Daily Times

Let me start with a simple statement. So long as you allow religious clergy to influence law making, there can be no progress on issues such as women’s rights. This is as true of a constitutionally secular state like India as it is of a constitutionally Islamic republic like ours. In secular India, the All India Muslim Personal Law Board is vehemently opposing any change to the three-talaq rule, which, thankfully, we greatly modified through the Muslim Family Laws Ordinance 1961 in Pakistan. However, despite that early progress on women’s rights within a decidedly religious framework, our situation post General Zia-ul-Haq’s terrible 11 years in power is even more pathetic. Here the tentacles of the clergy have now spread into criminal law. Their antiquated and outdated interpretations of the faith have stalled progress on even the most common sense issue.

The recently passed honour killing bill is just another example of how limited the scope for any progressive action is in Pakistan so long as we remain wedded to the idea that the clergy must be appeased. Before I get into that, some background information is in order. Through the Qisas and Diyat Ordinance 1980, General Zia’s legal eagles destroyed the very fabric of the criminal justice system in Pakistan by making murder a compoundable offence. Hence the punishment for murder came to be the “right of qisas” i.e. revenge by the heirs to be executed by the state. However, the heirs could forgive the murderer against “badl-e-sulh” the value of which is defined as “not less than diyat.”

Diyat itself is defined under Section 323 of the Pakistan Penal Code, 1860 (PPC) that states: “The Court shall, subject to the injunctions of Islam as laid down by the Holy Quran and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat, which shall not be less than the value of thirty thousand six hundred and thirty grams (30,630 grams) of silver.” This amount today, if you are wondering, is about Pakistani rupees two million. This is a mockery of the very concept of justice in Islam. There is nothing in the Islamic jurisprudence that stops the state from designating murder as a crime against the state but that is not what our clergy will tell you. By elevating form over substance, as they do in almost everything, these crooks, cranks and madmen have brought Islam into disrepute.

The other more sinister use of these provisions was in the honour killing cases where a brother would kill a sister in the name of honour, and then the father as the ‘wali’ would forgive him. The mullahs insist on safeguarding this because to them this is the only way honour of society can be preserved, and people can be stopped from going down the way of the decadent west. The present bill attempts to address this issue by making a crime committed in the name or on the pretext of honour fasad fil arz, literally translated as chaos on earth. The waiver of the right of qisas has been made subject to Section 311 of the PPC where, in turn, honour killing has been made subject to life imprisonment as tazir. In other words, we can now rest easy knowing that if someone kills his sister or daughter or wife or mother for honour will, at the very least, get life imprisonment despite the waiver of the right of qisas. Wrong.

By making honour killing just another exception to the idea that murderers can go scot-free after murder, a Pandora’s box has been opened. Now in order for the prosecutor to prove that an accused murdered his sister or daughter or mother or wife on the pretext of honour, the prosecutor would first have to show that there was something in the conduct of the victim that outraged the honour of the accused. It is much more likely now that the accused would simply claim in court that the reason for murder was something different, that perhaps he murdered his sister for the sake of property or that he murdered his sister because she was a bad cook. In that case we would be back to square one. Murder would be compounded. So at most what has been achieved is that now a person killing in the name of honour would not be able to openly proclaim it as such. Do not, therefore, expect any drop in any honour killings through this half-baked law.

The basic problem with the law is that murder remains compoundable under our criminal justice system. Yet perhaps a middle ground could have been found by declaring that in all cases where a male family member kills a female family member, the presumption would be that it has been done on the pretext of honour. That would have resolved the issue of honour killings but would have still left the basic question open. The only solution to the problem of misuse of Qisas and Diyat law is to make all murders, without exception, punishable with life imprisonment, even after payment of diyat and badle-sulh. Such a law would also be closer to the spirit of justice that central to Islamic jurisprudence as well.

The honour killing law is merely eyewash designed to fool the world. It is not even a baby step towards progress.

The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com