Laws, protocols and trafficking

Every country in the world is affected by human trafficking either as a point of origin, transit or destination, and Pakistan is not an exception. The UNODC describes human trafficking as “one of the world’s most shameful crimes’’ which robs people of their freedom.

People of all ages and from all backgrounds can become victims of this crime. However, women and children and the vulnerable, such as the poor, migrants, and stateless persons are more susceptible to being trafficked. Human trafficking can take various shapes but it can generally be described as taking three main forms: forced labour (including sex trafficking), forced marriage, and forced organ removal.

According to the 2022 Trafficking in Persons Report by the US Department of State, provincial police in Pakistan identified 21,253 trafficking victims/survivors. These numbers include 16,950 women, 2,918 men, 1,310 boys, and 50 girls. Pakistan was also updated to the ranking of ‘Tier 2’, which means that the government “does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so.” Although this indicates that there is an improvement in the state’s response to trafficking in persons (TIP), more efforts are required. In order to improve the state’s response to TIP, a strong legal framework must be adopted and implemented.

The Protocol to Prevent, Suppress and Punish Trafficking in Persons (‘the Protocol’) was adopted by the United Nations (UN) in November 2000 as part of the UN Convention against Transnational Organized Crime (UNTOC). The Protocol is the first global legally binding instrument with an agreed definition on TIP. Even though Pakistan signed the UNTOC in December 2000 and ratified it in January 2010, the country has not yet signed or ratified the Protocol. Nevertheless, elements of the Protocol have been introduced into the domestic law of Pakistan.

In June 2018, the parliament of Pakistan passed the Prevention of Trafficking in Persons Act 2018 (PTPA). The definition of TIP under Section 3 of the PTPA borrows elements from Article 3 of the Protocol but lacks the essential components of the definition. For example, the definition under the Protocol explicitly mentions “…sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”. The definition also explicitly explains that TIP can include “the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”.

These essential components are missing from the definition of TIP under the PTPA, which simply defines TIP as: “Any person who recruits, harbours, transports, provides or obtains another person, or attempts to do so, for compelled labour or commercial sex acts through the use of force, fraud or coercion, commits an offence of trafficking in persons…”.

Section 4 of the PTPA stipulates ‘aggravating circumstances’ while Section 9 makes the offence of TIP cognizable and non-bailable. Section 11 of the PTPA provides for the safety of victims and witnesses by providing them with adequate protection, relocating them, and limiting the disclosure of their names and addresses. Furthermore, Section 12 provides for the protection of witnesses and victims by the court by granting the court the powers to conduct the proceedings in-camera, permitting the use of screens and video-link for their evidence, and sealing/restricting records of court proceedings.

In 2020, the federal government framed rules in exercise of the powers conferred under section 15 of the PTPA. These are titled ‘the Prevention of Trafficking in Persons Rules 2020’ (PTPA Rules). While the PTPA is less than five pages, comparatively the PTPA rules span over 58 pages. They extend the survivor-centric mechanisms by providing ‘guiding principles for identification of victims’ (Rule 4), ‘medical examination of the victim’ (Rule 5), ‘Special treatment of victims under 18 years of age’ (Rule 8), ‘Protective measures for victims’ (Rule 10), ‘Protection of information regarding victims and witnesses’ (Rule 11). These rules will certainly pave the way for a multi-coordinated and survivor-centric approach for providing access to justice and ensuring rehabilitation of the victims/ survivors of human trafficking. However, the real task is to ensure the implementation of the rules.

The punishment prescribed under the PTPA includes up to seven years imprisonment, a fine of up to one million rupees, or both, for trafficking crimes involving an adult male victim and penalties of up to 10 years imprisonment and a fine of up to one million rupees for those involving adult female or child victims. The punishments prescribed under the Pakistan Penal Code (PPC) are more stringent. Section 371A titled ‘Selling person for purposes of prostitution’ and 371B titled ‘Buying person for purposes of prostitution’ of the PPC prescribe penalties of up to twenty-five years imprisonment and fines.

According to the 2022 Trafficking in Persons Report by the US Department of State, across Pakistan, 498 trafficking cases were investigated under the PTPA (130 for sex trafficking and 368 for forced labor) while only 282 individuals were prosecuted for trafficking under the PTPA (39 for sex trafficking and 243 for forced labour). Throughout this period, no convictions were recorded under the PTPA. Comparatively, under the provisions related to TIP in the PPC, 1,831 cases were investigated, of these, 1,254 were prosecuted and 542 convictions were recorded. Nevertheless, information regarding which provisions of the PPC were used is missing, resulting in the possibility that some cases contained elements inconsistent with the international definition of trafficking.

It can be inferred from the above that despite the passage of special legislation and rules regarding TIP, they are rarely implemented. As a result, the survivor-centric mechanisms specified under the PTPA are not applied. In order to provide an improved response to TIP, the government should continue to train law-enforcement officials on implementing the PTPA and the rules framed under it in 2020. Moreover, specialized prosecutors and judges should be designated for trafficking cases. Further, a national hotline to report TIP crimes should be established to provide the victims/survivors assistance and referral. Lastly, Pakistan should accede to the 2000 UN TIP Protocol. A global challenge like human trafficking needs to be eliminated with a coordinated global response.

The writer is a barrister. She tweets @RidaT95 and can be reached at:

ridaatahir@gmail.com

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