Image Description – A picture of Judge’s Gavel.
In August 2015, a gang running a pedophile and pornography ring assaulted more than 280 children. Although several arrests were made, only the acts of rape were punishable by law at that time as Pakistan had no law regarding child pornography. Against this backdrop, the Pakistan Penal Code (PPC) was amended and sections 292-B & 292C were added to criminalise child pornography. Following this, a special law, Prevention of Electronic Crimes Act 2016 (PECA), was also enacted which criminalised child pornography under section 22.
However, a report has revealed that no reliable or official data exists on cases of child sexual abuse in Pakistan. The cases remain massively underreported due to the absence of survivor-centric mechanisms at all stages of the criminal justice system (CJS) in Pakistan.
On 14 January 2022, Justice Mohsin Akhtar Kiyani of the Islamabad High Court (IHC) delivered the landmark judgement in Muhammad Shahzad Khaliq v. The State. Through this judgment, the IHC issued survivor-centric guidelines to be followed by the CJS in cases of child pornography.
After reviewing the caselaw and legislation on protection of child victims/survivors and witnesses in the USA, UK, Jamaica and India, the IHC observed that Pakistan’s legal system had failed to secure the rights of the child victim in cases of child pornography.
Additionally, the IHC observed that Pakistan is a signatory to the Convention on the Rights of the Child (UNCRC), therefore, the international standards regarding child pornography have to be considered in line with the Optional Protocol to the Convention on the Rights of the Child on Sale of Children, Child Prostitution and Child Pornography (Optional Protocol). This includes article 8 of the Optional Protocol, which states that the State parties must adopt appropriate measures to protect the rights and interests of child victims at all stages of the criminal justice process. Moreover, the IHC observed that on 10 September 2019, guidelines were issued for implementation of the Optional Protocol under which State parties are required to provide support and legal counselling to assist child victims at all stages of the criminal justice proceeding, as well as to ensure that the best interest of the child is the primary consideration.
In paragraph 30 of the judgment, the IHC held that Pakistan being signatory of the UNCRC has to apply the Optional Protocol in letter and spirit. The IHC provided the following guidelines:
- The victim should not be exposed to the accused or the court environment, and their testimony should be recorded through video conferencing in a protective environment (for example: home) or through protective shields in the courtroom.
- The victim should not be called to the court, if the evidence is based upon video, IT Data, mobile data, information system etc. and confirmed by the Forensic Science Agency through their report.
- The pornographic material shall not be displayed in the court of law.
- The court can consider that the sentences be run consecutively with other offences, in line with the deterrent theory of punishment, in order to protect the society from heinous crimes, such as child pornography.
- The trial court shall pass an order for elimination of all child pornographic data, images or videos.
- Trial courts shall ensure that the trials of the cases relating to child pornography are conducted in-camera.
Additionally, after a comparative analysis, the IHC directed the federal government to amend section 22 of the PECA and enhance the sentence from seven years (maximum) to the standards in place under section 292-C PPC (minimum fourteen years and up to 20 years maximum) to harmonise the sentences in two separate laws for the offence of child pornography.
The judgement by the IHC is being celebrated across Pakistan. However, it has been estimated that less than 10% of survivors/victims globally seek assistance from the justice system, such as the police, health services and courts as they risk facing re-traumatisation. The government must provide gender sensitivity trainings to all CJS actors and stakeholders. Moreover, appropriate resources must be allocated to implement survivor-centric mechanisms in the courtrooms.