Fiasco Of The Anti-Honor Killing Bill 2015/16
When the atrocious murder of famous social media celebrity Qandeel Baloch was committed in the pretext of “honor”, Parliament decided to enact a law which would not allow such perpetrators to take refuge under the Islamic law concept of remission for homicide by the victim’s heirs. Although this seems to be a plausible effort by Parliament, yet the recent reform still has a lot of inadequacies. The purpose of this article is to provide a historical perspective and shed light on the recent development in the law in order to critically analyze the current position.
There is no qualm that murder in the name of ghairat, karo kari or siyah kari has commonly been committed from even before the time of the Indo-Pak partition to date. As per data provided by the Human Rights Commission of Pakistan (HRCP), in 2014 about 923 women and 82 minor girls had been victims of honor killings in Pakistan[1]. However, this figure only represents the cases reported before law enforcement authorities whereas in reality and practice, things are much worse.
The concept of honor killing is generally a customary concept and not a religious one, but it is a concept, which now seeks refuge under the umbrella of Sharia law. To understand the concept it is imperative to consider the already existing position of the law. Under this, several key statutes including the Pakistan Penal Code 1860 (PPC), Code of Criminal Procedure 1898 (CrPC), Qisas and Diyat Act 1997, The Criminal Law (Amendment) Act 2004, and Anti-Terrorism Act 1997 need to be considered. Along with these statutes, there are some key judgments of the honorable Supreme Court of Pakistan and the provincial High Courts in this area, which hold enormous significance.
Under the regime of late General Zia ul Haq, the legal system of Pakistan had gone through firm Islamization both socially and legally. Article 2A of the Constitution of the Islamic Republic of Pakistan provides for the superiority of Islamic law, as enshrined in the Objectives Resolution. It was during that time that the Council of Islamic Ideology and Federal Shariat Court were formed. But contrary to common belief it was the superior judiciary and not Zia ul Haq’s administration that introduced the concept of qisas and diyat in the Pakistan Penal Code. On October 1st, 1979, the Peshawar High Court in Gul Hassan Khan vs. The Government of Pakistan[2] declared Sections 299 to 338 of PPC 1860 to be repugnant to Islam as they did not allow qisas or diyat for both grievous injury and homicide. The court further held that Section 345 CrPC 1898 was also repugnant to the teachings of Islam since it did not consider the offences “compoundable”. The effects of this case were long lasting with conflicting judgments, however a few years later the above decision resulted in the enactment of the Qisas and Diyyat Act 1997.
As per this Act, Section 302 PPC for Qatl-e-Amd (intentional homicide) now required a higher degree of proof as defined under Section 304 PPC either through voluntary confession or through testimony of two eye-witnesses. Section 309 and 310 of PPC gave the walis or legal heirs of the victim, a right to waive qisas and pardon the offender or accept compensation, making murder compoundable.
This new law was highly favorable to the defendants involved in honor killings as they could have been forgiven by either the next of kin of the victim or could pay blood money to escape imprisonment. Before this amendment in law, honor killing was dealt with under the concept of provocation; this acted as a defense for intentional murder. The example of application of provocation can be seen in the case of Mohammad Saleh vs. The State[3].
After the enactment of the Qisas and Diyyat Act 1997, the courts appeared to be more perplexed with the two different regimes in deciding what should be the applicable law for the crimes committed in the name of honor as the Act was silent in that regard. This is clearly evident in the judgment of Sardar Mohammad vs. The State[4] in which the court concluded that killing in the name of honor would not amount to murder and therefore acquitted the father of the deceased who killed his own child to preserve the honor of his family. As the court equated the defense of provocation with self-defense (which acts as an affirmative defense) as compared to partial defense (which does not permit complete acquittal).
It was this absurd reasoning that resulted in an escalation of such offences. It is common understanding that law in this area is not deterrent rather it is protective for those who kill in the name of karo kari, siyah kari or other similar customs or practices. However, in 2004, due to immense pressure by international human rights organizations and the civil society in Pakistan, a new legislative amendment was enacted. The Criminal Law (Amendment) Act 2004 created a specific offence of honor killing (punishment for which was 14 years imprisonment) and amended section 305 PPC. This amendment barred the accused to act as wali if the murder was committed under the pretext of honor.
It is pertinent to note that the most significant change was in Section 311 PPC, which dealt with the waiver of compounding the right of qisas and stated the following: “Provided that if the offence has been committed in the name or under the pretext of honor, the imprisonment shall not be less than 10 years[5]”. This was based on the principal of fisad-fil-arz (mischief on earth). With these changes in law, the matter seemed much more settled.
The effects of this new enactment were reflected in an important judgment of the Supreme Court in Muhammad Ameer vs. The State [6] which stated that, “Grave and sudden provocation may not be available to an accused who having taken plea of ghairat and family honor committed to crime with premeditation.”
It was necessary to understand this historical background in order to understand the current state of law, or to otherwise reach the Achilles heel of this problem. Now I would shed some light on the approach the courts were taking before the enactment of this recent amendment. The first case that needs to be considered is from 2012, Khadim Hussain vs. The State[7], in which Justice Muhammad Hashim Khan held that, “Killing of women on the pretext of siyah kari, was un-Islamic, illegal, unconstitutional and an offence against the state and society…” Although the 2004 amendment had made honor killing a specific offence and non-compoundable, the courts were still dealing with it under the broader category of homicide. But wherever possible, the victim’s heirs were not given a choice as the prosecution added up the charges under the Anti-Terrorism Act[8]. The state would prosecute the perpetrator while Section 345 of Cr.PC for compoundable offences would not apply.
There were still much confusion in the application of the law. On one hand there were conflicting previous judgments of courts where provocation acted as a complete defense at times for murder, while on the other hand the maximum punishment for a premeditated murder was 14 years[9]. And not to forget the confused state of affairs where the prosecution at times had to rely on the Anti-Terrorism Act in cases of honor crimes. This is exactly the scenario in the Qandeel Baloch case, but because of its high-profile nature due to the pressure from media and public at large, the state is prosecuting this case based on both the concept of fisad fil arz and anti-terror charges.
Moving on to the recent amendment, a little research into the new law would narrate its history. The Anti-Honor Killing Law (Criminal Amendment Bill) 2015 was originally piloted by PPP legislator Sughra Imam and passed by the Senate in March 2015. Even with the name, it is clear that its an amendment to the existing law and not a separate regime, unlike the Anti-Terrorism Act. It also needs to be noted that the original date of presentation of this Bill to the Senate was February 24, 2014, and it took 2 years to get it passed by the National Assembly. The biggest change this amendment has brought is that the option of compoundablity has been finished in cases of honor killings and punishment has been set at life imprisonment instead of 14 years previously laid down under Section 311 PPC.
As much as I ought to commend this new amendment with a much stricter punishment, there are many loopholes, which need to be considered. Firstly there has been no distinction drawn between honor killings and provocation. The legislator should have explained this. A similar issue was resolved in the UK with an enactment of the Coroners and Justice Act 2009[10] as well as in the case of R v Clinton[11] – it is now settled law that crimes of passion or honor will have no tolerance taking refuge under the concept of provocation.
The second issue is a procedural one; as in the words of Latham CJ in Greene v The Queen, “The thought of man is not triable, for the devil himself knows not the thought of man”; the issue here now is how would it be determined that the defendant killed the victim in the name of honor? Previously the accused used to raise this as part of his or her defense of provocation. Now since the defense would know that charges of honor crimes are non-compoundable and have life imprisonment if found guilty, it would be unlikely for the defense to bring up the issue of honor killing at all. This could be explained in a simple example of the Qandeel Baloch case whereby her brother, although having mens rea to kill under the pretext of honor, after killing claims that he killed due to some financial dispute. This would bring back the offence in normal circumstances of general homicide and would thus make it compoundable. The victim’s heirs would then still have the option of remission or diyat.
There are no perfect laws in any legal system, however, if more legal opinions had been sought by the Parliament before passing such an important piece of legislation to cater to such a problematic issue, it’s efficiency could have been proliferated.
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References:
[1] Human Rights Commission of Pakistan, the state of Human Rights in Pakistan-2014 (HRCP,Lahore 2015)
[2] PLD 1980 Peshawar 1.
[3] PLD 1965 SC 446
[4] MLD 1997 3045
[5] Cr Law Amendment Act 2004, (PLJ 2005 Fed. 207)
[6] PLD 2006 SC 283
[7] PLD 2012 Balochistan 179
[8] Section 6(2)(g) of Anti Terrorism Act 1997
[9] Section 311 Pakistan Penal Code
[10] Section 55(6) Coroners and Justice Act 2009 expressly excluded sexual infidelity acting as a trigger for loss of self control changing the previous position of common law regarding provocation.
[11] [2012] EWCA Crim 2
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