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Honour Killings In Pakistan: A Human Rights Legal Perspective  

 

 

 

More than 5000 women worldwide fall victim to these crimes and the average age of the victim is usually between 15-25. Let me shed light on one of the most shameful acts still prevalent in modern times. According to a defintion accessed from Aurat foundations’ 2010 pilot study on Honour killings,“Honour crimes are acts of violence, usually murder, committed by male family members against female family members, who are held to have brought dishonor upon the family[1].” Honour killings constitute part of honour crimes and are a worldwide phenomena that has taken on various names such as crimes of passion in Latin American countries, spouse murders in some U.S states and Honour killings in Islamic states. These crimes may be brought about when a person ( usually female) is convicted, suspected or in some cases even has the potential to conduct sexual acts out of marital bonds. So‐called honor killings are based on the conviction, profoundly ingrained in a few cultures, of women as objects and commodities, not as human beings endowed with dignity and rights equal to those of men. Women are considered the property of male relatives and are seen to embody the honor of the men to whom they “belong.” Women’s bodies are considered the repositories of family honor. The concepts of male status and family status are of particular importance in cultures where “honor” killings occur and where women are viewed as responsible for upholding a family’s “honor.” If a woman or girl is accused or suspected of engaging in behavior that could taint male and/or family status, she may face brutal retaliation from her relatives that often results in violent death. Even though such accusations are not based on factual or tangible evidence, any allegation of dishonor against a woman often suffices for family members to take matters into their own hands.[2]

In Pakistan, honour killings are prevalent throughout the country. The concept traces back to Pakhtun and Baloch tribal customs. It has however since become prevalent in both Sindh and in Punjab, resulting in murders being committed across the country without any regional or class boundaries[3]. The concept of Honour killings stems primarily from male patriarchal system in Pakistan and where women are seen primarily for care giving, child birth and pleasure purposes the notion of illicit sexual relations also involves economic reprucussions for the family besides the regular social and cultural stigma. These economic reasons are a prime driver of honour killings especially in lower income housholds. According to experts honour killings are one of the most prevalent forms of violence against women in the country  and in some cases is even perpetuated with reasons other than honour being the driving cause which may include seeking divorce from an abusive husband or refusing to enter into an arranged marriage or in some extreme cases even being a victim of rape.

Honour killings constitute grave and serious human rights violations. Some of the most important rights that are violated include the right to life, the right to dignity, the right to equal treatment before the law and the right to due process of law. Right to life is a prime non-derogatory right and it has to be upheld even in times of emergency because if there is no life than other rights become meaningless. As this right is at the root of what is violated by perpetrators of honour killings and women are the primary victims of honour killings, therefore we need to delve deeper into the question as to why the life of a woman is considered cheaper in our society? The concept of ownership has turned women into a commodity which can be exchanged, bought and sold[4].  According to Maliha, Honour in the traditional settings is a male prerogative, it is men who possess zan, zar and zamin (women, gold and land) that allows them to hold their heads up; women have no honour of their own.[5] In Pakistan majority of the women are forced to stay at home and do housework rather than any economic (Bread winning activity). This forces them to adopt a more conservative approach. Moreover, whatever economic activity they do they usually do not get the compensation for that and are therefore completely dependent on their guardian be it their husband or their father for economic support. Therefore, due to these reasons the right to life of a woman is considered at a lower pedestal in our country.

Moreover the right to due process of law is hampered in honor killing cases as the victims usually are given verdict in customary settings such as a panchiyaat or Jirga. The formal judicial process is not activated nor made use of while taking  decisions in these cases. The right to dignity is also violated as violence perpetuated against any individual without due process violates his/her right to lead a dignified life and honor crimes are nor different.

The right to equal treatment before the law which is enshrined in International Covenat on Civil and political rights (ICCPR) Article 14 says:

  • “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law……”
  • “Everyone charged with a criminal offence shall have the right to be pre sumed innocent until proved guilty according to law.”[6]

 

Also, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires states to grant women equality before the law, including equal legal capacity and the ability to exercise that capacity in civil matters (Art. 15). It requires states 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 (Art. 2(c)). The Convention on the Elimination of All Forms of Discrimination against Women requires States Parties to repeal all penal provisions that discriminate against women (Art. 2(g)) and adopt legislative and other measures prohibiting discrimination against women (Art. 2(b)). (See also of the International Covenant on Civil and Political Rights (Article 26)[7]

Therefore as the crimes are usually conducted against women and the men run scot-free in many cases therefore there is a fundamental violation of right to equal treatment before the law.

Let us now explore the legal perspective of honor killings and their punishment. The law related to honour killings i.e. karokari, came into being in 2004. However, contrary to popular belief, the law does not stand on its own with its own offences. Instead it made a number of amendments to other legislation including the PPC. Therefore, the latest versions of these laws carry the laws relating to honour killings. In pre-partition cases, it was a norm that a husband could benefit from the exception of ‘grave and provocation plea’ if he killed his wife or her alleged lover if they were guilty of adultery. Post-independence, much of the debate related to the issue of Islamisation of the laws, specifically the criminal law relating to murder and hurt, which directly relates to the prosecution of honour killings. The Qisas and Diyat Ordinance was promulgated to address the supposedly anti-Islamic elements of criminal law. Initially there was no specific provision for honour killings and these ‘murders due to provocation’ were usually looked over by the Pakistani courts and their punishments mitigated. However the main breakthrough relating to Honour killings came through the The Criminal Law (Amendment) Act 2004. This act was enacted after continuous and massive pressure from the civil society and international community. However, a number of essential changes were not incorporated which we will discuss in detail later. We conducted a primary research survey in which majority of the respondents agreed that this law was still not adequate enough to protect the victims of honour killings. Some of the respondents said that money shouldn’t be used as a tool in this particular case to buy freedom as the family of the victim and the accused are usually indistinguishable in cases of honour killing. One NGO-working female also said, “It is a crime against state, therefore, paying compensation “rule” ridicules the state and her duty to protect each citizen”. Majority agreed that keeping the blood money and compundability clause intact made the law highly exploitable.

Let us firstly look at the positive aspects of the 2004 Act. The discretion of the court to decide where according to the injunctions of Islam the punishment of qisas was not applicable has been removed in reference to murder committed in the name, or on the pretext of honor. It also removes the possibility of the murderer being the wali (guardian), while also allowing the State to take the responsibility of wali if necessary. The punishments have been raised from 14 to 25 years. Giving of women as badl-i-sulah (for marriage or otherwise in compensation for a crime committed) has been made illegal with penalties. In cases where all the wali do not waive or compound the right of qisas, or on the principle of causing fasad-fil-ard (chaos or disorder in society), the court may punish an offender against whom the right of qisas has been waived or compounded, while also giving a minimum imprisonment for 10 years in case of honour crimes. Minimum sentences are also given for different related offences. In cases of hurt where qisas will not be enforced, the court, along with arsh (compensation for hurt) may award a punishment of tazir, especially if it is an honour crime. In situations where the heirs choose to waive or compound the offence, in cases of honour crimes, a procedure has been laid down i.e. subject to conditions as the court sees fit according to the facts and circumstances of the case. Changes in the CrPC include changes made to procedure, i.e. higher ranks of police officers will be assigned to investigate honour crimes and zina (sexual relationship outside marriage) offences. It clarifies, as above in the PPC, anyone who can waive or compound the offence; the conditions have to be approved by the court. It also takes away the provincial governments authority to abate or suspend any sentence on honor crimes.[8] However, may loopholes in this law still remain which continue to constitute a grave human rights violations. These include the fact that the punishment for honour killings is not mandatory which makes this whole process superfluous to begin with. The most controversial aspects though remain related to the provisions of waiver and compoundability, which almost inevitably pave the way for compromises, particularly since most crimes of this’ nature take place within close members of the family, remain valid in cases of “honour killings. [No exclusion of the provisions of Sections 309, 310, 311, 338E PPC in the case of honour crimes]. Also the consent to suspension or remission being allowed to victims or families of victims may create an avenue of continuing pressure on them even after conviction of the offender. Moreover the practice of badl-e-sulah has been banned i.e. practice of giving women in marriage to correct a wrong. However, this needs to be accompanied by fines. Also, There is no liability to ensure that others who are usually involved in, encourage or validate such killings, e.g. jirgas, panchayats, family members/elders etc.), and are therefore equally accountable for these practices, become just as liable to penalty under the law. Lastly, While “honour” killing has been included in the definition of fasad-fil-ard and a minimum penalty of 10 years as tazir laid down (with a maximum of 14 years), the awarding of a penalty in cases where the right of qisas has been waived or compounded has been left completely at the discretion of the court. As in the past, this provides the escape for murderers to get away with minimal or no penalty.

In Pakistani case law the Sindh high court has taken the most progressive stance relating to honor killings. Justice Shahid Anwar Bajwa of the Sindh High court stated that, “ Karo Kari is crime which is a blot not only on the fair name of Sindh …It has in the comity of nations, always sullied Pakistan and Muslim Society as a whole”.[9] The Supreme Court, however has allowed laxity in the cases relating to crimes of provocation. It has set a standard according to which it judges these cases now. The standard is, “….. If the accused is able to prove that he was deprived of the capability of self-control or was swayed away by circumstances immediately preceding the act of murder or there was an immediate cause leading to grave provocation the he may be allowed mitigation in his sentence”.[10]

While the Supreme Court may have attempted to lay down a few specifications before acceptance of the plea of grave and sudden provocation, but clearly it is being translated as an acceptance of murder in the name of honour. In fact, apart from finding ways to circumvent the Supreme Court, a number of judgments do not even refer to the plea of provocation, but instead simply state ghairat as an extenuating circumstance.[11]

Conclusively, we can say the area of honor killing is still an area of Law, which needs further consideration, may it be in Pakistan or internationally. It is a matter of Human Rights, which has not yet been considered as Human Rights issue as other matters are globally.  Women are as much as a member of the society containing similar rights as men. Therefore, the killing of women may it even be in the name of honour should be taken seriously as it may be of any man. In the survey we conducted 95% of the respondents be they male or female ,old or young, working or non-working agreed that Honor killing is never justifiable. I would like to conclude by giving the answer of one of our respondents, who said, “Honor killing is never justifiable and no killing is justified except the type that is approved by the state after a proper judicial inquiry.” Also more than 90% of the respondents agreed that honor killing should be illegal under all circumstances thus putting to rest debate about whether grave and sudden provocation constitute a reason to murder someone.

[1] Maliha Zia Lari, A pilot study on: ‘Honour Killings in Pakistan and Compliance of law’ , Aurat Foundation report, pg.17

[2] Hillary Mayell, ‘Thousands of Women killed for family honor’ (National Geographic News, 12th Feburary 2012) http://www.unl.edu/rhames/courses/212/readings/honor-kil-ng.pdf accessed 11th March 2016

[3] Maliha Zia Lari, A pilot study on: ‘Honour Killings in Pakistan and Compliance of law’ , Aurat Foundation report, pg.18

[4]Neshay Najam, ‘Honour Killings In Pakistan’ http://www.islamawareness.net/HonourKilling/ accessed 11th March 2016

[5] Maliha Zia Lari, A pilot study on: ‘Honour Killings in Pakistan and Compliance of law’ , Aurat Foundation report, pg.21

[6] International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United Nations on 19 December 1966, accessed from  https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf

[7] UN women, http://www.endvawnow.org/en/articles/729-sources-of-international-law-related-to-honour-crimes-and-killings.html, accessed 3/11/16

[8] Maliha Zia Lari, A pilot study on: ‘Honour Killings in Pakistan and Compliance of law’ , Aurat Foundation report, pg.32

[9] Daimuddin and others vs. The State, 2010 M L D 1089, Karachi

[10] Muhammad Zaman v. The State P L D 2009 Supreme Court 49

[11] Maliha Zia Lari, A pilot study on: ‘Honour Killings in Pakistan and Compliance of law’ , Aurat Foundation report, pg.60

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