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Honour killing – a legal perspective

Opinion

August 5, 2016

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On July 15, Pakistani social media celebrity Fouzia Azeem, better known as Qandeel Baloch, was strangled to death in Multan by her brother Waseem for “bringing disrepute to… [their] family honour”.

Derided by many for her allegedly ‘immoral’ actions, Qandeel is now just one more hapless victim in the long line of Pakistani women who have been killed in the name of honour over the years.

According to the annual report of the Human Rights Commission, 1096 people died in honour-related incidents in 2015 alone, 1008 of them women. The attackers were often close family members of the victims. These numbers show a disturbingly sharp increase from the previously reported figures of 1000 deaths in 2014 and 869 in 2013. The reason for this upward trend in honour-killing numbers can be traced to the loopholes that exist within the Pakistani legal system which allow the perpetrators of these crimes to escape punished and encourage others to follow in their path.

In relation to the general offence of Qatl-e-Amd or intentional murder, the Pakistani penal code permits the families of the deceased to pardon their killers under section 309 or accept ‘blood money’ as compensation in place of the prescribed penal sanctions of death or imprisonment under section 310. This is in accordance with the Islamic principles of Qisas and Diyat. Thus, prior to 2004, if the perpetrator of an honour-killing was the heir of the deceased, the law, rather absurdly, permitted the killer to pardon himself under these provisions.

The Criminal Law (Amendment) Act 2004 tried to rectify this irrationality by amending section 305 of the penal code to exclude the accused from the list of people who could pardon the perpetrator. While this was a step in the right direction, it left room for the other relatives of the deceased, and often of the accused as well, to allow the killer to escape with total impunity. This loophole allowed what is essentially a crime against the state to in essence become a private family matter, usually resolved by the men of the family amongst themselves.

The 2004 act tried to deal with this issue by authorising the courts to punish the offenders in such cases, even after they are pardoned by the families of the deceased, on the basis of aggravated circumstances (fisad-fil-arz) under section 311 of the Penal Code.

However, Pakistani courts have historically taken a conservative approach towards this matter with the Lahore High Court holding it to be “obvious that a murder committed on account of ghairat (pride) is not the same as qatl-e-amad pure and simple and the persons found guilty of qatl committed on account of ghairat do deserve concession which must be given to him.” (Ghulam Yasin vs The State). While attitudes may steadily be improving, they do not appear to have reached the point where the discretionary authorisation granted by section 311 will likely be employed often.

As noted by the Supreme Court of Pakistan, the ‘iniquitous and vile’ act of killing in the name of honour violates Article 9 of the constitution which provides that “no person shall be deprived of life…except in accordance with law”. The provisions of the penal code permitting this violation to go unchecked are in violation of Article 8 of the constitution which provides that any law inconsistent with rights such as those provided by Article 9 shall be void to the extent of such inconsistency.

The continuous rise in the number of honour killing cases reveals a more deep-seated issue with the patriarchal nature of Pakistan’s society. It is this that hinders the implementation of what little protection the law currently affords to the victims of such crimes. The courts are often more eager to serve as the moral guardians of a women’s honour rather than on punishing those who violate the sanctity of the law. Policemen working in collusion with the offenders often fail to properly record murders as ‘honour killings’, thus taking them outside the scope of the special provisions created by the 2004 Act.

In addition, many cases remain undocumented due to a lack of a confidential reporting system and the hesitance of families to invite censure upon themselves from a male-dominated and deeply conservative society.

Honour killing cases highlight Pakistan’s failure to discharge its international law obligations. In March 1996, Pakistan ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). By doing so, it undertook to “provide legal protection for women’s rights on an equal basis with men and to guarantee the effective protection of women against discrimination through competent national courts.” (CEDAW, Article 2(c)) It is also obligated to “take appropriate measures to modify social and cultural patterns that discriminate against women”.

Specifically, with regard to honour crimes, in the 2001 United Nations General Assembly Resolution 55/66 member states such as Pakistan have been asked to intensify legislative and social efforts to combat this issue, including establishing support systems such as safe shelter, counselling and legal aid for the potential victims of such crimes, all of which Pakistan has failed to do. In addition, Pakistan is bound by the provisions of the International Covenant on Civil and Political Rights (ICCPR).

The Human Rights Committee has stated that the “commission of so called ‘honour’ crimes which remain unpunished constitutes a serious violation if the ICCPR”, in particular articles 6 (right to life), 14 (the equal rights of men and women before courts and tribunals) and 26 (equal entitlement of men and women to legal protection). Pakistan’s shortcomings will tarnish its international reputation and negatively affect the international community’s faith in its ability to fulfil its promises.

With the untimely death of Qandeel Baloch the issue has returned under national and international spotlights. A surprisingly large section of society has condemned her murder and the daughter of the prime minister, Mariam Nawaz, has promised that an anti-honour killing bill will be put before the National Assembly within weeks.

In the event that the bill is passed, it will remain to be seen how far the new law goes in plugging the loopholes of the current system and providing real justice to victims and their families. Until this is done, many more Qandeels will depart this world before their time and no amount of empty rhetoric will fill the void that they leave behind.

The writers are pursuing a career in legal studies.

Email: [email protected]

[email protected]

 

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