Girls in the River: Pakistan’s Struggle to End Honour Killings
Oscar winning film, A Girl in the River, tells the story of Saba Qaisar, who was engaged to someone her uncle forbade her to marry. Saba ignored his wishes and she ran away from home and married. Her father and uncle then visited Saba at her in-laws’ house and requested, in order to restore the family’s honour, that Saba return home and for her new husband to come and ask for her hand in marriage. The family claimed that this would restore their honour. But instead of returning to the family home, her father and uncle put Saba in a car, took her to a wooded area, beat her, shot her in the face and threw her in a river. She managed to survive and call the police. Saba’s father and uncle were arrested and jailed but Saba was pressured by relatives and village elders to forgive them under Pakistani law, which allowed killers who had been pardoned by family members to avoid punishment. Saba relented, forgave them and her father and uncle walked free.
The film and its Oscar nomination, put Pakistan’s failure to stop honour killings in the spotlight. In response to criticism at home and abroad, the Pakistani government amended its Penal Code, imposing harsher punishments and closing a legal loophole allowing heirs to pardon perpetrators who are in most cases a relative. Although the 2016 Amendment was a positive step towards eradicating honour killings, these murders continue and further governmental action such as ensuring impartial police investigations and establishing governmental services for vulnerable women, is necessary.
Honour Killings and Colonial Rule
The first laws pertaining to honour killing in Pakistan are rooted in British colonial rule. In 1835, the British established a law commission to examine the issue of honour killings. The commission sympathized with men who were “dishonoured” by their wives, sisters and daughters. It concluded that if a man could prove he had killed under such provocation, the killing should not be deemed a murder but the lesser offence of manslaughter.
A series of cases followed in which men avoided severe penalties if they established they had killed under the provocation of having been dishonoured by a wife, sister or daughter. For example, in Munir Ahmad v. State, the offender had killed the suspected mistress of his wife after being called a man without honour. The Court deemed that the man had been provoked and sentenced him for the lesser offence, six years and three months of imprisonment, the time in which he had already been incarcerated. In the case of Niamat Ali v. Muhammad Yaqub, the Court declined to sentence the accused who had killed his wife to murder because “the respondent had lost his control on seeing the deceased indulging in immoral activity.”
1990 Islamic Amendments to the Penal Code
In 1990, Pakistan replaced the Penal Code of 1860 and implemented three elements of Islamic law: wali (heirs of the victim), qisas (retaliation/punishment) and diyat (blood money/forgiveness), into the Penal Code. The effect of these amendments was to enable men to kill sisters, wives and daughters to restore what they believed to be lost honour, whilst avoiding punishment for their crimes.
Understanding wali is key to understanding application of Pakistan’s Penal Code. The question of who can be wali of a victim is imperative because of the role wali plays in convicting the accused.
In case of intentional murder, wali has the power to “voluntarily and without duress, waive the right of qisas (punishment for causing bodily injuries or a death)” and any wali who has chosen not to prosecute the offender is entitled to diyat (compensation payable to the heirs of the victim by the offender). Article 306 of the Penal Code stated that a willful murder would not be punished when an offender causes the death of his child or grandchild, when the legal heir of the victim is a direct descendant. This meant that the murder of an individual who is a “direct descendant” of the offender, went unpunished. In the case of a wife who had been murdered by her husband, the offender was exempt from qisas (punishment) if the couple has children since the child as “heir of the victim,” would be a direct descendant of the husband.
The Penal Code also gave the victim’s legal heir a right to forgive the offender’s crime in exchange for monetary compensation for pardoning the one who has committed the homicide. The exchange of diyat for a pardon was most commonly used for family members to pardon perpetrators who had killed their wives, sisters or mothers.
Criminal Law (Amendment) Act of 2016
In the wake of the publicity surrounding A Girl in the River and the murder of model and social media celebrity Qandeel Baloch by her brother for, in his words, “bringing disrepute to the family’s honour,” former Pakistani Prime Minister Nawaz Sharif proclaimed his commitment to eliminating the honour killing by amending the Penal Code to close the legal loopholes, which were allowing killers to go unpunished. In October 2016, the parliament passed a bill which mandates life imprisonment or the death penalty for convicted murderers, whose motive for killing was supposed restoration of honour. The Criminal Law (Amendment) Act of 2016, introduced a new term into Pakistani law, fasad-fil-arz, which is defined as committing a crime “in the name or on the pretext of honour” and mandates either a death sentence or life imprisonment be imposed upon those who committed such crimes. With respect to wali pardoning the accused and accepting diya, the amendment provides that those guilty of honour crimes will be sentenced to life imprisonment regardless of whether a pardon is granted by the victim’s legal heir.
On its face, the Amendment appears to be a step towards the eradication of honour killings; however, it has a number of faults. Judges, for example, have wide discretion under the Amendment to decide whether a particular killing is simple murder or a murder in the name of honour and whether to impose a life sentence rather than the death penalty. Moreover, perpetrators can claim their actions were motivated by factors other than restoration of honour in order to avoid the mandatory sentences of life or death. Thus, if a man is accused of an honour crime, yet denies his motive was based on the grounds of honour, he faces a sentence of up to twenty-five years but could be pardoned by the victim’s family because diya was only eliminated from the Penal Code for honour killings, not plain homicide.
In the two years since adoption of the Amendment, the killing of women in the name of honour continues. It is clear that the threat harsh penalties is not deterring the murders. Human Rights Watch reported a spate of honour killings in 2017 but noted that there are no credible official figures on such murders because they often go unreported or are passed off as suicide or natural death by members of the victims’ families. One case exemplifies the problem Pakistan faces in its effort to end these murders. It involved the killing of Naghma, a 13-year-old girl who was accused of engaging in inappropriate behavior with men and was sentenced to death by the tribal council in Khyber agency. Pakistani security forces rescued the girl and returned her to her family, who murdered her.
Pakistan’s Obligations under International Law
Pakistan ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1996. CEDAW obligates Pakistan to incorporate the doctrine of gender equality into its constitution, to endorse legislative measures that enshrine the legal protection of women and ensure institutions “take all appropriate measures to eliminate discrimination against women.” In addition, Articles 15 and 16 mandates Pakistan: “accord to women equality with men before the law” and ensure women have the right to “freely choose a spouse and enter into marriage.”
The mere passing of the 2016 Amendment does not fulfill Pakistan’s obligations under CEDAW. Further measures are required to eliminate bias against women in marriage and in family relations. In addition, a significant number of honour killings (such as the attempted murder of Saba Qaisar), arise in the context of Pakistani women asserting their right to choose their own spouses. Pakistan must address this legislatively and through educational measures.
In order to fully comply with its international obligations Pakistan must pass regulations ensuring that police investigate “honour” killings with impartiality, without bowing to pressure from religious and local leaders. Legislation is also necessary to ensure women and girls have access to safe emergency shelter and other services such as security protection when they report threats from their family. Finally, the government should issue intelligible guidelines on mandatory safety assessments conducted by law enforcement before girls are released back into the custody of their relatives.
The roots of Pakistan’s complicity in the murder of its daughters, sisters and wives has its roots in British colonial rule. However, the 1990 additions of the Islamic concepts of wali, qisas and diyat to the Penal Code, has exacerbated the situation by undermining judicial procedures. Homicide is treated as a private matter with the wishes of family members prioritized over judicial authority. Although the Criminal Law (Amendment) Act of 2016 classified honour killing as special kind of murder requiring a mandatory penalty of life or imposition of the death penalty, offenders are still avoiding punishment and future killers are not being deterred. Perpetrators can simply assert that they did not kill for honour and be pardoned by the legal heirs of the deceased.
Further complicating the matter is the fact that the practice has a relatively high approval rating (a 2014 Pew Research poll said 4 in 10 Pakistanis agreed with the practice), among the population, which makes harsher sentences for those convicted of the crime, unpopular and thus, often not imposed. In fact, when the 2016 Amendment was adopted only one-third of the representatives in Parliament chose to attend. A conservative senator, Hafiz Hamdullah, expressed the sentiment of many, stating that the government was trying to enforce Western values in Pakistan. However, when it adopted CEDAW in 1996, Pakistan bound itself to a pledge; to protect the rights of girls and women from their fathers, uncles and husbands. The Pakistani government must, therefore, act quickly and decisively to ensure that no interpretation of religious or cultural norms prevails over basic rights for women and girls.