Violence in the term of honour is not a new concept. Fighting the scourge of honour killing is a constant political struggle against the patriarchal set-up that we the people of South Asia inherited from history. Pakistan is continuously facing this increasing phenomenon. Honour is an undefined domain in a male-dominated society like Pakistan, and it is used as an instrument to legitimise the criminality of murder. Honour killing is not lawfully approved, but the judiciary, the administration and the general public often forgive it, one way or the other.
In some tribal parts of Pakistan where such a murder is not considered a wrongdoing, honour killing is a punishment for individuals who break the traditional honour code. The reason behind such violence is that women are viewed inferior, and that they must be ‘reined in’ by men. The wide acknowledgment of honour killing has deprived women of their basic rights, which are guaranteed by the constitution of Pakistan. Women, especially in tribal areas, cannot raise their voice against domestic violence, and such type of violence is rarely reported and rarely prosecuted.
Pakistan’s legal system fails to criminalise a quite common but highly serious form of domestic violence. In Pakistan, honour killings are decided by two legal forums: formal judicial institutions and informal legal system called the tribal justice system. The formal legal system comprises a body of law that combines influences of the English common law, prevailing customary law and Islamic law. It has a hierarchical court system established by the constitution. The informal legal system is based on tribal rules, commonly called the ‘honour code’, and is administered by quasi-judicial tribunals, generally known as a jirga, which is mostly very biased against women.
No codified law in Pakistan provides an exemption from punishment for murder or injury in the cases of honour killing. Honour killing is dealt as a murder crime under the criminal law of Pakistan, and qisas (punishment equal to the offence) and diyat (compensation), based on Islamic injunctions. Recently, special legal provisions have been promulgated amending the criminal law vide Criminal Amendment Act, 2004 to define and enforce punishment for an offence committed in the name or on the pretext of honour. Apart from such amendments some loopholes still persist in sections 306 and 307 of the Pakistan Penal Code (PPC) in cases of honour killing.
The furore over bad publicity for Pakistan and the fact that we were being pointed at as a society tolerant of barbaric acts such as killings has resulted in a few clerics who call themselves moderate declaring fatwas against killing women in the name of honour. Pakistan signed, ratified and adopted the UN convention on Elimination of all forms of Discrimination against Women in 1996. Even with this international instrument, 51 percent of our total population falls victim to some form of patriarchal violence.
The judgement given in the Saima Waheed case shows a strong inclination towards a patriarchal mindset. The judgement reads somewhat like this: “The concept of young girls venturing out in search of spouses is alien to the teaching of Islam, and even otherwise this scheme of husband-shopping, which obviously involves testing and trial of the desired…”
In 2016, Pakistan took steps to ensure international commitments and constitutional provisions to safeguard women rights by introducing the Punjab Protection of Women Against Violence Act (2016), which took into account the alarmingly rising number of occurrences of violence against women in Pakistan. Not only did it provide aggrieved persons with a toll-free number to report any abuse, but it also promised psychological as well as physiological assistance to the victim throughout the duration of a conflict.
Recently, a joint session of parliament approved the Anti-Honour Killing Bill (2016) by introducing strict punishments for convicts. However, some loopholes still persist in the bill; for example, the proposed legislation on honour killings recommends 25 years’ imprisonment even if the heirs of the victim pardon the convict. Under Section 302 of the PPC, the convict in a simple murder case may get life imprisonment of 14 years or a maximum of death penalty. The legislation on honour killings would not achieve the desired results as the accused may claim that he had committed the murder for other reasons such as a dispute over property etc. Hence, he may be charged with Section 302 of the PPC, and family members may pardon him under Section 309 of the PPC.
Lawmakers should amend Qanoon-e-Shahadat (the law of evidence) for honour killing cases, and the standard of evidence should be relaxed, as that would increase the possibility of conviction.
Regardless of the many gaps evident in these new legislations, it is true that the parliament of Pakistan, with help from NGOs, civil society, academia and media, has made history by passing pro-women laws, which aim to prevent killing of women in the name of honour by making the crime a non-compoundable offence. At the end of the day, it all comes down to how well a law is implemented. It does not matter how many laws the state has unless it truly implements them. Specifically, the Anti-Honour Killing Bill can barely operate in a system where religious groups use the name of Islam to exercise power, and feudal lords act as lawmakers. It is quite possible that the bill’s provision of pardon will be misused to save killers.
The writer is a student of law at the Punjab University, Lahore, and is a member of the Youth Parliament Pakistan. She can be reached at [email protected]