Protection of Women Against Violence – New bill passed by the Punjab Assembly

On 25 February 2016, the Provincial Assembly of Punjab passed the Punjab Protection of Women Against Violence Bill, 2015 (the “Protection Bill”).

Q. What is it?

The Protection Bill aims to make a “special provision for the protection of women”, “to protect women against violence including domestic violence, to establish a protection system for effective service delivery to women victims and to create an enabling environment to encourage and facilitate women freely to play their desired role in the society, and to provide for ancillary matters”.

Q. What is domestic violence?

Section 2 (h) defines “domestic violence” as:

the violence committed by the defendant with whom the aggrieved is living or has lived in a house when they are related to each other by consanguinity, marriage or adoption;

Section 2 (r) defines “violence” as:

any offence committed against a woman including abetment of an offence, domestic violence, emotional, psychological and verbal abuse, economic abuse, stalking or a cybercrime;

Q. What are the other key definitions of the Protection Bill?

The following definitions, in Section 2, are key:

(a) “aggrieved person” means a woman who has been subjected to violence by a defendant;

(e) “dependent child” means a child who is below the age of twelve years of age and includes any adopted, step or foster child;

(j) “house” includes a place where the aggrieved person lives in a domestic relationship irrespective of right to ownership or possession of the aggrieved person, defendant or joint family;

Q. What are the plans for implementation?

For implementation, Section 3 provides that the Government shall, amongst others:

(a) institute (establish) a universal toll free dial-in-number for the aggrieved persons;

(b) establish Protection Centres and shelter homes under a phased programme;

(c) appoint necessary staff at a Protection Centre for mediation and reconciliation between the parties, rescue, medical examination, medical and psychological treatment and legal help of the aggrieved persons and proper investigation of offences committed against aggrieved persons;

(d) raise awareness about the issues involving women and the requirements of protection and relief of the aggrieved persons.

Q. What steps should be taken to seek protection and what happens then?

1. The aggrieved person, or any other person authorized by the aggrieved, or a Women Protection Officer, appointed under Section 14 of the Protection Bill, may submit a complaint for obtaining a protection, residence or monetary order for the aggrieved.

2. The relevant court shall be (1) where the aggrieved resides or carries on business; (2) where the defendant resides and carries on business; (3) where the aggrieved and the defendant last resided together.

3. The court shall then start proceedings not more than seven (7) days of the date of receipt of the complaint by the court.

4. The defendant shall be notified to show cause (appear in court) within seven (7) days. If a defendant fails to respond within the specific time, the court shall, subject to another notice to the defendant, assume that the defendant has no plausible defense and proceed to pass such order as the court deems fit.

Q. How will the court protect the victim.

1. Protective Order: If the court is satisfied that any violence has been committed, or is likely to be committed, the court may pass a protection order in favour of the aggrieved person and direct the defendant to, inter alia, not communicate with the victim, stay away from the victim, stay at a particular distance from the victim, wear an ankle or wrist GPS tracker to track the movement of the defendant at all hours, surrender any weapons, refrain from entering the place of employment of the victim, refrain from causing or aiding or abetting any act of violence; and/or refrain from committing such acts as may be specified in the protection order.

2. Residence Order: In the event of domestic violence, the court may pass a residence order directing that, inter alia, the victim shall not be evicted from the house, the victim has the right to stay in the house, the defendant shall not sell or transfer the house to any person other than the victim, the victim may be relocated to a shelter home (established under Section 13 of the Protection Bill), and/or the victim be relocated to some alternative accommodation.

3. Monetary Order: The court may also pass a monetary order ordering the defendant to pay monetary relief to meet the expenses incurred and losses suffered by the defendant which may include, inter alia, loss of earning, medical expense, damages for destruction of property, and/or maintenance of the victim and her dependent children.

Q. Where does the aggrieved person go during proceedings?

Under Section 5 of the Protection Bill, the victim shall not be evicted from the house without her consent.

Q. What are some of the shortfalls of the Protection Bill?

Some shortfalls are:

  1. The offender, it appears, can only be a person who is known to the victim by consanguinity, marriage, or adoption and does not cover such relations that the victim may have to face on a day to day but do not fall within this category, such as relatives-in-law.
  2. The legislation only provides for domestic violence against women; whereas, men may also be victims of domestic violence.
  3. The stringent timelines in the Protection Bill places a heavy burden on the courts without any mechanism of assistance to the courts.
  4. The requirement to consistently monitor protection officers to ensure that such officers do not add to the distress and instead handle issues with care, empathy, and efficiency.
  5. Regular training to the toll-free number representatives to ensure that they are able to provide advice in a quick and efficient manner, respect anonymity, and are available round the clock.
  6. The legislation does not cover dowry and the culpability of giving or receiving the same. The analogous legislation in India, Protection of Women from Domestic Violence Act, 2005, criminalized the offence of giving and receiving dowry.
  7. The need for mechanisms to ensure that this legislation is not misused, for example, verbal abuse is a wide term to report violence. Such mechanisms, though, should not be at the cost of restricting, reserving or downplaying genuine cases of violence against women and should not give too much discretion to the reporting officers.
  8. Custody of children should have been included in the legislation to ensure that the victim is not deprived of full right to her children.
  9. The legislation appears to have the limited scope of civil instead of (the more preferable) criminal law. Criminal sanctions (arrest and imprisonment) require a further offense by the accused respondent (such as violating a protection order issued under this law). This may, however, be a deliberate factor of the legislators to ensure quick and flexible relief for the victim.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and (ex) Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

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Whistleblower Protection in Pakistan

A whistleblower is a person who raises concern or awareness about a wrongdoing in their workplace, either state or private. 

In the recent years, with the testimonies of Edward Snowden (an American computer professional, former CIA and US Government employee who copied classified information from the United States National Security Agency (the “NSA”) in 2013 without prior authorization. This information revealed numerous global surveillance progams and brought the issue of privacy, security and surveillance to global discussion), Julian Assange (the founder of Wikileaks that publishes secret information, news leaks, and classified media from anonymous sources), and Bradley Manning (a US army officer who disclosed information to Wikileaks), whistleblowing has become a much discussed topic receiving equal amounts of support and opposition.

Whistleblowing, however, has been practiced for centuries. From the Ramayana, where Vibhishan, younger brother of the King of Lanka, Ravana, informs Ram about the whereabouts of Sita, the consort of Ram, to the Watergate scandal that toppled the presidency of Richard Nixon on the information provided by a secret informant known as Deep Throat (revealed in 2005 as Mark Felt). Whistleblowing has grave consequences for the accused and the accuser. The whistleblower, though seemingly working for the greater good, is oft seen as dangerous and misguided (e.g. why did he have to make the information public, why didn’t he use the correct mechanisms) and forced to live either in hiding, never revealing his identity, or in exile.

In Pakistan, there is no specific legislation on whistleblower protection on a Federal level. Within the provinces, only Khyber Pakhtunkhwa, vide the Khyber Pakhtunkhwa Right to Information Act, 2013 (the “KPK 2013 Act”), provisions for the protection of whistleblowers (Section 30). Section 30 of the KPK 2013 Act provides for protection of whistleblowers as follows:

30. Whistleblowers.—(1) No one may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

(2) For purposes of sub-section (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body.

The other provinces also have similar acts: Punjab has the Right to Information Act, 2013; Balochistan has enacted the Freedom of Information Act, 2005; and Sindh has enacted the Sindh Freedom of Information Act, 2006 (collectively referred to as the “Acts”). However, there is no provision in the Acts which is analogous to Section 30 of the KPK 2013 Act or provides for protection of whistleblowers.

The fate of whistleblowers is, therefore, left to the jurors deciding each case upon its facts. The following factors act as a deterrent against whistleblowing:

  1. Red-tapism; no outcome of the complaint made using the correct procedures, if any, available.
  2. Defences, such as national security, interest of the state, and confidentiality obligations, argued, usually successfully, by the accused.
  3. No procedure for the protection of the identity of the whistleblower.

The Eighteenth Amendment to the Constitution of Pakistan, 1973, with the insertion of Article 19A, allowed citizens the right to have access to information in all matters of public importance. The Eighteenth Amendment was an attempt to bring information “in all matters of public importance” to the public sphere. Public bodies, officials, institutions were now required to record, store and be accountable for the information used and processed by them. Unfortunately, the Eighteenth Amendment was qualified with the proviso “subject to regulation and reasonable restrictions imposed by law” that resulted in curtailing the rights of citizens. The proviso provided an opening for the holders of information to restrict access. The only remedy available to citizens seeking information under Article 19A is challenging any refusal in the courts which include the usual issues with court proceedings, i.e. years of litigation, costs, waste of time, etc.

The text of Article 19A is as follows:

19A. Right to information.−Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Rape Laws in Pakistan

Q. What is rape under the laws of Pakistan?

A. Rape is defined in Section 375 of the Pakistan Penal Code, 1860 (the “PPC”) as follows:

Rape. A man is said to commit “rape” who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

(i) against her will,

(ii) without her consent,

(iii) with her consent, when her consent has been obtained by putting her in fear of death, or of hurt,

(iv) with her consent, when the man knows that he is not married to her and that her consent is given because she believes that the man is another person to whom she is or believes herself to be lawfully married; or

(v) with or without her consent when she is under sixteen (16) years of age.

Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Q. What is the penalty for rape?

A. The maximum penalty for rape is death and/or imprisonment for twenty five (25) years and/or fine.

Q. Is marital rape provided for under the laws of Pakistan?

A. Although marital rape is not expressly criminalised in the PPC or other laws in Pakistan, the legal position of the law remains debatable. The previous law on rape, the repealed Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (the “Zina Ordinance”), provided in Section 6(1), the definition of “zina bil jabr” as “a person is said to commit zina-bil-jabr if he or she has sexual inter-course with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely…” (emphasis added)

The Protection of Women (Criminal Laws Amendment) Act, 2006 omitted this Section and moved the offence of rape under the PPC. The definition of rape under Section 375 of the PPC, supra, did not include the words “to whom he or she is not validly married”. In light of this amendment, it is argued that the legislature intended that “validly married” should be removed as a defence for rape. There are, however, no reported judgements of the superior courts that clarify the position of the law.

Q. What is the procedure of reporting rape cases?

A. The victim is required to report the case to the police station and issue a statement. Firstly, the police reviews the contents of the statement of the victim to evaluate whether a cognizable offence has been committed. A magistrate oversees the workings of the police stations within the jurisdiction. However, a police office may investigate the offence if he sees sufficient grounds. If a court takes cognizance of an offence, it may initiate judicial proceedings against the accused with respect to the offence. The court considers, inter alia, as follows:

(i) whether the offence falling within its jurisdiction is made out or not;

(ii) whether the offence is committed in its territorial jurisdiction;

(iii) who are the persons responsible for the commission of the offence; and

(iv) whether in the Court’s opinion sufficient grounds exist for the commission of the offence.

The Criminal Procedure Code, 1989 (the “CPC”) does not award any discretion to the police to delay or refuse the lodging of an FIR by a complainant (see, Shehnaz vs. the State, 2010 PCrLJ 231 Federal Shariah Court).

Q. Is character or sexual history of the victim important to the decision in rape cases?

A. Case law provides that usually a statement by the victim if corroborated by medical evidence is sufficient to prove the allegation of rape punishable under Section 376, however, if the victims own character appears to be “doubtful” then her solitary statement cannot be deemed sufficient to prove the allegation (see, generally, Ghulam Mohay-ud-din vs. The State, 2012 PCrLJ 1903, Section 151 (4) and 21 (j) of the Law of Evidence).

A purview of the case law suggests that it is essential that the statement of the victim be trustworthy.

In Shakeel vs.The State, PLD 2010 Supreme Court 47, it was held that when various questions could not extract anything beneficial to the accused, then there was no reason to disbelieve the prosecutrix and conviction could be awarded on her solitary statement, where it was considered trustworthy. In such an event no corroboration would be needed. Even if it was admitted that prosecutrix was a girl of “easy virtue” no blanket authority could be given to rape her.

Moreover, if a girl who has otherwise attained puberty and is under sixteen (16) years of age admits to having entered into a marriage in explicit terms, then it is a valid marriage and intercourse is not unlawful (see, generally, Allah Nawaz vs. Station House Office, Police Station, Muzaffargarh, PLD 2013 Lahore 243).

Q. What are the components of proving a case of rape and who has the burden of proof?

Proof of rape is dependant on the independent facts of every case and, inter alia, includes the following:

(1) Medical evidence and examination (see, Abdul Waheed vs. Dai, 2012 YLR 2701 (Karachi));

(2) Timing of the first information report (the “FIR”) with the Police (see, Abdul Waheed vs. Dai, (supra));

(3) Eye-witness account and the trustworthiness thereto (see, Muhammad Arshad vs. The State, 2012 YLR 886 Federal Shariah Court);

(4) Statement of the complainant (see, Mazhar vs. The State, 2012 YLR 652 (Federal Shariah Court), and Zakirullah vs. Safia Bibi, 2014 PCrLJ 1542 (Federal Shariah Court)).

Burden of proof is on the complainant/prosecution to prove “beyond shadow of doubt” (see, Muhammad Arshad vs. The State, 2012 YLR 886 Federal Shariah Court)

Q. What are the aggravating factors in respect of rape cases?

A. The aggravating factors are:

1. Gravity of the crime (see, Mazhar vs. The State, (supra), and Hakim Jan vs. The State, 2014 PCrLJ 1355 (Peshawar))

2. Conduct of the accused (see, Khadim Hussain vs. The State, 2011 PCrLJ 1442 (Federal Shariah Court), and Ali Hassan vs. The State, 2013 YLR 937 (Karachi))

3. Prior planning and intention (see, Hakim Jan vs. The State, 2014 PCrLJ 1355 (Peshawar), and Zahida Parveen vs. Muhammad Afzal, 2014 PCrLJ 819 (Peshawar))

4.Married status of offender. If offender was unmarried, the quantum of punishment was somewhat less than that of a married one (see, Zulfiqar Ali vs. The State, 2012 YLR 847 Federal Shariah Court).

5. Relationship with the accused.

Q. Are there any procedural rules to protect the victim in cases argued at court?

A. With the case of Salman Akram Raja vs. Government of Punjab, 2013 SCMR 203, the petitioner, Mr. Raja submitted that:

1. Trials for rape cases should be conducted in camera, by female judges, where possible, and after regular court hours, to allow the victim to make her statements free from psychological distress and trauma. He referred to the provisions of the Indian Code of Criminal Procedure which provides that in-camera trials should be conducted by a woman judge or magistrate;

2. A screen or some other arrangement should be made so that the victims and vulnerable witnesses do not have to face the accused;

3. Questions put in cross-examination on behalf of the accused should be given in writing to the Presiding Officer of the Court who should put them to the victim or the witnesses in a clear and non-degrading manner; and

4. Evidence of rape victims should be recorded through video conferencing so that the victims need not be present in court.

Furthermore, the court considered guidelines to police, hospitals/doctors, child welfare committees, sessions courts, magistrate courts, prosecutors and other concerned authority, prepared by the Delhi Commission of Women in the case Delhi Commission of Women vs. Delhi Police (W.P. No. 696/2008). Although such recommendations were submitted, they are still under consideration of the concerned authorities and are yet to be incorporated in the legislation. The Supreme Court of Pakistan considered the prayer of the petitioner, Mr. Raja and disposed the petition in light of such recommendations/prayers.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

How to use www.pakistanlawsite.com

3 January 2014

New entrants in the field of law often find themselves struggling with basic research tools. For the internet raised generation, http://www.pakistanlawsite.com (the “Law Site”) provides an easy, efficient and comprehensive first step to researching law, precedents, judgments, commentaries, articles etc.

Usually law firms and lawyers maintain an account with the Law Site (much like an email account) by making periodic payments for the permission to use the same.

To subscribe for a new account, you have to register on the website.
The details, payment terms and terms and conditions are provided on: http://www.pakistanlawsite.com/RegistrationHelp.asp

If there is already an account maintained then the user may insert the “username” and “password” and tick the box next to “I accept the terms and conditions” on the homepage to login to the website.

Once logged in, the left side of the Law Site offers “Case law Search”, “Advance Search”, “Statute Search”, “Courtwise Search”, “Citation Search” and “Article Search”.

1. Case Law Search
To search the relevant case law on a matter, click the tab “Case law Search” and insert the matter that you require case law on. For example, insert “ultra vires” in the search box and click enter.

The search engine will provide all those cases/judgments that have mentioned “ultra vires” in the document. To get an idea of the judgment read the “Case Notes”, however, it is standard and good practice to read the complete judgment before providing reference to the same.

If you know the particular Section of an Act/Ordinance or Rules or Regulations (the “Statute”), you may access the Statute and click on “Cases” under the relevant Section.

Access to Statutes is provided below.

2. To search for a Statute, click the tab “Statute Search”. The Statutes (Acts, Ordinances, Rules and Regulations) are provided alphabetically. However, if you are unsure about the name, you may search the statute by inserting the year in the search bar.

An easier way is however to type out the statute name (or as much as you know of it i.e. Contract Act Pakistan) in http://www.google.com and find out the correct/complete name of the same including the year. It is then easier to find it alphabetically on the Law Site.

Google also generally has the popular statutes however, the completeness and the authenticity of the same can not be verified. It is often safer to rely on the Law Site.

3. If you are aware of the citation of the case (i.e. PLD 2003 Karachi 1) then you may access the case notes of the judgment in “Citation Search”.

For beginners, the above three (3) provide the easiest and most effective research ability online.

Be sure to always confirm whether a judgment or statute is still valid and always provide the citation of the same.

Good luck!

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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com