Justice Authority Act 2019, Enforcement of Women’s Property Rights Act 2019, and the Letters of Administration and Succession certificates Act 2019.”

I asked Barrister Maleeka Bokhari a few questions:

What was the principal impetus behind Prime Minister Imran Khan’s government’s realisation of the imperativeness of revisiting the anti-rape laws?

Maleeka Bokhari: There are many reasons why the PTI government led by Prime Minister Imran Khan decided to revisit the anti-rape laws. Firstly, there was a drastic increase in reported cases across the country in relation to sexual violence against children and women. The brutal rape and murder of Zainab, many other little children, cases of sexual abuse, rape and murder of children in Kasur, and the Motorway gang rape. That horrific incident highlighted the issue of sexual violence and rape of women across our country like never before.

There was a realisation within the government ranks that conviction rates across the country were extremely low. Experiences of women who report rape are awfully horrific in terms of investigation, filing of a case, and a trial that takes extremely long. The prime minister was very concerned that steps must be taken to alter the existing laws. He instructed the law minister and the team at the Ministry of Law and Justice that we must come up with a law that ensures that conviction is certain, that women who report rape receive a victim-centred treatment, that cases do not take very long, and that we have special courts that try cases of rape and sexual violence.

The entire idea of a new anti-rape ordinance originated from the prime minister who expressed his concern in his meetings with the law minister and the cabinet. Every time we interacted with him to discuss law reforms the anti-rape ordinance was on the top of his agenda. He gave us a week to draft a law that filled in all the lacunas and loopholes within the justice system that deterred women from coming forward or were an impediment in the way of ensuring women getting justice in cases of sexual violence.

How was the Anti-Rape (Investigation and Trial) Ordinance 2020 formulated? Who comprised the committee that drafted the ordinance? Did you face any difficulty in having the ordinance passed?

This ordinance was mainly drafted by the officials from the Ministry of Law and Justice. Federal Minister for Law and Justice Farogh Naseem headed the drafting committee. I was also part of the committee that drafted the ordinance. We had representation from the Minister of Human Rights Dr Shireen Mazari, and [SAPM] Shehzad Akbar. It was a collaboration of the Ministry of Law and Justice, Ministry of Human Rights, and Ministry of Interior. The vetting and the final drafting were done at the Ministry of Law and Justice. But it was Prime Minister Imran Khan’s vision that guided us.

Prime Minister Khan was insistent that Pakistan could no longer oversee a system in which victims of rape had no access to justice. In the conversations we had with him he was very clear about the necessity to change the law. It was untenable to him that females or children across our country get raped, and the cases could take years while the victims had no recourse to justice. For him it was literally something that could no longer take place in our country, something that required immediate intervention.

The anti-rape ordinance is Prime Minister Khan’s idea. It is his vision, his motivation. And we were the team behind the formulation of his vision into a draft, into a bill. To transform the justice system for women and children who experience sexual violence or rape.

What has been the role of the prime minister in pushing for the new anti-rape ordinance to become a law?

The prime minster has played a very formative and a very important role in the passage of this ordinance. When the motorway gang rape incident took place there was a vehement debate in the country about the experiences of the survivors of sexual violence, and women and children who come into contact with the criminal justice system. Prime Minister Khan had clarity of thought on how the law was inadequate. That law didn’t provide a sufficient system of investigation, prosecution and trial for those who were victims of the heinous offence of sexual violence and rape. He had a very pivotal role because it was him who pushed the Ministry of Law and Justice to draft a legislation that filled in all the loopholes and lacunas that existed in the previous laws, and also ensured that the punishment for the heinous crime of rape was increased.

How is the new ordinance different from the previous one on the process of investigation and punishment of rape?

The new anti-rape ordinance is very different in its composition from the laws that were passed in 2016. Two important bills were passed by the PML-N government in 2016–the Anti-Honour Killing Laws (Criminal Amendment Bill) 2015, and the Anti-Rape Laws (Criminal Amendment Bill) 2015. Those laws prescribed harsher sentences and a more advanced system of delivery in terms of rape investigation, trial and prosecution. But our anti-rape ordinance focuses on ensuring that firstly, we set up special courts for offences that involve sexual abuse against women and children, specifically rape.

This ordinance abolishes the two-finger test, which is a very inhumane practice followed only in Pakistan across South Asia. We have clarified and written it down in the bill that the evidence obtained through the two-finger test will have no probative value in a case.

This ordinance is more victim-centred as we have introduced elements like the provision for independent support advisers, which could be anyone from civil society–a psychologist, a doctor, an activist, a lawyer. These advisers will assist the victim in the process of getting justice in cases of rape and sexual violence. Lists of independent support advisers will be maintained at the district level, and the Ministry of Law and Justice is, as we speak, issuing a public call for volunteers to support us in this initiative.

The new ordinance also ensures that the trial for offences listed in the ordinance are completed within four months, and that all appeals are completed within six months. There will be a speedy dispensation of justice. The time limit has been decreased.

The ordinance also envisages special measures for victims of sexual violence, one of which is that the perpetrator of the crime will not be able to directly ask the victim any question.

Also, the 164 statement that is made for the magistrate will only be recorded once. What we have realised is that females who are victims of sexual violence or rape have to make multiple visits to a court to record statements. That really deters them from coming forward because it is a horrific experience to repeatedly explain to different duty bearers as to what transpired. Now there will be just one 164 statement before the magistrate.

We have also envisaged a new system of investigation in the anti-rape ordinance. We are setting up joint investigation teams. One police officer alone will not be responsible for the investigation of such a heinous crime, an entire team will assist the officer.

We have also envisaged the concept of an anti-rape crisis cell, which will be an extremely important addition. These crisis cells headed by the deputy commissioner or the commissioner of an area will be established in government hospitals at district level across the country. And this is very different from what has been done before because we realise that the most important element in any sexual violence case is the medico-legal evidence. Also important is obtaining evidence and then preserving the evidence for the trial, and that too within time. That is because the admissibility of DNA evidence sort of diminishes with the passage of time, and if we don’t procure it within 72 hours the value attached to it can be quite insignificant. For this process, we will have a team comprising a medico-legal surgeon, police officers, and independent support advisers.

The anti-rape crisis cell will also have a number of responsibilities: ensuring that the medico-legal examination is completed within six hours; an FIR is launched immediately; and investigation begins without any delay. Things that were not happening before will happen now because of a specially designated cell with duty bearers across various government departments that will work together to ensure that investigation is done in a better, more informed, and more victim-centred manner.

Within this anti-rape ordinance, we have tried to ensure that any lacunas that existed in the previous laws are removed through our discussions with experts, gender activists, and people who have worked in this particular area. We are hopeful that once the law is fully implemented through the anti-rape law implementation committee that I head, experiences of women and girls across our country in relation to cases of sexual violence will be different.

When do you expect the bill to turn into a law?

There has been some delay in the National Assembly. The bill is currently in the Standing Committee for Law and Justice where it will be debated and reviewed. We are hoping that it will be passed from the Standing Committee and move to the National Assembly for passage, and then to the Senate. The PTI government will seek support from all political parties on this very important issue. I think it would not be wrong for us to expect that members of the opposition parties do not object to the passage of such an important legislation, a much needed one for women and children of Pakistan. We will reach out to the opposition parties to ensure that they vote for this very important national law in the interest of Pakistan.

How will the anti-rape ordinance ensure the certainty of punishment for a rape convict?

The Criminal Law (Amendment) Ordinance, 2020 was also promulgated with the anti-rape ordinance to make amendments in the Pakistan Penal Code altering certain things, including the definition of rape. It covers three things. Firstly, it has amended the definition of rape making it broader, including explanations in certain areas in line with the best international practices. Secondly, it introduces the punishment of chemical castration for repeat offenders. Thirdly, it includes sentences.

The sentence for someone who commits a gang rape has increased. For rape life means the remainder of life not 14 years. The ordinance has been amended to be more sensitised, and to be more in line with what is happening across the globe. The previous definition was quite restrictive; this one encompasses different scenarios of how rape can be committed against a person.

Recently, you tweeted about the formation of a committee. Who comprises the committee?

In accordance with section 15 of the Ordinance an implementation committee has been formulated. I am the chairperson, and it comprises 42 members from different professions: Justice (Retd) Nasira Javed Iqbal; representatives of Ministry of Interior, Ministry of National Health Service Regulations and Coordination, and Ministry of Human Rights; representative of NADRA; representatives of National Forensic Science Agency, Punjab Forensic Science Agency, Sindh Forensic Science Agency, Balochistan Forensic Science Agency, Khyber Pakhtunkhwa Forensic Science Agency; representatives of Punjab Home Department, Sindh Home Department, Balochistan Home Department, Khyber Pakhtunkhwa Home Department; representatives of Punjab Health Department, Sindh Health Department, Balochistan Health Department, Khyber Pakhtunkhwa Health Department; representatives of National Commission on the Status of Women, Punjab Commission on the Status of Women, Sindh Commission on the Status of Women, Balochistan Commission on the Status of Women, Khyber Pakhtunkhwa Commission on the Status of Women; Amna Baig (PSP); Fauzia Viqar (senior policy and gender adviser); anchorpersons Maria Memon and Fereeha Idris; Barristers Muhammad Ahmad Pansota ASC, Ambreen Malik , Advocate, Barrister Taimur Malik, advocate; Zahoor Ahmad (legislative adviser, M/O L&J); Sharafat Ali Chaudhary, advocate; Valerie Khan (Executive Director GDP); Dr Khadija Tahir (trauma specialist); Dr Summaiya Syed Tariq (Additional Police Surgeon); Nida Aly (Executive Director AJLAC); Nida Usman Chaudhary (Founder WIL); Abuzar Salman Khan Niazi (legal expert); Mehwish Muhib Kakakhel (Sindh Chapter Lead WIL); Hassan Mehmood (Deputy legislative adviser, M/O L&J); Barrister Ambreen Abbasi (consultant, representative of Ministry of Law and Justice; secretary committee).

What are some of the key points of the PTI government’s anti-rape ordinance that would alleviate in some way the pain of reporting and demanding justice for the unimaginable trauma of rape for a victim/survivor?

The issue of the abolition of the two-finger testing… You know, Mehr, this inhumane method of examination, this inhumane practise has existed in this country for decades. Even the anti-rape law that was passed in 2016 did not abolish this practice. All previous governments have failed to intervene in this method of examination, which the United Nations has declared as being unlawful, against all international norms and practices, and something that is inhumane. Practitioners across the globe are of the uniform view that the use of this practice is another form of rape after the victim has been subjected to rape. All previous governments, including that of PPP and PML-N, failed to abolish this test.

It is the PTI government with its empathetic victim-centred approach towards surviors of sexual violence that is ensuring that this callous method of examination is abolished. The credit goes to Prime Minister Khan’s vision, and the Ministry of Law and Justice for ensuring that this practice is abolished under the law, and that no probative or evidential value is attached to it.

Section 14 of the act identifies a very important issue. This is also one of those long-standing issues that have hugely impacted victims of rape and sexual violence across the courts of Pakistan. Experiences of women who have to go to a court multiple times have been narrated as horrific. Firstly, they have to face the accused or the perpetrator of the crime, who is later allowed to ask them questions. I think that for any victim of sexual violence this can be one of the most horrific and damaging experiences of their lives. When you have to face the perpetrator of a crime committed against you.

Across the globe, victims of sexual violence have access to special measures. They are provided screens, which prevent the accused or the perpetrator of the crime from directly questioning them in order to prevent intimidation and harassment, and for the victim to feel safe when giving testimony.

Now for the first time the PTI government has introduced section 14 in the anti-rape ordinance, which ensures that the victim is not being directly questioned by the accused or the perpetrator of the crime, and that all questions are asked through his counsel, or the presiding officer of the court. A big departure from previous practices, it is again evident of a compassionate victim-centred approach to ensure that a victim of rape or sexual violence has full access to justice. I think this speaks volumes about the commitment of the PTI government to ensure that in Pakistan victims of rape are treated in a humane manner, that their experience of going to a court is empathetic, and that they are not vilified. No previous government has ever ensured any of that.

The clause 2 of section 13 of the Anti-Rape (Investigation and Trial) Ordinance 2020 is a new inclusion. And one that is of huge importance: the character of a victim in a rape case. What were the factors behind its inclusion?

I believe that the clause two of section 13 is of great significance. It states: “In respect of any scheduled offence, any evidence to show that a victim is generally of immoral character, shall be inadmissible.”

The intention of the PTI government is to ensure that any evidence comprising a woman’s past history, her past relationships, her character, or any attempt to vilify her person, or to cast any aspersions or any doubt on her character, or to display that she may be immoral should never be admissible in a rape case with the intent to undermine her testimony. In essence, it says that a woman’s personal life, her personal decisions, what she wears, and what choices she makes have no bearing on the matter under the purview of the court in relation to the rape accusation or any accusation of a sexual offence made by the complainant.

The PTI government taking a clear stance in relation to females who are victims of rape and sexual violence has stated that any attempt to declare through any evidence that a female is of immoral character shall mandatorily be inadmissible in such cases.

I think it would go a long way in changing the justice system in support of victims of rape. It is of historic importance that the state, the sitting government, has tried to ensure that a woman’s actions, decisions, choices, and relationships should have no bearing on a rape or sexual offence trial being undertaken in any court across our country. I think there is no past precedent of any government undertaking such clear steps to ensure that women are not vilified in our country. That women are not deterred from going to court. And that women are not subjected to vilification, harassment or scrutiny of their personal choices in cases of rape and other sexual offences.