National Sex Offender Register, an ambitious legal fiat hitherto alien to the jurisdiction of Pakistan, is nonetheless a daunting task for implementation. Such a register enlists convicted sex offenders including their address, physical appearance, and criminal history inter alia. This legal innovation is a handiwork of The Anti-Rape (Investigation & Trial) Act, 2021, a first-of-its-own-kind national-level legislation attempting to address the question of the rape epidemic.
Now that the legislation is done, the complexities of execution stare the framers and those tasked to ensure its ground implementation in their eyes. To begin with, basic questions like who can apply for information, to whom, and how much information may be disclosed as a consequence beg answer. The concerns, however, doesn’t cease here.
As far as Act reads, particularly (S. 24(2)), it allows for the multi-agency sharing of NSOR. Thus, multiple data access points shall make it vulnerable for breach and misuse reducing the promise of privacy into a mere farce. Reportedly, NADRA’s data was hacked into issuing 13,000 SIM cards, said Federal Investigation Agency to the National Assembly’s Standing Committee on IT. Similar allegations have also been leveled against almost all banks of Pakistan where the bulk of customer data was hacked sending the bankers into a panic spiral.
Similarly, the law also provides for social dissemination of data for the apparent reason that people deserve to have sufficient knowledge about their surroundings so that they are better placed to make more informed life choices. However, such a wide circulation of data, for popular consumption, may have certain unintended consequences, given the indigenous sociocultural realities of Pakistan. Simply put, a society as traditional & orthodox as Pakistan is not mature enough to pocket such critical and sensitive information.
Even in developed democracies, there have been countless incidents of social boycotting, harassment, & difficulty in finding jobs and housing. The individuals are singled out for verbal abuse and in some instances physical violence. This has put on display the worst form of the exclusionary trend leading to the ultimate otherization of registrants sending the framers of the law into deep thinking about its unintended consequences. More so, in various states, the system of additional checks barring the registrants to be anywhere around a school, community center, park and such other places where children may reside or congregate has led to serious concerns regarding their right to life, movement, and profession or business, etc. In various jurisdictions, such excessive restrictions have been struck down by the courts on these grounds as well. It has forced the registered individuals to shift to the hinterlands, correctional facilities, and in certain instances, has even caused homelessness. In cases where the victim was closely related to the offender, the latter has ultimately lost the ability to return home. This social resistance to the re-assimilation of the offender is antithetical to the correctional and rehabilitative nature of Pakistan’s criminal justice system for it doesn’t espouse a punitive & sadistic model of punishment. Hence, such social excommunication would lead to the imposition of a penalty not originally contemplated by the architects of our jurisprudential edifice.
Those versed in constitutional law can well assess that any intended or accidental disclosure of the information is not going to sit well with the constitutional promise of privacy and human dignity, both being inviolable & non-derogable to say the least, protected under Article 14 of the Constitution of Islamic Republic of Pakistan, 1973, and any offense thereto will not find a sympathetic audience on the bench as well. Hence, any intrusive and invasive mechanism will be challenged before the constitutional courts and eventually declared null & void. Also, it is important to note that the maintenance of privacy requires an all-encompassing effort and would need a few amendments in different laws including but not limited to Article 85 of the Qanoon-e-Shahadat, 1984, erstwhile law of evidence, declaring the record of judicial proceedings a public document.
Another critical question that the rules will be called upon to settle is the degree of permanence of the individual’s data on the register. Logically, the data can’t & shouldn’t be allowed to stay on the register forever for this would be tantamount to eternal damnation besides militating the very idea of the offender’s reintegration into society. Adding, provisions must also be made for the deletion of data that no longer serves any purpose or where the conviction of the accused has been reversed into acquittal by the appellate forum. Care must also be consigned to the cases normally lingering during the pendency of an appeal which may take years to conclude. Consider, at the end of the appellate proceedings the conviction recorded by the trial court is overturned which means that the presumption of innocence (of the accused person) stood established ab initio, what should be his status till the pendency of the appeal? Should there be another list of the offenders with appeals pending adjudication? But then on the flip side, there is a justification to do the otherwise as the accused is duly convicted by the court of competent jurisdiction and till such time it is reversed by some higher court the conviction stays and so does the encumbrances that come with it. Furthermore, recently the European Court of Human Rights (ECHR) has passed a verdict laying down the individual’s fundamental “right to be forgotten,” whereby one may have sensitive & critical information about him removed if & when it is unjustified to be kept. The doctrine is equally applicable in criminal law where once the sentence is served there is no point going on with the slanderous and deleterious effects of the criminal information alive against the offender ad infinitum.
It is trite wisdom that everyone and everything can’t be seen alike. People differently placed and circumstanced are to be treated differently. Similarly, a one-size-fits-all approach in making the NSOR is likely to backfire. Logically, different categories for differently styled offenses must be introduced and the Act provides for it as well. An ordinary rapist cannot be documented at par with one possessing pathological tendencies, and a one-time offender cannot be equated with a habitual one. If, at a later date, government decides to keep a tab on these offenders, it’s extremely important to know the specifics. Also, this will be a huge help in future law-making as well as in keeping a proper trend analysis of the subject.
Such critical questions would mar the efficacy of the law and unless resolved will cause more harm than good.
Now that the legislation is done, the complexities of execution stare the framers and those tasked to ensure its ground implementation in their eyes. To begin with, basic questions like who can apply for information, to whom, and how much information may be disclosed as a consequence beg answer. The concerns, however, doesn’t cease here.
As far as Act reads, particularly (S. 24(2)), it allows for the multi-agency sharing of NSOR. Thus, multiple data access points shall make it vulnerable for breach and misuse reducing the promise of privacy into a mere farce. Reportedly, NADRA’s data was hacked into issuing 13,000 SIM cards, said Federal Investigation Agency to the National Assembly’s Standing Committee on IT. Similar allegations have also been leveled against almost all banks of Pakistan where the bulk of customer data was hacked sending the bankers into a panic spiral.
Similarly, the law also provides for social dissemination of data for the apparent reason that people deserve to have sufficient knowledge about their surroundings so that they are better placed to make more informed life choices. However, such a wide circulation of data, for popular consumption, may have certain unintended consequences, given the indigenous sociocultural realities of Pakistan. Simply put, a society as traditional & orthodox as Pakistan is not mature enough to pocket such critical and sensitive information.
Even in developed democracies, there have been countless incidents of social boycotting, harassment, & difficulty in finding jobs and housing. The individuals are singled out for verbal abuse and in some instances physical violence. This has put on display the worst form of the exclusionary trend leading to the ultimate otherization of registrants sending the framers of the law into deep thinking about its unintended consequences. More so, in various states, the system of additional checks barring the registrants to be anywhere around a school, community center, park and such other places where children may reside or congregate has led to serious concerns regarding their right to life, movement, and profession or business, etc. In various jurisdictions, such excessive restrictions have been struck down by the courts on these grounds as well. It has forced the registered individuals to shift to the hinterlands, correctional facilities, and in certain instances, has even caused homelessness. In cases where the victim was closely related to the offender, the latter has ultimately lost the ability to return home. This social resistance to the re-assimilation of the offender is antithetical to the correctional and rehabilitative nature of Pakistan’s criminal justice system for it doesn’t espouse a punitive & sadistic model of punishment. Hence, such social excommunication would lead to the imposition of a penalty not originally contemplated by the architects of our jurisprudential edifice.
Those versed in constitutional law can well assess that any intended or accidental disclosure of the information is not going to sit well with the constitutional promise of privacy and human dignity, both being inviolable & non-derogable to say the least, protected under Article 14 of the Constitution of Islamic Republic of Pakistan, 1973, and any offense thereto will not find a sympathetic audience on the bench as well. Hence, any intrusive and invasive mechanism will be challenged before the constitutional courts and eventually declared null & void. Also, it is important to note that the maintenance of privacy requires an all-encompassing effort and would need a few amendments in different laws including but not limited to Article 85 of the Qanoon-e-Shahadat, 1984, erstwhile law of evidence, declaring the record of judicial proceedings a public document.
Another critical question that the rules will be called upon to settle is the degree of permanence of the individual’s data on the register. Logically, the data can’t & shouldn’t be allowed to stay on the register forever for this would be tantamount to eternal damnation besides militating the very idea of the offender’s reintegration into society. Adding, provisions must also be made for the deletion of data that no longer serves any purpose or where the conviction of the accused has been reversed into acquittal by the appellate forum. Care must also be consigned to the cases normally lingering during the pendency of an appeal which may take years to conclude. Consider, at the end of the appellate proceedings the conviction recorded by the trial court is overturned which means that the presumption of innocence (of the accused person) stood established ab initio, what should be his status till the pendency of the appeal? Should there be another list of the offenders with appeals pending adjudication? But then on the flip side, there is a justification to do the otherwise as the accused is duly convicted by the court of competent jurisdiction and till such time it is reversed by some higher court the conviction stays and so does the encumbrances that come with it. Furthermore, recently the European Court of Human Rights (ECHR) has passed a verdict laying down the individual’s fundamental “right to be forgotten,” whereby one may have sensitive & critical information about him removed if & when it is unjustified to be kept. The doctrine is equally applicable in criminal law where once the sentence is served there is no point going on with the slanderous and deleterious effects of the criminal information alive against the offender ad infinitum.
It is trite wisdom that everyone and everything can’t be seen alike. People differently placed and circumstanced are to be treated differently. Similarly, a one-size-fits-all approach in making the NSOR is likely to backfire. Logically, different categories for differently styled offenses must be introduced and the Act provides for it as well. An ordinary rapist cannot be documented at par with one possessing pathological tendencies, and a one-time offender cannot be equated with a habitual one. If, at a later date, government decides to keep a tab on these offenders, it’s extremely important to know the specifics. Also, this will be a huge help in future law-making as well as in keeping a proper trend analysis of the subject.
Such critical questions would mar the efficacy of the law and unless resolved will cause more harm than good.