October Issue 2016

By | Law | Published 3 years ago

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In the last 10 years or so, there have been some changes made to Pakistan’s criminal law regime in an attempt to make it more “pro-women.” A few of the changes are said to have had a dramatic impact on the status of women in the criminal justice system, such as the amendments made to the Hudood Ordinances which were introduced during Gen. Zia-ul-Haq’s reign. Others do not seem to have achieved their desired objective.

The latter category includes provisions that were made part of the criminal law in 2005 to curb ‘honour’ killings. These changes have been introduced incrementally, as there is a lack of confidence and political will both in the government circles and among the parliamentarians based on fear, real and perceived, of right-wing political elements, both within and outside parliament.

Two prominent trends can easily be observed in the pro-women laws/amendments introduced in the last decade or so. Some of these laws/amendments aim at curbing the adverse effects either of anti-women traditions such as marriage to the Quran, or the recently heightened practice of acid attacks on women, while others try to dilute the adverse impact of inherently anti-women legislation introduced, ostensibly in the garb of religious tenets, during General Zia-ul-Haq’s Islamisation drive. These characteristics overlap at the interface of religion and tradition, the latter often referred to as ‘mindset.’ These trends can also be seen in the legislative proposals currently pending in parliament or lying with the government. The proposals to change the law to address killings in the name of ‘honour,’ are among the most significant.

A spate of high-profile murders of women, including that of Qandeel Baloch, on the pretext of ‘honour’ in recent months has led the government to move toward introducing some changes to the existing framework, which, it is presumed by the drafters, could lead to some measure of deterrence against such crimes.

The need to change the law to curb crimes of ‘honour’, especially killings on the pretext of ‘honour’, arose as a result of the Islamisation of laws relating to offences against the human body. One of the first things on the agenda of the Council of Islamic Ideology (CII), newly constituted by Zia in 1977, was to propose changes to incorporate the system of qisas (retributive justice or retaliation in kind), and diyat (blood money) in the Pakistan Penal Code (PPC).

Pakistan introduced qisas and diyat in 1990 as the Criminal Law (Second Amendment) Ordinance, after the Shariat Appellate Bench of the Supreme Court of Pakistan declared that the lack of qisas and diyat were repugnant to the injunctions of Islam as laid down by the Quran and Sunnah. The Pakistani parliament enacted the law of qisas and diyat as the criminal Law (Amendment) Act, 1997.

As a consequence, a new Islamic legal framework (parallel to the previously existing secular process) was incorporated in the criminal law. The option, among other things, of compounding (compromise between parties as a result of payment of diyat, or blood money etc. for the offence of killing or injury) and waiver (pardon accepted for the offence of killing) were introduced as Islamic provisions in the PPC. This framework provided options of reconciliation or compromise between the victim or his/her legal heirs and the offender. This new legal framework would become applicable, for instance, where certain conditions for admissibility of proof were met. However, where the prescribed conditions for proof were not met, the secular (ta’azir) framework would be applicable.

Moreover, murder, which was not a compoundable (subject to compromise) offence under the secular law before 1990, was also made compoundable. Private parties, the victim or the heirs and the offender could enter an out-of-court-settlement and render prosecution unnecessary. Gradually, the role of the state in prosecuting criminal cases was marginalised. These changes have had a serious adverse impact on the entire criminal justice system. This has been termed the ‘privatisation of justice’, and has impacted even those cases where the court has the discretion to impose secular punishment prescribed in the statute as ta’azir. But with the Islamic sanction assigned to the system, every instance of offence against the human body — including killing, and the so-called ‘honour’ crimes — is now de facto considered to be pardonable or compoundable.

The impact of these laws on the status of women remains unclear, but gradually the veil has been lifted on what is often referred to as ‘honour’ crimes. According to the statistics available with the Punjab Police, the number of registered cases of ‘honour killings’ for the province in the last five years — from 2011 to 2015 — are 256, 184, 275, 312 and 242 respectively. These are cases that somehow found their way to the police stations and were identified as ‘honour’ killings.

Due to the absence of comprehensive, reliable data we do not know the exact scale of the problem. Some civil society organisations who monitor ‘honour’ killings put the numbers at 800-1000 per year for the period 2011-15 for the whole of Pakistan. The actual numbers are estimated to be much higher — up to 1500 on the conservative side. And of the cases that did get registered, probably over 90 per cent ended in some kind of compromise — with the perpetrators let off the hook. Either way, this is a major social problem, not just in terms of the number of human beings killed but also in terms of its social implications. The victims include men as well, but an overwhelming majority (70-80 per cent or more) of the victims are women. The impact of such killings in social terms is not studied but it is not difficult to imagine that it has to be immense, especially on how women make their life choices.

Laws reflect the will of the people and the state policy on particular aspects of national life. In cases of ‘honour’ crimes, where the offender is almost invariably a close blood relative of the murdered, the perpetrator is generally let off the hook due to the fact that the rest of the relatives decide to forgive him (or her) or reach a compromise with the aggrieved party — an eventuality for which the law provides room as described above. This is why there is an urgent need to change the law relating to crimes of ‘honour,’ so that the message is clear: killers of wives, sisters and daughters cannot get away with murder.

The current proposed draft bill, approved by the government, is different from an earlier bill which was introduced by the former PPP Senator, Sughra Imam, and passed by the Senate in March 2015. Both suffer from inadequacies.

A similar effort was initiated in 2004 by the then opposition in the parliament led by the PPP. That initiative led to the passing of the Criminal Law Amendment Act (No. 1 of 2005), which was said to be a watered-down version of the bill introduced by Ms. Sherry Rehman, then a member of the National Assembly and currently a member of the Senate. The main criticism of the 2005 Amendment Act was that it left the possibility of waiver and compounding of the offence (compromise between the private parties) of crimes of ‘honour’ open. This was either due to ambiguity in how it was drafted, especially the amendment to section 311, or otherwise where it clearly left the crimes of ‘honour,’ including murder in the name of ‘honour,’ compoundable under section 345.

In either case, private parties, i.e. legal heirs of the victim in case of murder or the victim herself in case of attempted murder or hurt, could reach an out-of-court settlement/compromise leading to withdrawal of the case one way or the other. However, it could be argued that in the case where section 311 PPC (post-2005 Amendment) became applicable, the perpetrator of ‘honour’ killing must be awarded a minimum jail sentence of 10 years. This has happened in a few cases decided by the Balochistan High Court.

Another criticism of the 2005 Amendment Act was that it didn’t offer a clearer and broader definition of crimes of ‘honour’ and that the definition of fasad-fil-arz included only the offence of murder in the name of ‘honour,’ excluding other offences committed on the pretext of ‘honour.’

The Sughra Imam bill focused on removing the possibility of compromise between private parties in an ‘honour’ killing case (and not all crimes of honour), a crime in which the state would not allow compromise of any kind, neither secular or Islamic. The bill did not touch the questions of broadening the scope of fasad-fil-arz to all crimes of ‘honour’ and the definition of the offence committed in the name of ‘honour’ (section 299 PPC). Currently, the definition is as follows: “ ‘offence committed in the name or on the pretext of honour’ means an offence committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices.”

The current amended form of the bill, sponsored by the government, does two important things. It defines fasad-fil-arz to include all crimes of ‘honour’ but it does so without providing a clearer and broader definition.

It also proposes raising the punishment for ‘honour’ killing from a minimum imprisonment of 10 years to imprisonment for life as ta’azir (secular punishment) in case where qisas is applicable in honour killings but the offender is forgiven by heirs.

Consequently, the punishment of imprisonment for murder in the name of ‘honour’ stands enhanced to imprisonment for life in all circumstances where ta’azir becomes applicable instead of the Islamic punishment of qisas. The death penalty remains a possibility as ta’azir though. However, it is questionable whether ‘imprisonment for life’ should be regarded as the only option, in ‘honour’ killing cases, without an alternate lesser imprisonment for cases where there may be compelling mitigating circumstances, including non-availability of direct evidence.

Further, the current government bill keeps other forms of crimes of ‘honour’ such as all injuries and attempted ‘honour’ killing compoundable, both where qisas becomes applicable and where this is not the case

There’s another issue which is likely to arise in future. In the current framework for proof of crimes committed in the name of ‘honour,’ the motive of ‘honour’ must be proved. This is an exceptional condition as proof of motive is not necessary in ordinary cases. Proving motive is not easy. Proof of the commission of an offence, murder or otherwise, and the intention, per se, to do so is considered to be enough in other cases.

In ‘honour’-related crimes, it must be proved that the offence was committed in the name of ‘honour,’ In complex cases, where the reason/motive is not obvious, the offenders may raise a motive different from that of ‘honour’. This problem will persist unless the provisions relating to qisas and diyat are completely eliminated and the state restores to itself the space ceded on the pretext of Islamisation of criminal law.

The issue of amending the law to provide protection to women from crimes of honour is a complex one. It cannot be done in one stroke, and it may require many minds to wriggle out of the complexity caused by having a parallel legal system.

For example, if the current broader framework of qisas and diyat must stay for the time being, any proposal to amend the law must provide a clearer and broader definition of ‘honour’ crimes to include a range of offences against women. The definition may be phrased in such a way that it is considered by the courts to be inclusive rather than exhaustive.

Ideally, all offences against women, especially all physical injuries, attempted murder, and murders by close relatives should not be allowed to be ‘waived’ and/or ‘compounded’ by close relatives/survivors. The Islamic concept of fasad-fil-arz should be applied to all such crimes which gives courts the power to disregard waiver and compounding on behalf of close relatives or the victim herself.

Further, compounding of offences punishable under taazir (secular punishment) should not be an option and no discretion should be vested with the courts in this respect. The state must prosecute all such crimes and such prosecution must necessarily result in conviction and sentencing instead of compromise between private parties.

The framework of punishments needs to be such that in the absence of compelling evidence, where maximum punishment cannot be awarded, courts have the discretion to award lesser punishments. But such discretion should be narrowly and strictly prescribed so that it may not be used to the disadvantage of the victims who are mostly women.

The current bill is not being made public by the government for fear of a backlash from retrogressive elements within and outside the ruling party, including the CII. The fear is irrational because if the crime of murder in the name of ‘honour’ is declared to be fasad-fil-arz, then it must necessarily be accompanied by a mandatory punishment, which may range from life imprisonment to the death penalty because it would then be within the domain of the secular framework. If the government is serious in liberating women of this country from the fear that afflicts their lives, it must allow an open debate, which will contribute to achieving two things. One, it will help bring to light the problematic impact of changes introduced to the law in the name of Islam; two, it will help it be more widely known how such changes adversely affect women more than men. It will also help develop a culture of critical thinking. And while we continue to learn to deal with, and even shun, the ghosts of our past, a step toward changes in the legislative framework to provide protection to the women of Pakistan may prove to be a milestone in the movement for women’s liberation.

 

The writer is a lawyer.