How not to legislate

Part - I

A controversy has erupted since parliament, in a joint sitting, unanimously passed the Criminal Law Amendment (Offences in the name or on the pretext of honour) Act, 2016 earlier this month, largely over the impact it will have on the prosecution of offences committed in the name of ‘honour’.

Notwithstanding the joy over the passage of the amended law, it is a classic example of how parliaments should not legislate. The fundamental issues have been left unaddressed. At the root of the problem lies a lack of understanding of, and training in, good legislative drafting skills and process. Besides, unlike what some people think, it does not make forgiveness or compromise -- with or without monetary consideration -- impossible.

Let us first try to understand the law. Since 1990, we have had two parallel frameworks of criminal law to deal with offences against the human body, including ‘honour’ crimes. One is the framework of qisas and diyat provisions or the so-called Islamic provisions and the other is the framework of ta’azir or secular provisions.

Essentially, the Islamic provisions of the Pakistan Penal Code (PPC) prescribe that the cases in which qisas (retaliation) becomes applicable can be forgiven/compromised or compounded on the basis of payment of diyat (compensation). As a result, the prescribed punishment may not be executed.

Yet, in certain situations the state retains power to punish the offender even if the parties reach a compromise. Such punishment would fall in the domain of ta’azir.

It was in 2005 that an amendment to section 311 of the PPC granted ‘discretion’ to the courts to award a minimum of ten years of imprisonment in ‘honour’ killings even if the relatives of the deceased forgave the perpetrator(s). But this judicial power was considered to be discretionary as the word used in this context was ‘may’; it read: ‘the court may… punish an offender’ rather than ‘shall’. Further, this discretionary power could only be used within the scope of provisions relating to qisas and waiver/compounding. And since 2005, experience has shown that courts are reluctant to use this discretionary power.

The latest amendment does not change this particular aspect to make the court’s power mandatory, at least not in express terms. However, it does raise the minimum punishment of ten years of imprisonment to imprisonment for life. Enhancement of the punishment only makes sentencing options harsher; it does not enhance the court’s power to make it obligatory to award punishment. It may also be relevant to mention here that a related change is also introduced in section 338E of the PPC. Earlier, the court’s power to award punishment seemed to be subject to the consent of the parties. That has now been done away with. But even then the nature of the court’s power to award punishment remains discretionary.

It must be kept in mind that section 311 of the PPC can only be invoked in situations where offence is proved on the touchstone of the Islamic standard of proof -- ie there should either be reliable and truthful confession or other evidence which fulfils the Islamic conditions of tazkia-tu-shahood, ie absolutely reliable, truthful and wholly unquestionable evidence regardless of the number of witnesses. Such evidence would be very rarely available. Therefore, qisas would rarely become applicable, leading to invocation of section 311 of the PPC.

A significant number of cases of ‘honour’ crimes are stalled at an early stage of investigation when parties reach an out-of-court settlement and submit compromise leading to an end to criminal prosecution even before the trial begins. But the amended law does not introduce anything to fundamentally change the law and the related procedural aspects.

It must also be pointed out that the option of sanctioning life imprisonment as a discretionary power with the court under section 311 of the PPC is exercisable in ‘honour’ killing, which falls in the definition of fasad fil arz (mischief on the earth). But this may only be awarded once qisas becomes applicable, after the fulfilment of the Islamic standard of proof.

Let us now turn to the ta’azir framework. The law before the latest amendment made it mandatory that where Islamic provisions could not be given effect, ‘honour’ killing, if proven in accordance with the ordinary criminal law standard of proof, would entail mandatory death or life imprisonment under section 302(b) of the PPC. However, this is subject to the possibility of compounding/compromise under section 345 of the Code of Criminal Procedure (CrPC). The option to compound murder under the ta’azir framework was introduced alongside the introduction of Islamic provisions in 1990.

In the latest attempt to amend the law relating to murder in the name of ‘honour’, the relevant provision of secular framework ie section 345 of the CrPC is made ‘subject to section 311 of the PPC. Ostensibly, the aim is to ensure that even if parties reach a compromise under section 345, as opposed to Islamic provisions, the court still has the power to award life imprisonment. But this is a flawed solution for the following reason.

Could the operation of section 345 of the CrPC be made subordinate to section 311 of the PPC? The answer can only be in the negative because the waiver and compounding referred to in section 311 of the PPC do not fall within the scope of section 345 of the CrPC. A plain reading of section 311 of the PPC shows that it can only be invoked where qisas is waived or compounded. Compounding of offences under section 345 of the CrPC is independent of the PPC’s Islamic provisions.

This view is strengthened by a recent Supreme Court judgement. In Zahid Rehman vs the state (PLD 2015 SC 77) (para.32), a SC bench comprising five judges has held that “the provisions of section 311, PPC are relevant to and can be pressed into service in cases of qisas only and not in cases of ta’zir”.

Could this legislative intervention to make section 345 subject to section 311 make a difference? In the opinion of this writer, the answer is a plain ‘no’.

To be continued

The writer is a lawyer. Twitter @LegalPolitical