Law and the ‘Weaker’ Sex
The Criminal Law (Amendment) (Offences in the name of or on the pretext of honour) Act 2016, touted as the anti-’honour’ killing law, has been the subject of much debate and discussion — far more than the anti-rape law passed with it. Some have celebrated the passage of this law, saying it is a qualitative leap forward, while others have rejected it outright, maintaining it doesn’t do enough. According to the cynics, the law has only been tweaked, and that too in a manner that doesn’t upset the religious lobby. It is not, they contend, as groundbreaking, as it is being made out to be by some.
The celebrations have mostly come from outside of Pakistan, where the bill has been lauded as a success for human rights and women’s rights. The assumption is that it has resolved all the loopholes that existed in the previous law. At home there has been a more realistic assessment of what the amendments really contribute to the narrative on ‘honour’ killing, and by measuring their efficacy from an operational, legal point of view.
Notwithstanding its limitations, viewed through a socio-political lens, given the prevailing culture and environment -— in which murderers boast about the act of killing and bodies such as the Council of Islamic Ideology refuse to even acknowledge the existence of violence against women in society, while trying to prevent any legislation aimed at empowering them and stopping discriminatory and violent practices against them — the passage of pro-women legislation through consensus by what is perceived as a right-wing, conservative government, is certainly a step forward. How large a step, however, remains moot.
There are different theories about what propelled the government into passing this law now. Some view it as a reaction to the brutal murder of Qandeel Baloch, which made headlines locally and internationally, and Sharmeen Obaid’s Oscar-winning film, The Girl in the River on the topic of ‘honour’ killing. Others connect the timing of its passage to the soon approaching reviews Pakistan has to submit on the International Covenant on Civil and Political Rights and the Universal Periodic Review. The passage of the law is seen as an attempt by the government to look good in the international arena for enacting pro-women legislation, even if this legislation falls short in providing substantive relief.
Women’s rights groups believe the current amendments to the ‘honour’ killing law are reactive, and only seek to address the social narrative rather than substantively change the on-ground situation through legal reform. While there can be no arguing with this contention, even changing the social narrative could culminate in some positive change. Says Anis Haroon, member of the National Commission on Human Rights: “For as far back as you can see, women have been taken as the repositories of culture and honour. [And somehow these seem to have] been embodied in their bodies — which men think are their property.” The new amendments could perhaps at least bring about a change in perception.
What was, for many years, considered a rural or tribal customary practice, ‘honour’ killing, known in the vernacular as karo-kari, emerged — thanks to increasing reportage on the subject — as much an urban evil as a rural one, indicating how entrenched the notion of ‘honour’ being considered synonymous with women’s bodies and their sexual proclivities is in Pakistani society.
In 1999, Samia Imran Sarwar was shot dead in the AGHS legal aid office in Lahore. Her mother was a doctor, her father, the then President of the Peshawar Chamber of Commerce. Samia had divorced her cousin against her parents’ will and remarried of her own choice. So her family hired an assassin, whom her mother accompanied to the AGHS office where her daughter had sought refuge, and he proceeded to shoot her dead in her mother’s presence. Says Afiya Sherbano Zia, an academic and member of the Women’s Action Forum (WAF), “This was a turning point.” It chillingly demonstrated how such killings had no bounds, they weren’t just rooted in tribal backwaters or limited to any particular socio-economic class.
And it was not just the murder, but the reaction to it by those within the legislature that also sent out shockwaves. Haroon recounts how the late Iqbal Haider, then a senator, had moved a resolution in the Senate condemning the murder of Samia Sarwar and the practice of ‘honour’ killing. Not only was his resolution opposed, but some senators remarked that the practice of ‘honour’ killing was a matter of “cultural pride.” Says Haroon, the sentiments and reactions of the feudals in the House were unsurprising, but such statements by the “so-called representatives of the people” — supposedly forward thinking, educated individuals — in Parliament, were shocking.
Given this skewed notion of honour attached to women, and collectively shared by the state and society, so graphically demonstrated by the Samia Sarwar case, the need to address it socially and legally suddenly became a matter of urgency, debate and discussion. Says Zia, there were two streams of thinking within the women’s movement and groups. One group held that ‘honour’ killings must be treated as just any other murder, not separately. They contended that attaching the act of murder to the notion of honour gave it unnecessary respectability. The other view held that there was a need to “expose the falsity of culture” and the notion of honour as attached to women. And in order to “disconnect” the two, the term ‘honour’ needed to be grappled with and countered. A special law, some thought, could do just that. Both streams of thinking and positions found their way into the advocacy and debate on the issue, but it was the latter that made its way into law.
So far, only the tip of the iceberg has been addressed. Says lawyer Reema Omer, “Advocacy around ‘honour’ killings has to date, largely revolved around plugging one loophole — i.e. addressing the forgiveness element. Our law acknowledges that women are being killed, but only says this lacuna has to be addressed.” Referring to the statement of objectives in the Indian law on ‘honour’ killing, Omer says it is more positive in terms of outlining what women are entitled to and how their rights must be upheld. Now, says Omer, there is the need to demand for even more affirmative laws.
Laws can cultivate mindsets and shape society’s attitudes towards crime and punishment. According to lawyer Maliha Zia Lari, at this point the laws are setting standards within Pakistan, and they are change-making in terms of thinking. “It’s a very slow change, but there is a mindset shift,” she says. The change can be gauged by the collective reaction of society to the Samia Sarwar and Qandeel Baloch murders according to Lari. “It is not kosher to say anymore that you support ‘honour’ killings openly as it was before.”
At the same time, there is also the reality of entrenched mindsets within institutions. Says Zia, “We have institutionalised bigotry.” Exceptions aside, the negative social attitudes towards women and the misconceived notion of honour often enter the application of the law, be it at the investigation stage where the police are concerned, or at trial, during which it has been noted that even judges have displayed a clear bias in cases of the perpetrators of ‘honour’ killings, using their discretionary powers to absolve them of responsibility, by allowing compromises. This is attributed as one of the major reasons why — lacunas in the law aside — there have been very few convictions in such cases.
There are many related deep-rooted and complex issues that remain largely unresolved, even with the recent amendments. The bottom line: how substantive are the changes introduced through the recent amendments and what might they achieve practically? There are varying opinions on this subject.
Senator Farhatullah Babar terms the current law as a “compromised” and “watered-down” version of the original that was introduced by Senator Sughra Imam, later moved by him as a private members bill on the expiration of her term as senator. Speaking to Newsline, Senator Babar says: “In the original Imam bill ‘honour’ killing was beyond compoundability: pardon by the family members would just not apply.” He says the version that’s been passed retains ‘honour’ killing as a compoundable offence. “The killer is saved from being hanged now, whereas the initial bill held that he was liable to be hanged. Now, even if all the family members pardon him, he will have to undergo a prison term of 25 years, and there will be no remission. And day and night will be counted as one, not separately. But it is short of a death penalty.”
Under the new law, it appears that while Qisas and Diyat can still be applied in cases of murder for purported honour where the death penalty is awarded, punishment for the crime will not be rescinded. For example, the murderer may or may not be awarded the death sentence, but will get life imprisonment.
Those examining the law through a critical lens, contend it is not as straightforward as that. The criminal process, explains lawyer Asad Jamal, starts with the FIR. Then comes the investigation and framing of a charge. It is then that a case is ready to go to trial during which the evidence is recorded. If after these stages and during the trial, honour as a motive as well as the offence is proven, then the sentencing and conviction stage arrives where the punishment — whether life-imprisonment or death — becomes applicable.
Pointing to the language of the new law, lawyers maintain there are several issues which will give rise to problems that will be encountered in the implementation process.
The law amends Section 299 in Chapter 16 of the Pakistan Penal Code, and inserts a definition for ‘fasad-fil-arz.’ Crimes that fall into this category are acts that have the potential to spread panic, social unrest or are abhorrent. One part of the newly added definition of fasad-fil-arz now includes the phrase: “offence committed in the name of or on the pretext of honour.” Amendments to Sections 302(a), 302(c), 309 and 310 — which deal with punishment for qatl-i-amd (murder), waiver of Qisas and compounding of Qisas — require that offences which “attract the principle of fasad-fil-arz,” be treated differently than regular offences, and subject them to the punishment stipulated under Section 311: life-imprisonment or the death penalty.
While the law recognises honour as a motive for crimes — which actually even the 2005 amendment did — it now creates a separate category for them, by definition and through the procedures that apply. However, lawyers point out that the law does not define what ‘honour’ is and thereby what would fall into the category of ‘honour-based’ crimes. Activists point out, at the base of most domestic disputes or acts of violence, are underlying notions of honour, even if the stated motive is not. And since it is problematic to define what constitutes ‘honour,’ or thereby an ‘honour’ crime, it is difficult to prosecute it as such.
Rejecting the law in totality and terming it a “smokescreen,” Dr Farzana Bari, an activist, says, “The major problem with the law is who will establish it is an ‘honour’ killing. It has been left to the discretion of the judge. If a man says in front of the judge, ‘I haven’t killed the woman for honour, but for other reasons,’ then the murder of that woman will be considered qatl-i-amd not fasad-fil-arz. Under Qisas and Diyat, for qatl-i-amd, the family can forgive. So the man will keep on killing and the family will keep on forgiving.”
For the provisions of the law to apply and the offence to be categorised under this law, first the perpetrator would have to either confess the act was motivated by honour, or the prosecution would have to prove the motive of ‘honour.’ In the absence of such an admission or proof, even if it is an ‘honour’ killing, legally it would be treated as an ordinary murder and would not fall under the category of fasad-fil-arz, which under Section 311 now carries the punishment of life imprisonment.
Says Lari, “Many times the police, during their investigation will say, ‘we know who did it, and why.’” According to Jamal, even if a murder is not owned as a killing on the pretext of honour, the police investigation and evidence gathering can establish that it was. “It’s only that the police must work harder,” he says.
There are also varying legal opinions on when Section 311 may be invoked and the standards that need to be met, as well as whether this is a mandatory punishment or if it is left to the judge’s discretion. The language of Section 311 reads: “the court may…punish an offender…with death or imprisonment for life or imprisonment of either description.” Says Omer, “The word ‘may,’ makes it ambiguous. This could have been rectified by replacing the word ‘may’ with ‘shall.’” Jamal says there is only some jurisprudence on Section 311, but is flawed for the most part. Therefore, says Omer, only once the law is applied and interpreted will it become clearer.
The 2005 amendment prescribed a minimum 10-year punishment for ‘honour’ killing while the current amendment changes the sentence to life-imprisonment. In effect, what the amendment to Section 311 really does is raise the punishment while leaving room for discretion. Says Lari, simply making punishments harsher will not deter the crime. In fact, when the punishment is increased, so is the burden of proof. It becomes even more unlikely in cases where the penalty is either life or death, that there will be a conviction, as irrefutable evidence is required. Omer contends this might actually end up becoming a deterrent for judges instead.
To test the utility of the changes made to the law, first the police would have to frame the charge under the relevant provisions and the judges would have to rely on the newly amended sections for trial and conviction. Jamal points out that many cases never make it to the trial stage. In most cases, the police, in their report to the judge — submit that the family’s non-accused blood relatives have reached a compromise with the perpetrator of the crime. The judges accept the compromise and dispose off the matter.
Says Lari: “We keep putting pressure on parliament, we don’t talk about the job of the Supreme Court — we need to focus our advocacy and lobbying with the SC. The SC should be taking a serious view of this and give a direction or policy saying ‘do not accept a compromise on ‘honour’ killing.”
Says Jamal, “The problem is that Section 345 of the Criminal Procedure Code (CrPC) allows compounding of offences including all murders or ‘honour’ killings with the permission of the court ‘before which any prosecution for such offence is pending.’ This is taken to mean that parties can reach a compromise at any stage of the case proceedings and the compromise may be submitted to the court for approval. The courts do not use their discretion under Section 345 to stall any such compromise and go ahead with the trial to ultimately convict on the basis of available evidence and sentence the murderers of sisters, mothers and wives under Section 302(b) of the PPC.” Section 302(b) — which the current amendments do not apply to — falls under the parallel, secular framework of ta’zir (which means punishment other than the death penalty), while the recently amended part of the law has to do with provisions pertaining to Islamic law.
The debate on what the current changes to the law do or don’t do have centred around compoundability and forgiveness, raising the question as to whether this can be resolved while Qisas and Diyat remain on the books, and if we continue to oscillate between two parallel frameworks of justice, selectively applying their provisions.
Justice (retd) Majida Razvi, chairperson of the Sindh Human Rights Commission, points out the distortion in the way the Qisas and Diyat laws have been interpreted and are being applied. Elaborating on the concept of Qisas and Diyat, she says the underlying principle is to save a human life in the event of a death penalty, not to waive punishment. As far as the compounding of an offence under Qisas and Diyat is concerned, according to Justice Razvi, the procedure under Islamic law is as follows: “The case will proceed, the person will be charged with the offence, and if the offence is proven and a person is given capital punishment, then the law of Qisas becomes applicable. The procedure has been played around with, and what they’ve done is allowed compoundability at any stage of the case while it should only apply in the event of a death penalty. It is due to this flaw that no one is charged with a crime.”
According to Jamal, “For Qisas to become applicable, there are certain conditions. Foremost of them, is the Islamic standard of proof, called tazkiyah-tul-shahood.” He elaborates: “Under that you require truthful witnesses. So first the judge has to decide, based on the Islamic standards of tazkiyah-tul-shahood, whether the witnesses, police and forensic experts, fulfil that criteria. This does not happen. It is such a difficult standard that it is next to impossible to fulfil. In effect, Qisas then does not become applicable until this is done — which is once the case gets to the trial stage where the investigation has been completed and a charge framed. For Qisas to be applicable, the Islamic standard of proof has to be brought on record, which I have never heard of — or seen to happen, and I don’t think it will ever happen in the foreseeable future.”
A long-standing demand by WAF has been the repeal of Qisas and Diyat — and all the laws introduced by Zia. And for murder to be a non-compoundable offence — considered a crime against the state — not to be left open to forgiveness or compromise. “Under Qisas and Diyat, the state is not a party,” says Justice Razvi. “This is wrong. In all criminal cases, the state must be a party. An ‘honour’ killing is a crime against society, and therefore the state is responsible.”
Uzma Noorani, a member of HRCP and WAF, recounts how prior to Qisas and Diyat, murder was a crime against the state. Says Noorani, there was a sense of outrage when the act was committed. Now, however, murder is something that is considered a matter to be settled between private parties. She gives the example of the Anti-terrorism Act (ATA), which delinks Qisas and Diyat — something that could easily have been done with this law to ensure the offence was a non-compoundable one. Senator Babar concurs. According to him, if non-compoundability for murder was an ideological stance, then the religious parties would not have accepted it in the ATA either, but they did.
Interestingly, when the original Imam bill was passed by the Senate, in which the offence of ‘honour’ killing was classified as a non-compoundable crime, it was endorsed by the JUI-F. According to Senator Babar, members of the JUI-F, including their deputy chairman, were present in full strength. However, when the bill arrived in the National Assembly, matters took a different turn. Questioning their change in stance, Senator Babar says the response from their side was that “on extended reconsideration,” they didn’t want to make so many murders non-compoundable.
Senator Babar says the PML-N wanted the original Sughra Imam bill to be passed, but due to opposition from the JUI and other religious parties, they accepted the latter version. “I think political considerations weighed in because that was the time when the Panama leaks were full blown.” And legislators from the PPP, who had raised objections during the joint session of parliament when the law was being passed, say they agreed to its passage as they did not want to stop any piece of legislation that would even marginally benefit women.
Inevitably, all roads lead back to Qisas and Diyat, affirmative versus reactive legislation, criminal justice system reform, narrative-building and a change in mindset. All of which needs to be done simultaneously to address what is clearly a social and legal problem.
Since the law is now in place, it needs to be tested through the system. Its application and interpretation in courts will be the judge of its efficacy — or lack of — and changes can always be introduced accordingly. Efforts are also underway to chip away at the institutionalised attitudes towards women by sensitisation of the police and judiciary, through the introduction of gender and human rights courses in their training and curriculum.
What is required is also a shift in the way the legislative process works, which is reactive rather than proactive. The Senate Human Rights Committee is already planning to revisit the Qisas and Diyat law. But just like substantive reform cannot be achieved through piecemeal legislation, similarly, criminal justice system reform cannot be ignored either. According to Lari, it is high time the Pakistan Penal Code, Criminal Procedure Code and Qanoon-e-Shahadat were all revisited.
Only through a combination of social and legal advocacy, and the combined efforts of activists, lawyers and legislators, can more meaningful change be achieved.
Farieha Aziz is a Karachi-based journalist and teacher. She joined Newsline in 2007, rising to assistant editor. Farieha was awarded the APNS award for Best Investigative Report (Business/Economic) for the year 2007-2008. She is a co-founder and Director at Bolo Bhi, an advocacy forum of Digital Rights.