Saturday August 20, 2022

The dishonour of compromise

February 28, 2016

It is ironic how one has to describe a crime of the worst kind with a word like ‘honour’. Thus when Prime Minister Nawaz Sharif says “there’s no honour in honour killing”, it shows a way forward to the multitude of women who are subject to retrogressive traditions and customs that keep them slaves to a misogynistic society. The prime minister has expressed his desire to make appropriate changes to the relevant law.

It took the nomination of a Pakistani documentary film to the Academy Awards for our representatives to wake up to a tragedy that is a daily occurrence in this country.

According to the statistics available with the Punjab Police, the numbers of ‘honour killings’ for the province of Punjab 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. There could be many more.

A news report based on an interview with a high-ranking policymaker in Islamabad appeared in this paper a few days ago. The content of the report was less than reassuring. The policymaker was quoted as saying that in the case of honour killings, the Pakistan Penal Code (PPC) was being amended to treat the crime of honour killing as ‘Fasad Fil Arz’. This, according to the policymaker, ‘is being done to authorise the court whether to accept or reject a compromise between the complainant and the killer who in most cases of honour killings are blood relations’.

This is a well-meaning but flawed solution. Besides, the law already provides this as a result of an amendment which came into force in January 2005.

So what’s the problem? Consider.

Section 311 of the PPC already declares murder committed in the name of ‘honour’ as Fasad Fil Arz and it also provides that the minimum punishment in such cases shall not be less than ten years of imprisonment. Further, section 338-E provides that any waiver or compounding of such an offence is subject to conditions imposed by the court but with the consent of parties. This amendment was made possible because waiver and compounding are provided in the law where qisas is applicable. And a compromise reached between parties may still be discarded and punishment may be awarded as taazir. A minimum of ten years of imprisonment is prescribed as the secular punishment for ‘honour’ killing. So what went wrong? The problem is more systemic and much deeper than is generally acknowledged – even though it is understood by some.

In 1989, the Shariat Appellate Bench of the Supreme Court in the Gul Hassan case (1989), an appeal filed by the federal government against an earlier decision of the Federal Shariat Court, declared the then existing punishments and other aspects in the chapter on offences relating to the human body un-Islamic and made eight specific directions in the way the criminal law must be changed to make it Islamic.

As a consequence, the option, among other things, of compounding (compromise as a result of payment of diyat – blood money – for the offence of killing or arsh etc in the case of bodily hurt) and waiver (pardon accepted for the offence of killing or bodily hurt) were introduced in the PPC. Since these options were left entirely – even though in cases of qisas only– to the discretion of the legal heirs of the victims, it has had serious adverse impact on the whole of the criminal justice system.

This has been called the ‘privatisation of justice’, which has impacted even where the court has the discretion to impose secular punishment prescribed in the statute as taazir. It isn’t that compromise between parties was not allowed for certain offences before 1989. But with the Islamic sanction assigned to it, each instance of every offence against human body – including killing, and the so-called ‘honour’ crimes – is now considered to be de facto pardonable or compoundable.

The courts as well as prosecutors are happy to play the role of the post office as they do not have to go through the burdensome challenge of conducting trials. The police are readily inclined to submit documentary evidence of compromise reached between the parties even before the trial begins. This allows them, among other things, to save time and other resources to be spent on investigation, and to act as mediators between the parties. This has practically paved the way for more corruption.

Thus, one sees compromises being reached and money exchanging hands even in rape cases where the law prohibits compromise. This is empowerment of the evil kind. The victims’ relatives are either wary of the system as no justice is expected, at least not speedily, and/or are under pressure from their biradari/clan and their community elders. Once the parties submit a compromise, it works as an automatic trigger.

In the statistics mentioned above, over 90 percent of the cases are estimated to have ended in some kind of compromise – with the perpetrators let off the hook. This is the ‘spill-over effect’ of qisas and diyat laws; and it has literally crippled the system. It is for this reason that the trial courts do not use the existing discretion to award minimum punishment of ten years in the ‘honour’ killings of women as well as men.

If PM Nawaz Sharif is really interested in the welfare of the vulnerable women and men and children of this country, he should make sure that the appropriate kind of amendments are made to the penal code.

Due to the absence of comprehensive, reliable data we do not know the exact scale of the problem of honour killings. Some civil society organisations that monitor honour killings put the numbers at 700-1000 per year for the period 2011-15 for the whole of Pakistan. The actual numbers are estimated to be double – in the range of 1500-2000. Either way, this is a big 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 but an overwhelming majority in the range of 70-80 per cent or more, of the victims are women.

Every possible step must be taken to eliminate this social evil. Legislation is one of the many important aspects to look into and perhaps is the easiest one. Let’s start with that. Eliminate the discretion currently vested with the court and make all honour crimes mandatorily punishable with no possibility of compromise between the parties.

The writer is a lawyer engaged in drafting a comprehensive set of amendments to curb crimes
committed in the name of ‘honour’. Twitter: @LegalPolitical