Saturday May 28, 2022

Mortgaged honour

March 05, 2022

The acquittal Qandeel Baloch’s brother reinforces the pertinence of Lord Salmon’s observation in Jennison v Backer (1972): "[the] law should not be seen to sit limply, while those who defy it go free and, those who seek its protection lose hope".

A careful reading of the verdict passed by the honourable Lahore High Court (LHC) reveals that the acquittal was, primarily, granted on two grounds.

First, the killing was not under the pretext of honour as the accused confessed that he killed his sister only due to her pictures and videos, however, he never specifically admitted that his act was motivated by honour. Thus, the court cannot presume facts and convict the accused on the basis of assumptions.

Second, the judicial confession of the accused was invalid as it was not voluntary and suffered from material irregularities. Whilst adopting a hyper-technical approach, the honourable court held that during recording of the confession, the accused was not provided with a comfortable environment, which raises suspicions on the confession’s credibility.

After giving a deep analytical rigour to the facts and circumstances of the case, probing the applicable law and examining relevant jurisprudence settled by the superior judiciary, it can be argued that the reasoning adopted for acquittal is legally untenable. The reasoning that the honour killing was not specifically acknowledged in the judicial confession is misconceived. The confession of the accused that he killed Qandeel because of her videos and pictures on social media was sufficient to bring the act within the ambit of honour killing. By applying objective standards, it can be easily inferred that the unacceptability and inappropriateness of pictures and videos was the result of the accused's own morals which he subjectively perceived to have brought dishonour on his family.

The reasoning adopted by the court, to discard the confession, can lead to unfathomable consequences in criminal jurisprudence. The reasoning that the judicial confession is not credible is also unfounded and speculative. Our superior courts in various judicial pronouncements have held that judicial confessions must be voluntary, without duress, free from coercion and coherent with facts. There is nothing available on the record to show the confession was involuntary, coerced or incoherent.

Furthermore, the objections that the confession was recorded thirty minutes after arrival of the accused, and was recorded in Urdu, are not sustainable. In the Ajab Khan Case (2022 SCMR 317), similar objections were considered by the Supreme Court and were held to be inconsequential. Likewise, as per the record, it is not clear whether the accused was in handcuffs or not during the recording of judicial confession. It was supposed that the accused was in handcuffs, and this was treated as an indefensible irregularity. Another incongruity is that the arguments with respect to credibility and validity of judicial confession were never raised by the defence counsel and were never confronted to the prosecution.

Qandeel’s episode is not the first judicial blooper. The Gul Hassan Khan Case (PLD 1989 SC 633) is responsible for the introduction of the Qisas and Diyat laws in Pakistan, which provided that acts affecting the human body are no longer offences against the state, but offences against an individual. Consequently, it rendered homicide as a private dispute and legalised pardon or blood money.

A glance at the jurisprudence developed by superior judiciary involving honour killings reveals that patriarchy is deeply entrenched in our judicial system. The courts are often found serving as moral guardians of women’s honour rather than punishing those who rupture the sanctity of the law. While deciding honour killing cases, sometimes our judiciary has laid down awfully unpropitious principles – for instance, honour killing is an act of self-defence; fathers and brothers are guardians of the honour of women, thus honour killing by them will not amount to qatl-e-amd; capital punishment is not justified in cases involving family honour; killing over honour on provocation is an extenuating ground for grant of lesser punishment, and killing one’s wife on seeing her in a ‘compromising situation’ is basis for lenient punishment.

On the rarest of rare occasions, the judiciary, especially the apex court, has unfalteringly stood for protecting the rights of victims of honour killings. In 2019, the Supreme Court held that killing in the name of honour is a despicable act which violates Article 9 (right to life) of the constitution.

The reforms introduced by the legislature in 2004 and 2016 are inadequate, major loopholes and ambiguities still exist in the current legal scheme. It needs to be noted that lawmakers have missed to reform key areas which are chiefly responsible for the ultra-conservative judicial approach. Honour crimes have still not been made crimes against the state under the law, leaving ample space for outlaws to either walk free or get less severe punishments. Likewise, nothing has been done to curb the misuse of the plea of grave and sudden provocation, the root of all evils. Accordingly, there is a dire need to limit this judicial penchant for mitigating circumstances.

Lastly, the law of the land still lacks definition of the word ‘honour’, that can be employed by court to accurately determine whether or not a crime is committed in the name of honour. Consequently, it is still up to the judge’s sole subjective discretion to determine whether or not a crime has been committed in the name of honour.

Allan C Hutchinson aptly observed “the judicial emperor, clothed and coifed in appropriately legitimate and voguish garb by the scholarly rag trade, chooses and acts to protect and preserve the propertied interest of vested white and male power”. Regrettably, courts in Pakistan have narrowly construed the law in light of societal norms and customs, and their preconceived notions and conceptions as members of a patriarchal society often results in a serious miscarriage of justice. Judges, most of the time, willingly or unwillingly, let their prejudices against women seep into their pronouncements to give the already patriarchal laws more patriarchal construction.

Courts need to realise that the wishes, aspirations, dreams and rights of women cannot be mortgaged to the honour of the family; women are not symbolic vessels of honour. Unfortunately, judges have become totally unconscious of the fact that they cannot, in honour crimes, offer justifications based on subjective philosophies and moral codes of their own. Courts are required to adopt a liberal, progressive and purposive approach for interpreting laws while dealing with the cases of honour killing. As mentioned before, those who defy the law shouldn’t go free and anyone planning to perpetrate honour killings should know that the gallows await them.

The writer is a Lahore-based advocate of the high court.