The level of violence against women is frighteningly high in Pakistan. Women are killed, maimed, brutally tortured, raped and persecuted to perpetuate patriarchal societal norms, and now in these precarious times, to vindicate ideology of religious fanatics. When violence against women is justified in the name of socially approved traditions, religious laws, it unwittingly serve to legitimise those societal values, structures and institutions that are the source of violence against women. In this article, I will discuss how social customs and Qisas and Diyat laws mutually work together to obstruct provision of justice to women in the cases of honour killings.
According to the Human Rights Commission of Pakistan (HRCP), 943 women became victims of honour crimes in 2011. Honour killings are perpetrated by close relatives, or clan members, for salvaging their tarnished family honour. The family honour, a notion rooted in sexual purity of a woman, can be sullied from a mere glance of a female to an unrelated male, from the decision of a woman to marry on her own, from seeking of a divorce by a woman and from suspicion of an extramarital relationship.
The centuries-old tradition of killing women in the name of honour has not been eliminated because penal provisions have been legislated — whether in common law tradition or Islamic — that have considered transgression of social norms by women as a mitigating factor for a premeditated murder. The 1860 British penal code introduced the concepts of chastity, modesty and the penal provision of “grave and sudden provocation”, which reduced a charge of murder to one of manslaughter, which was applied to honour killings. After independence, debate began to frame laws of Pakistan according to the principles of Islam, but the laws framed by the British colonial rulers were adopted under the Adoption of Laws Act 1949. When the Federal Shariat court was established in 1980, laws were challenged for being repugnant to Quran and Sunnah. In the case of the Federation of Pakistan vs Gul Hassan, the Supreme Court Shariat Appellate Bench directed that penal sections of Pakistan Penal Code and Criminal Procedure Code, dealing with murder and bodily hurt, must be brought in conformity to Islam. Thus, Qisas and Diyat were introduced in 1990.
The Qisas and Diyat laws are based on precepts of equal retribution and compensation. The basic principle of justice in Islamic laws as well as secular laws is proportionality or equal treatment: scales of justice should have balance. So, the principle of Qisas: an eye for eye, nose for nose and tooth for tooth, wound for wound; and Diyat — compensation for the victim or the heirs of the victim — has been enjoined in the Holy Quran. Many Islamic jurists opine that the rationale behind making Diyat part of Islamic model of justice had been to end a cycle of violence and vendetta that could be perpetuated by the retributive model of justice. Therefore, to establish reconciliation between the families of victim and the offender, the practice of compensatory payment was enshrined in the Islamic laws. Additionally, voluntary nature of reconciliation served another purpose too: offender might atone for his sins.
Notwithstanding the philosophical premise of the Qisas and Diyat laws, they can lead to miscarriage of justice for victims of honour killings for three reasons. First is the judicial exception: if a victim’s killer is a parent, grandparent, or a spouse survived by children born within marriage, then certain constraints are placed on the implementation of qisas and tazir under section 302(b) of the Pakistan Penal Code (PPC). It reduces duration of imprisonment and in most of the cases, ends up in compromise between heirs of victims and killers.
This leads to second anomaly. As the Qisas and Diyat ordinances essentially place the choice of prosecution wholly in the hands of the victim or her heirs, rather than government, thus, often, victims have no aggrieved party that can contest their case. The reason is simple: male relatives murder their female folk to redeem their honour with the consent of next kin of the victim; and these heirs generally forgive the killers. For instance, a brother killing his sister would be forgiven by heirs of the victim, which could be a mother, father or brothers of the victim. Therefore, the state whose role is to protect life and liberty of people becomes a non-entity because of privatisation of legal process and justice.
And, finally, the tradition of considering threats to honour and provocation as mitigating factors in honour killings remain intact under Qisas and Diyat laws. As the conduct of a woman, killed in the name of honour, is seen to contravene socio-cultural norms, the perception skews the outcome of the possible sentence in favour of the killer whose motivation to kill is not considered ‘premeditated’ by many judges. Thus, honour killings are implicitly accepted under the Qisas and Diyat Ordinance.
That said, the Qisas and Diyat laws need to be reviewed in Pakistan. It must be understood that justice can be privatised in an ideal society where state intervenes vigorously to protect women from violence and discriminatory cultural practices; in short, where a woman is deemed an equal member of society.
The writer is a research analyst and holds Masters degree in Public Policy & Management from King’s College, London