In Memory Of Qandeel Baloch: Loopholes In Pakistan’s First Anti-Rape & Anti-Honor Killing Laws
On 6th October, 2016, Pakistan passed its very first anti-honor killings and anti-rape laws moved by Senator Farhatullah Babar of the Pakistan People’s Party (PPP). Since the murder of Pakistani social media celebrity, Qandeel Baloch, this has been an incredibly significant step towards curbing such heinous crimes against women (and men, but realistically, it’s the women who must eventually pay for choosing to lead independent lives). Statistically, more than one thousand women are killed in Pakistan every year for allegedly bringing “shame” to their families.
Pakistani Oscar-winning filmmaker, Sharmeen Obaid-Chinoy, highlighted this very issue earlier in 2016 in her documentary A Girl in the River: The Price of Forgiveness, which sheds light on a girl who was shot in the face by her family. The fact that the documentary got internationally acclaimed led Prime Minister Nawaz Sharif to hold a special screening and to promise to give the legislation on honour killings more attention in order to punish the killers. The incident which really added pressure on the government to finally pass such a law was the murder of Qandeel Baloch by her brother in the name of honour. The unfortunate murder of a strong, independent and autonomous woman in the Pakistani society really shook up the entire system. Qandeel Baloch’s case is still pending.
Though these laws are major milestones in the history of Pakistan, the sad fact remains that they have come a bit too late and still consist of major loopholes. The catch is that the killer can be pardoned by the victim’s party if he gets capital punishment. According to legal experts, there are high chances that after killing a relative in the name of honor, the suspect may declare it a simple murder in order to evade punishment: a murderer can be released once the legal heirs pardon him. However, under the existing law on honour killings, the perpetrator or criminal is to get 25 years’ imprisonment even if the heirs of the victim pardon him, whereas the convict in a simple murder case might get the life imprisonment of 14 years or a maximum of the death penalty under Section 302 of the Pakistan Penal Code (PPC), which governs the punishment of murder (also known as the punishment of qatl-i-amd), whereby the punishment of the murderer is as follows:
- Punished with death under qisas;
- Punished with death or imprisonment for life under tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available;
- Punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment under qisas is not applicable.
In addition, the accused may be able to claim that he had committed the murder for other reasons such as conflict over inheritance or property, in which case he may not only be charged with Section 302 of the PPC but the family members may forgive him under Section 309 of the PPC, which is the waiver of qisas in cases of qatl-i-amd:
(1) In the case of qatl-i-amd, an adult sane wali may, at any time and without any compensation, waive his right of qisas:
Provided that the right of qisas shall not be waived;
(a) where the Government is the wali, or
(b) where the right of qisas vests in a minor or insane.
(2) Where a victim has more than one wali any one of them may waive his right of qisas:
Provided that the wali who does not waive the right of qisas shall be entitled to his share of diyat.
(3) Where there are more than one victims, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim.
(4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offender.
With regards to collecting evidence in cases of honor killing, the court and police are to follow the same procedure required in ordinary murder cases. This is why collection of evidence in honor killing cases is very difficult and this is the reason that a person, after killing women in his family (daughter, sister or mother), is unable to be be convicted.
Meanwhile, rape conviction rates are nearly zero per cent, because of the law’s reliance on circumstantial evidence and a lack of forensic testing. However, in the Anti-Rape Bill, a provision has been added under which conducting DNA tests on both the alleged victim and perpetrator have been made necessary for the first time. In addition, for the first time the rape of minors, as well as the mentally and physically ill, would become punishable by death, something that regretfully was never focused on previously. Tariq Mehmood Jahangiri, a criminal law expert and the President of the Islamabad High Court Bar Association, suggested that lawmakers amend Qanoon-i-Shahadat (the law of evidence) in cases of honor killings, as relaxing the standard of evidence would increase the possibility of conviction. Janangiri added that reliance on circumstantial evidence (i.e. electronic evidence and/or other related facts) be given preference over direct evidence (testimonies of witnesses).
Regardless of the many gaps evident in these new laws, it is true that PML-N, with help from NGOs, civil society, academia and the media, has in fact made history by passing pro-women laws which aim to prevent killing of women in the name of honor 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. You see, it does not matter how many laws the state has unless it truly implements them. Specifically, the Anti-Honor Killing Bill can barely operate in a system where religious groups use the name of Islam to control power and feudal lords act as lawmakers. It is quite possible that the Bill’s provision of pardon will surely be misused to save the killers.
In my opinion, if the government really wants to put an end to such murders and protect the women in this country, the option of forgiveness needs to be scratched and capital punishment to be ruled in favor of whoever abets or commits these crimes. Many would disagree with the concept of hanging as a solution, however, a strict law will get the job done and prevent murders of women in the name of so-called honor.
A major accomplishment and proof of the practicality and application of these laws will be when Qandeel Baloch is granted justice.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.