Pakistan: No compromise on murder
Source:
South Asia Citizen's Wire Murder by any other name still smells foul. It is still murder.
Unfortunately, the Criminal Law (Amendment) Bill 2004 against 'honour killings' introduced by the treasury bench in the National Assembly deems this crime compoundable, allowing for a 'compromise' (razinama) between the parties.
Thus the accused in 'honour killing' or karo kari cases will continue to be able to escape punishment.
Most karo kari cases are committed by a close relative - father, brother, son, or husband of the woman. Often, the victims are the most vulnerable members of the family or community. In either case, if and when the case reaches a court of law, the victim's family may 'pardon' the murderer (who may well be one of them), or be pressurised to accept diyat ('blood-money') as compensation. The murderer then goes free.
The motive is often other than the stated ghairat or honour, often related to land disputes or old enmities. Such cases continue to take place because, very simply, the murderer knows he will get away with it. The statistics speak for themselves: according to one estimate, around 1,261 cases of honour killings were reported in 2003 alone - 938 women and 323 men. That is, over a hundred such cases a month.
The present bill does nothing to change this state of affairs, which appears to have worsened since the promulgation of the Qisas and Diyat Ordinance of 1990. Like other laws enacted in the name of religion, this one too has its flaws and critics, as well as supporters who appear more interested in preserving the status quo than in the ground reality of its negative effects.
On the positive side, this law did away with the concept of 'grave and sudden provocation' introduced by the British and incorporated in Section 300 of the Pakistan Penal Code (PPC). The 'provocation' clause allowed someone who had been 'provoked' into spontaneous murder, to receive a lighter sentence if he could justify his act. Then, as now, a woman's perceived infidelity was justification enough.
The Qisas & Diyat Act's omission of this clause leaves no room in the law for any concessions. "But the law and the judiciary are apparently two different things," writes the Lahore-based criminal lawyer Hassam Qadir Shah, in 'Don't let them get away with murder', a booklet on criminal procedures (Shirkat Gah Women's Resource Centre, 2002). "While the law is clear and unforgiving on this account, some judges of the superior courts of Pakistan have tried to read between the lines to apply the earlier concept of justified anger. Quite a few reported judgments in the form of case-law have once again mitigated the offence of murder in the context of so-called 'honour' crimes."
However, as Shah notes, several judgments also criticise this trend. "Neither the law of the land nor religion permits so-called 'honour' killings and it amounts to intentional murder ('qatl-i-amd')," states one Supreme Court judgment, noting that "such iniquitous and vile" acts violate the fundamental rights as enshrined in Article 9 of the Pakistan Constitution which provides that no person shall be deprived of life or liberty except in accordance with law. "Any custom in that respect is void under Article 8 (1) of the Constitution" (PLD 2001 SC 96).
The major flaw in the Qisas and Diyat law, which covers all offences against the human body, is that it makes such offenses compoundable (open to compromise as a private matter between two parties) by providing for qisas (retribution) or diyat (blood-money). The heirs of the victim can forgive the murderer in the name of God without receiving any compensation or diyat (Section 309), or compromise after receiving diyat (Section 310).
Most cases result in one or the other compromise, thus allowing murderers to go free, even though Pakistani law does not contain any provision which allows the offence of murder to be mitigated. Contrary to common belief, Islam also explicitly forbids such killing in the name of ghairat or honour.
Prior to this change, the state was a party to murder cases, which were non-compoundable, in keeping with the principle that the state must ensure the right to life of all citizens, regardless of class, gender or creed. Now the poor "may be cornered into compromising even for the most heinous crimes in lieu of a hefty payoff, for instance. This promotes the practice of settling murder cases, and especially cases of karo kari through a compromise or razinama," notes Shah.
Many lawyers and human rights activists believe that there is no need to define 'honour crimes' or 'karo kari' murders separately, as the existing provisions of the PPC and the Criminal Procedure Code (CrPC) are sufficient, provided that such murders are registered as murder. In cases where guilt is established, through confession or trial, the perpetrator must be convicted at least on paper, even if there is a razinama, so that the criminal record is established.
No matter how well-intentioned, the government's bill on 'honour killings' is a farce as long as these factors are ignored. And finally, no law can bring about changes unless it is implemented, and unless society changes to accept the status of women as equal human beings.
by Beena Sarwar, originally published in The News on Sunday on October 17, 2004
Most karo kari cases are committed by a close relative - father, brother, son, or husband of the woman. Often, the victims are the most vulnerable members of the family or community. In either case, if and when the case reaches a court of law, the victim's family may 'pardon' the murderer (who may well be one of them), or be pressurised to accept diyat ('blood-money') as compensation. The murderer then goes free.
The motive is often other than the stated ghairat or honour, often related to land disputes or old enmities. Such cases continue to take place because, very simply, the murderer knows he will get away with it. The statistics speak for themselves: according to one estimate, around 1,261 cases of honour killings were reported in 2003 alone - 938 women and 323 men. That is, over a hundred such cases a month.
The present bill does nothing to change this state of affairs, which appears to have worsened since the promulgation of the Qisas and Diyat Ordinance of 1990. Like other laws enacted in the name of religion, this one too has its flaws and critics, as well as supporters who appear more interested in preserving the status quo than in the ground reality of its negative effects.
On the positive side, this law did away with the concept of 'grave and sudden provocation' introduced by the British and incorporated in Section 300 of the Pakistan Penal Code (PPC). The 'provocation' clause allowed someone who had been 'provoked' into spontaneous murder, to receive a lighter sentence if he could justify his act. Then, as now, a woman's perceived infidelity was justification enough.
The Qisas & Diyat Act's omission of this clause leaves no room in the law for any concessions. "But the law and the judiciary are apparently two different things," writes the Lahore-based criminal lawyer Hassam Qadir Shah, in 'Don't let them get away with murder', a booklet on criminal procedures (Shirkat Gah Women's Resource Centre, 2002). "While the law is clear and unforgiving on this account, some judges of the superior courts of Pakistan have tried to read between the lines to apply the earlier concept of justified anger. Quite a few reported judgments in the form of case-law have once again mitigated the offence of murder in the context of so-called 'honour' crimes."
However, as Shah notes, several judgments also criticise this trend. "Neither the law of the land nor religion permits so-called 'honour' killings and it amounts to intentional murder ('qatl-i-amd')," states one Supreme Court judgment, noting that "such iniquitous and vile" acts violate the fundamental rights as enshrined in Article 9 of the Pakistan Constitution which provides that no person shall be deprived of life or liberty except in accordance with law. "Any custom in that respect is void under Article 8 (1) of the Constitution" (PLD 2001 SC 96).
The major flaw in the Qisas and Diyat law, which covers all offences against the human body, is that it makes such offenses compoundable (open to compromise as a private matter between two parties) by providing for qisas (retribution) or diyat (blood-money). The heirs of the victim can forgive the murderer in the name of God without receiving any compensation or diyat (Section 309), or compromise after receiving diyat (Section 310).
Most cases result in one or the other compromise, thus allowing murderers to go free, even though Pakistani law does not contain any provision which allows the offence of murder to be mitigated. Contrary to common belief, Islam also explicitly forbids such killing in the name of ghairat or honour.
Prior to this change, the state was a party to murder cases, which were non-compoundable, in keeping with the principle that the state must ensure the right to life of all citizens, regardless of class, gender or creed. Now the poor "may be cornered into compromising even for the most heinous crimes in lieu of a hefty payoff, for instance. This promotes the practice of settling murder cases, and especially cases of karo kari through a compromise or razinama," notes Shah.
Many lawyers and human rights activists believe that there is no need to define 'honour crimes' or 'karo kari' murders separately, as the existing provisions of the PPC and the Criminal Procedure Code (CrPC) are sufficient, provided that such murders are registered as murder. In cases where guilt is established, through confession or trial, the perpetrator must be convicted at least on paper, even if there is a razinama, so that the criminal record is established.
No matter how well-intentioned, the government's bill on 'honour killings' is a farce as long as these factors are ignored. And finally, no law can bring about changes unless it is implemented, and unless society changes to accept the status of women as equal human beings.
by Beena Sarwar, originally published in The News on Sunday on October 17, 2004
