The recent high-profile murder of Qandeel Baloch, allegedly killed by her brothers to vindicate their ‘ghairat’ or ‘honour’, has led to the approval of a government-sponsored bill.
The proposed draft bill aims at dealing with crimes of ‘honour’. This draft is different from an earlier bill which was introduced by former PPP Senator Sughra Imam and passed by the Senate of Pakistan in March 2015. Both suffer from inadequacies.
A similar effort was initiated in 2004 by the then opposition led by the PPP. The initiative led to the passing of the Criminal Law Amendment 2005 (Act no 1). The 2005 Amendment Act was said to be a watered down version of the bill introduced by the opposition.
In similar fashion, the current government sponsored bill weakens in some critical respects the Senator Sughra Imam bill, while offering slight improvement in other respects.
The main criticism of the 2005 Amendment Act was that it left the possibility of waiver and compounding of the offence of crimes of ‘honour’ (compromise between the private parties) open to the extent that it could be read to give the court the discretion to accept or reject such a compromise and acquit the offender.
This was either due to ambiguity in how it was drafted, especially the amendment to section 311 when read with section 338 E of the Pakistan Penal Code (PPC), or otherwise where it clearly left the crimes of honour including murder in the name of ‘honour’ compoundable under section 345 read with the second schedule of the Code of Criminal Procedure (CrPC).
In both conditions, private parties – legal heirs of the victim in case of murder or the victim herself in case of attempted murder or hurt – could reach an out of court settlement/compromise.
However, it could be argued that in the case where section 311 of the PPC (post-2005 amendment) became applicable ‘honour’ killing must be awarded a minimum sentence of ten years of imprisonment. This has happened in some cases decided by superior courts.
Another criticism of the 2005 Amendment Act included, but was not limited to, that the 2005 Amendment Act did not offer a clearer and broader definition of crimes of ‘honour’ and that the definition of ‘fasad-fil-arz’ included the offence of murder in the name of ‘honour’ only.
The Sughra Imam bill focused on removing the possibility of compromise between private parties and turning the crime of ‘honour’ killing, and not all crimes of honour, a crime in which the state would not allow compromise of any kind – neither secular nor Islamic. The bill did not touch the questions of broadening the scope of fasad-fil-arz to all crimes of honour; and the definition of the offence committed in the name of ‘honour’ (section 299 PPC) was left untouched.
The current amended form of the bill sponsored by the government does two or three important things.
It defines fasad-fil-arz to include all crimes of ‘honour’ but it does so without providing a clearer and broader definition compared to the circular definition of the crime committed in the name of ‘honour’ as is currently provided in the penal code.
Further, it changes section 311 of the PPC which prescribes consequences when parties reach a compromise in cases where qisas becomes applicable, to the effect that it raises the punishment for ‘honour’ killing from minimum imprisonment of ten years to imprisonment for life as taazir (secular punishment).
And while it seems to make the enhanced punishment mandatory when this amendment is read with proposed changes to sections 345 of the CrPC, a related amendment to column 6 of the second schedule for section 311 of the PPC is not proposed. This is ambiguous and may lead to conflicting decisions by the courts.
The punishment of imprisonment for murder in the name of ‘honour’ is raised to imprisonment for life in all circumstances. The death penalty remains a possibility, though. However, it is questionable whether prescribing imprisonment for life as the only option in the category of imprisonment (for murder in the name of ‘honour’) without an alternate lesser imprisonment for cases where there may be compelling mitigating circumstances, including non-availability of direct evidence, is the right approach.
The bill keeps other forms of crimes of ‘honour’ such as all hurts and attempted ‘honour’ killing compoundable. This is a dimension which seems to have escaped serious consideration.
There is another issue that is very likely to crop up at some point. In the current framework for proof of crimes committed in the name of ‘honour’ the motive of ‘honour’ must be proved; this is an extraordinary condition as proof of motive is not necessary in ordinary cases.
Proving motive is not easy in all cases. Proof of the commission of an offence, murder or others, and the intention, per se, to do so is considered to be enough.
In ‘honour’ related crimes intention would be proved through the proof that the offence is committed in the name of ‘honour’. In complex cases, where the reason/motive is not easy to establish, the offenders may raise a motive different from ‘honour’.
This problem will persist unless the provisions relating to qisas and diyat are completely eliminated and the state restores to itself the space ceded on the pretext of Islamisation of criminal law.
The issue of amending the law to provide protection to women from crimes of honour is a complex one. It may not be done in one stroke, and it may require many minds to wriggle out of the complexity. Some of the recommendations which may be made in light of the foregoing analysis may include.
If the current broader framework of qisas and diyat must stay for the time being, any proposal to amend the law must provide a clearer and broader definition of ‘honour’ crimes to include a range of offences against women. The definition may be phrased in such a way that it is considered by courts to be inclusive rather than exhaustive.
Ideally, all offences against women – especially all bodily hurts, attempted murder, and murders by close relatives – should not be allowed to be ‘waived’ and/or ‘compounded’ by close relatives/survivors. The Islamic concept of fasad-fil-arz may be applied to all such crimes which give courts the power to disregard waiver and compounding on behalf of close relatives or the victim herself.
Further, compounding of offences punishable under taazir (secular punishment) should not be an option and no discretion should be vested with the courts in this respect.
The state must prosecute all such crimes, and such prosecution must necessarily result in conviction and sentencing instead of compromise between private parties.
The framework of punishments needs to be such that in the absence of compelling evidence where maximum punishment cannot be awarded, courts have the discretion to award lesser punishments. But such discretion should be narrowly and strictly prescribed so that it may not be used to the disadvantage of the victims – who are mostly women.
The current bill is being kept under wraps by the government for fear of backlash from retrogressive elements within and outside the ruling party, including the Council of Islamic Ideology.
But if the government is serious about liberating the women of this country from the fear that afflicts their lives, it must allow a fearless debate to take place. Appropriate changes in the legislative framework to provide protection to the women of Pakistan will be just one of the many small steps that need to be taken.