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Back to square one in women's bail laws

October 08, 2011

Government officials including the capital police cite the increased numbers of women accused of crimes such as cases of thefts and narcotics a result of the Women Protection Act-2006. – File Photo

In the tussle for bail laws related to women criminals is hidden a question of whether women should have loose bail laws or not? 2006 saw bail given to women as a right, and 2011 saw it reversed such that bail can only be granted by the court. The end result, it seems, is that almost nothing has changed.

The two women were sitting quietly in the hawalat (lockup) waiting to be taken to the court. They had been arrested for smuggling over 1,000 grams of charas into Islamabad from Peshawar. Unable to communicate in Urdu, one of the women explained in Pushto that she needed money to support her three children as her husband was dead.

She added that a man from her village convinced her to travel with him to Islamabad on the Peshawar No 26 bus and take some things along with her.

The woman claimed that she was not aware of the contents of the luggage given to her.

She had been in Adiala jail for three months now. Her last question before leaving for court, urgently delivered with tears in her eyes, was, “Will I get bail?”

Stories such as these reveal the impact changes in law have on people — had this woman been arrested just a year earlier, she would have got bail immediately.

This is because this year the government quietly reversed the changes accomplished in 2006 as part of Women’s Protection Act (WPA-2006) under which bail was provided to women as a right in all the bailable offences. This change was introduced through the Code of Criminal Procedure (Second Amendment) Ordinance, 2006 (CrPC Amendment 2006).

The amendment made most crimes by women bailable except “terrorism, financial corruption, murder and offences punishable with death or imprisonment for life or imprisonment for ten years”.

Mostly meant to decrease the number of women languishing in jails, especially those accused of Zina, the WPA-2006 made it harder for the police to hold women in jails.

In 2011, the government presented the Criminal Procedure Code Amendment Bill to the National Assembly which was passed and signed by President Asif Ali Zardari to become the Criminal Procedure Code Amendment Act-2011 (CrPC Amendment Act-2011).

Islamabad District Attorney Mehfooz Paracha said: “By the CrPC Amendment Act-2011, the previous law has been revived; now, bail is granted to the accused whether male or female, keeping in view the facts and circumstances of the case rather than on gender basis.” Now, like before the introduction of WPA-2006, bail can only be given by the court, individualised according to the merits of each case and applicant. However, his view is not shared by everyone.

According to a National Commission on the Status of Women (NCSW) document on the change, the CrPC Amendment Act-2011 “has put unfortunate women again at the mercy of the system. And women may be detained on minor offences and even in family disputes and the grant of bail will not be their due right.”Women rights activists are up in arms at the idea.

Farzana Bari, a civil rights activist, called the move a dangerous reversal. “More than 80 per cent of the gains achieved through the Women Protection Act-2006 have been lost,” she maintained.

She added that she was surprised by the suddenness with which the law was amended: “We found out about the bill only after it had been passed; no one heard about it. No one understood what happened or why?” she lamented.According to Mehfooz Paracha, the change was instigated by the feedback from the judicial system, the police and other concerned departments that were affected by the 2006 amendment in CrPC.

He explained that the provision for bail provided criminals an incentive for utilising women in crimes; if the women got caught, they got bail and were freed quickly making it harder for the police to collect evidence, convict them or their accomplices.

Arguing that getting remand/custody of the accused is critical to the investigations, Paracha said that the police/investigating officer used this period to gather evidence and incriminate the accused. This step, he argued, was rendered ineffective by the 2006 law.

According to Paracha, “So many offences which are punishable with imprisonment less than ten years became bailable for women and it became easier for the criminals to engage women in all those offences.” Consequently, he explained, the women involved in the offences as well as their co-conspirators or those who trapped them got away scot-free.

In fact, when asked, government officials including the capital police cite the increased numbers of women accused of crimes such as cases of thefts and narcotics a result of the Women Protection Act-2006.

For instance, the police in Islamabad pointed out that compared to 90 arrests of women for narcotics related crimes in the year 2009-2010, the next year (2010-2011) saw 104.

Seen in this context, the account of the woman interviewed in the hawalat is a standard account of a ‘narcotics smuggler’. She claimed that she was trapped and had no idea of the crime she was committing and that she knew little of her accomplice.

It would have been difficult if not impossible to find out whether the woman was lying or not because earlier she would have been given bail immediately.

This is why a senior officer in Islamabad police argued that it was important to have a system in which courts granted bail according to the merit and circumstances of each case rather than a free-for-all.

When asked about the adverse impact the 2011 reversal would have on women, another senior officer in the Islamabad Capital Territory Administration felt: “The issue is not one of freedom but of institutions and maintaining sanctity of space. If there are fears that injustice is done to women in jails, the prisons need to be improved and steps should be taken in this regard. Loosening the bail laws is not the solution.” He added that if a woman has committed a crime, the laws should not allow her to gain acquittal easily, rather she should be given due treatment.

Nonetheless, the government’s version is not bought by everyone.

Conceding that law was being misused by criminal elements, women’s right activists are of the opinion that amendments could have been introduced to check the misuse without robbing women of all the concessions.

Riffat Butt, a lawyer at National Commission for Status of Women suggested that bail laws could have been modified to make narcotics offences non-bailable (given that quantities are specified). Bari echoes her views.

They were both at a loss to understand why the bail laws had to be reversed almost completely.

Indeed, women’s rights organisations are frustrated by the reversal of the small gains achieved in 2006 especially because of the near-universal consensus in administrative and police offices in favour of the reversal. For the women, 2011 seems to have taken them back to the proverbial square one.