Counter Trafficking Legislation

June 29, 2011 Raahnuma

PAKISTAN PROSPECTIVE

SEQUENCE

  • Laws dealing with illegal immigration, smuggling of migrants and trafficking in persons
  • Prevention and Control of Human Trafficking Ordinance (P&CHTO 2002)
  • Trafficked persons are victims, not criminals
  • Anti Trafficking Measures by FIA:
  1. ATUs
  2. Action against Traffickers/Smugglers
  3. Prosecutions
  • Areas of concern
  • Questions

Anti Human Trafficking Laws:

FIA Immigration wing is responsible to main 21 exit/entry points all over the country (Airports 10, Seaports 04 and Land Route 07) in order to prevent illegal immigration, unlawful emigration & human trafficking. There are 11 AHT Circles dealing with investigation and prosecution of defences under different laws:

  • Prevention & Control of Human Trafficking Ordinance, 2002
  • Emigration Ordinance, 1979
  • Passport Act, 1974
  • Exit from Pakistan (Control) Ordinance, 1981
  • Foreigners Act, 1946
  • Relevant sections of PPC dealing with forgery in identity documents, cheating, impersonation, etc.

Illegal Immigration:

  • Illegal entry of a foreigner into Pakistan constitutes an offence of illegal immigration punishable under the Foreigners Act, 1946.
  • If the transportation for such illegal entry into Pakistan is arranged by another person for profit with consent, it may be considered as “smuggling” but if found as a result of deception, coercion or fraud for exploitation, may be termed as “trafficking”.

EMIGRATION ORDINANCE

  • HS – heinous crime having national and transnational ramification.
  • EO, 1979 deals with HS from Pakistan
  • Regulate departure of citizens of Pakistan
  • Unlawful emigration – 05 years [Sec 17]
  • Subsequent Offence – 07 [Sec 17-2(ii)]
  • Advertisement for recruitment, without permission – 05 years [Sec 17-4]
  • Fraudulently inducing to emigrate – 14 years [Sec 18]

DEFINITION OF HUMAN TRAFFICKING

UN General Assembly:

“The illicit and clandestine movement of persons across national borders with the end goal of forcing women, girls and children into sexually oppressive and exploitative situations for profit for recruiters, traffickers and crime syndicate, as well as other illegal activities related to trafficking such as forced domestic labour, false marriages, clandestine employment and false adoption.”

UN Protocol against trafficking, 2000:

“Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of person by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments of benefits to achieve the consent of a person having control over another person for the purpose of exploitation:

UN Trafficking Protocol – Article 3

ACTIVITIES (any of these) MEANS/METHOD (any of these) PURPOSE/INTENTION (any of these)
Recruitment Threat For the purpose of exploitation*
Transportation Force Prostitution of others
Transfer Other forms of coercion Other forms of sexual exploitation
Harbouring Abduction Forced labour or services
Receipts Fraud Slavery or practices similar to slavery
… of persons Deception Servitude
Abuse of:

  • Power
  • Position of vulnerability
 Removal of organs
Giving/receiving of payments or benefits
The consent of a victim of trafficking shall be irrelevant where any of the means set forth above have been used. Consent is irrelevant in case of children even if this does not involve any of the means set forth above.

SAARC Convention:

“All acts involved in the recruitment, transportation, forced movements and/or selling & buying of women and children within and/or across borders by fraudulent means, deception, coercion, direct and/or indirect threats, abuse of authority, for the purpose of placing a women and/or child against her will or without her consent is exploitative and abusive situation such as forced prostitution, marriage, bonded labour, begging, organ trade, etc.”

Human Trafficking

By observing the constitutional provision against Trafficking in persons (Article 11) and supplementing UN Convention against Transnational Organized Crime, Pakistan has taken very positive steps in the field of legislation for prevention of Human Trafficking and protection of Victim.

Prevention & Control of Human Trafficking Ordinance (PCHTO), 2002

A very comprehensive law, mostly covering all possible forms of human trafficking, specially women and children with respect to “Mode” and Objectives”.

Carries many new definitions like inhuman sports, organized criminal groups and victim of crime, etc and creates new criminal offenses.

Definition of Trafficking

  • Means obtaining, securing, selling, purchasing, recruiting, detaining, harbouring or receiving a person.
  • By use of coercion (including deception/fraud), kidnapping, abduction, or by giving or receiving any payment or benefit for such person’s subsequent transfer out of or into Pakistan.
  • For the purposes of attaining any benefit or exploitative entertainment (including inhuman sports), slavery or forced labour or adoption in and out of Pakistan [Section 2 (ii)].

Activities:

  1. Recruiting
  2. Transportation
  3. Harbouring
  4. Receiving

Methods:

  1. Deception
  2. Coercion
  3. Kidnapping
  4. Payments

Objective:

Trafficking into or out of Pakistan

Purpose:

  1. Forced Labour
  2. Exploitation
  3. Slavery
  4. Adoption

Punishments:

The human trafficking shall be punished as under:

  • Plans human trafficking into and out of Pakistan – 05 years & fine, or
  • Execute the plan – 07 years & fine
  • If kidnapping, abduction or attempt thereof is involved, 10 years with fine. [Section 3 (i)]
  • Whoever provides, obtains or employs a trafficked person by coercion, etc – 07 years with fine.
  • If kidnapping, abduction or attempt thereof is involved – 10 years with fine. [Section 3 (ii)]
  • Whoever involves in trafficking of child or a woman shall be liable for imprisonment which may extend to – 10 years with fine.
  • If kidnapping, abduction or attempt thereof is involved – 14 years with fine. [Section 3 (iii)]
  • Whoever takes, confiscates, possesses, conceals, removes or destroys any documents relating to human trafficking, or prevent/restrict or attempts to prevent/restrict, without lawful authority, a person’s liberty to move or travel – imprisonment 07 years with fine. [Section 3 (iv)]
  • Offense of trafficking committed by Organized Criminal Group: Each member shall be liable for imprisonment not less than 10 years and may extend to 14 years, if victim is trafficked for exploitative entertainment. [Section 4]
  • For repetition of offenses, the term of imprisonment may extend to 14 years with fine. [Section 5]

Nature of Offenses:

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Investigation:

  • Investigation by the agency specially authorized by the Federal Government. [Section 9]

(Placed on the schedule of FIA act on 24-10-2002)

Cognizance of Offenses:

  • Magistrate 1st Class
  • The Court shall be empowered to pass any sentence provided under the Ordinance. [Section 10]

Special Rules of Evidence:

  • Implicit or explicit consent of the victim of crime is immaterial. [Section 20 (h)]
  • Payment of any remuneration in lieu of services or labour of the victim shall not be treated as mitigating circumstances while awarding the punishment. [Second Provision of Section 3 (ii)]
  • The plea, if any, taken by biological parent of the child shall not prejudice the commission of offense under clause (iii) of Section 3 of the Ordinance.

Effects of the Ordinance on other laws:

  • The provisions of this Ordinance are in addition to and not in derogation of any other law.

Victim Assistance, Protection and Rehabilitation:

  • Extension of stay in Pakistan for the period deemed necessary by the court.
  • Payment of compensation and expenses.
  • Arrangements for shelter, food and medical treatment by the government especially for child or destitute woman. [Section 6]

Victim Assistance, Protection and Rehabilitation (Rules 2004):

  • The victim shall be produced before the court for recording his/her voluntary statement (u/s 164 Cr.PC) except when victim is not in position to get his/er statement recorded. [Rule 3 (1)]
  • Free legal aid. [Rule 6]
  • During trial, the statement of the victim shall be recorded at the earliest to save him/her from further embarrassment. [Rule 7]
  • Safe repatriation.
  • If repatriation is not possible, the victim would be allowed to get work permit. [Rule 7]
  • Legal entitlement for NGOs to participate in all activities beneficial for the victim.

Internal Trafficking:

The following offenses of Pakistan Penal Code deal with internal trafficking, being dealt with by the Provincial Police:

  • Trafficking by way of kidnapping or abduction. [Section 359-366]
  • [Section 366-A]
  • [Section 366-B]
  • Buying or disposing of any person as a slave. [Section 370]
  • Habitual dealing in slaves [Section 371]
  • Selling minor for purposes of prostitution, etc [Section 372]
  • Buying minor for purposes of prostitution, etc [Section 373]
  • Unlawful compulsory labour. [Section 374]

Difference between Trafficking and Smuggling:

Trafficking:

  • Continuous Process
  • No consent or consent immaterial
  • Internal/across the border (PACHTO – only external)
  • Deception, coercion, exploitation

Smuggling:

  • Ends on reaching destination
  • Migrants’ consent
  • Always transnational
  • Not necessary

Prosecution:

BREAK UP 2006 2007 2008
B.F. 5186 7027 8206
Added 4240 7277 6222
Total 9426 14304 14428
Convicted 1448 5022 4161
Acquitted 262 216 205
Cons. To R.R 689 860 741
Pending 7027 8206 9321
% of Conviction 85.00% 96.00% 95.00%

INTERNATIONAL COOPERATION

Adopted by Pakistan:

  • Convention for the Suppression of the traffic in Women of full Age
  • International Convention for the Suppression of White Slave Traffic
  • International Convention for the Suppression of the Traffic in Women and children

Signed by Pakistan:

  • UN Convention against Transnational Organized Crime (Palermo, Italy – December 2000)
  • SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (Colombo, Sri-Lanka – 2002)
  • SAARC Convention on Mutual Assistance in Criminal Matters (Colombo, Sri-Lanka – 2nd August 2008)

Supplementing Protocol (TOC):

  • Protocol to Prevent, Suppress and Punish Trafficking in persons especially Women and Children
  • Protocol against the Smuggling of Migrants by Land, Sea and Air.

MOU Letter of Intent:

  • Pakistan and Kingdom of Thailand – 2005
  • Pakistan and UK – 2006
  • Pakistan and Singapore – 2007
  • FIA and Australian Federal Police – Under process

INTERNATIONAL LIAISON

Bilateral Groups:

  • Pakistan – Oman
  • Pakistan – UK

Trilateral Groups:

  • Pakistan – Iran – Turkey
  • Pakistan – Turkey – Greece

Quadrilateral Groups:

  • Pakistan – Greece – Turkey – Iran

INTERNATIONAL LETTERS ROGATORY

  • A request by one Judicial Authority to the Judicial Authority of another country for assistance in matters sub judice before it or under investigation within its territorial jurisdiction

*BY THE SUPERIOR COURTS

  • Direction issued to a bank for delivery of record on the request of Metropolitan Police UK – PLJ 2000, Lahore 1884

EXAMINATION OF WITNESS COMMISSION

  • Section 503 (2-B) Cr.PC
  • There are eleven countries which have been declared as “Reciprocating Territories” within the meaning of section 503(2B) Cr.PC. dealing with examination of witnesses through Commissions.

LEGAL POSITION UNDER DOMESTIC LAWS

Service of Summons:

  • Section 29 CPC
  • There are 21 countries with which we have reciprocal agreements (13 pre-independence adopted, 8 signed) for service of summons u/s 28 of the Civil Procedure Code

Execution of Degree/Judgments:

  • Section 44-A, CPC

With 10 countries we have reciprocal arrangements for execution of Decrees/Judgments

Maintenance, Order & Enforcement Act, 1921:

Under Section 3, we have adopted pre-independence Agreements with 21 countries whereas with 06 countries, the Government of Pakistan has signed the Agreements (total 27 countries)

Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters:

Haque Convention 1965 acceded by Pakistan on 13th October 1988. The Solicitor Ministry of Law, Justice and Human Rights Division were notified as Central Authority for processing such requests.

ENACTMENTS HAVING TRANSNATIONAL APPLICATION

  • Extradition Act 1972 – Treaty with 29 Countries
  • Control of Narcotic Substances Act, 1997
  • NAB Ordinance 1999
  • Anti Money Laundering Ordinance 2007
  • Prevention of Electronic Crime Ordinance 2008
  • IPR Laws

AREAS OF CONCERN

  • No separate law to deal with smuggling of migrants
  • Inadequate punishment – EO, 1979
  • Amendment in PACHTO
  • Issue of internal trafficking
  • Trafficking and smuggling – not extraditable offenses
  • Trafficking/smuggling to be predicate offenses of ML
  • Ratification of Protocols dealing with trafficking in persons and smuggling of migrants
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