Image Source: Morocco World News, ‘Where is the Honor in ‘Honor Killings’?’ (MWN, 4 July 2020) Where is the Honor in ‘Honor Killings’? (moroccoworldnews.com) accessed 25 June 2022.
Introduction
Official statistics show that family members still murder thousands of Pakistani women.[1] The actual numbers on the ground could be even higher. All of this because of a tribal tradition that has been haunting Pakistan’s society for decades – the so-called custom of “Honour Killings”. An honour killing, in essence, represents the “right” of a family to commit violence against another member of that family if they believe that a certain action of that person has violated and impacted the dignity and honour of the family.[2] The tradition is not aimed against a certain gender, however, as research points out, women are most often the victims. This is connected to the recent wave of women in Pakistan fighting against a patriarchal that has, from the outset, significantly limited their independence and silenced them. To provide context, the main triggers of honour killings include pre-marital intercourse; infidelity; and marriage without the support of the family but can also extend to rudimentary actions such as being in public without family supervision.[3] The question arises: how can Pakistan solve this problem?
The Law
In 2004, the Pakistan Penal Code (Act XLV of 1860)[4] was amended to address the brutality of honour killings. According to the new Amendment Act, “honor killing” was labeled an “offense committed in the name or on the pretext of honor” … “or on the pretext of karo kari sivah kari[5] or similar other customs or practices”.[6] The Amendment was intended to support for resistance against such vengeful acts. It did so by, inter alia, introducing a prison sentence of 25 years for anyone found guilty of having committed an honour killing. However, this did not solve the problem. According to the Human Rights Commission of Pakistan, between 2004 and 2016, around 22 honour killings cases were reported weekly; a total of 15,000 cases were reported in total.[7]
In 2016, a Pakistani celebrity, Qandeel Baloch, was murdered by her brother on the premise that she had disrespected her family by posting inappropriate pictures online and being in the company of men.[8] This high-profile case received significant domestic and international attention, finally pressurising the Pakistani government to reformulate a better legislative framework. By the end of the year, the 2016 Criminal Law Amendment (Offences in the Name or Pretext of Honor) Act was passed.[9] Nevertheless, the 2016 Amendment has not proved to be a substantial fetter. As the Human Rights Commission of Pakistan points out, in 2021- five years after the passing of the Act- there were over 200 honour killing cases across Pakistan, with close to 3,000 rape cases and almost 10,000 kidnapping cases.[10]
The Loopholes
The Criminal Law (Amendment) Act amends Sections 299, 302, 305, 308, 310, 311, 316, 324, 337, 338 of the Pakistan Penal Code (PPC) and Sections 345, 401 of the Code of Criminal Procedure (CrPC) to ensure effective prosecution of cases pertaining to honour killings. Both the 2004 and 2016 Amendments failed significantly owing to loopholes that worked in the convict’s favour. The 2004 Amendment allowed the possibility of non-prosecution in exchange for amenities, as well as the chance to avoid a prison sentence through the forgiveness of the victim’s family. This is where the irony of the Amendment manifests and its actual unwillingness to protect Pakistani women; the family that condoned and even encouraged the murder of these women is the very same structure that is allowed to forgive itself and all its members.[11] The 2016 Amendment “closed” the abovementioned loopholes except one; a convicted person is still able to argue that they did not commit a murder on the basis of honour (even if a viewing of the matter’s facts says otherwise).
Moreover, honour killing cases are investigated in the same manner as murder cases where witness testimonies have a significant impact. In the case of honour killings, the testimonies may not be truthful as this kind of matter is resolved within a family. For that reason, there is a need to evaluate the circumstantial evidence as well and make a conclusion about what type of crime it was solely based on evidence.[12]
The Issue
Pakistan is ahead of a large number of Middle Eastern countries regarding honour killing legal frameworks. In Jordan, Article 340 of the Jordanian Penal Code No. 16 of 1960 still provides penalty reduction for honour crimes, even though female suspects are granted the same reduction.[13] In Syria, according to Article 548 of the Syrian Penal Code No. 148 of 1949, men who commit honour killing are punished by a penalty of a minimum of 2 years in prison.[14]
The issue then is clearly not in the Pakistani Penal Code (which does not provide a reduced punishment for murderers), but in the loopholes within it that can be taken advantage of: mainly, being able to turn an honour killing into a regular murder. This is also the issue in India, where honour killing is treated as murder as defined under Section 300 of the Indian Penal Code 1860 and punishable under Section 302,[15] as was stated in a counter affidavit filed by the Union of India and others in the case: Shakti Vahini Vs. Union of India and others.[16]
Addressing Loopholes
The first step in appropriately adjusting Pakistan’s law must necessarily include an amended definition of homicidal provisions that categorises honour killings as a form of murder. Doing so would ensure that honour killings are no longer defined it on terms that allow such acts to be cloaked with ill-held social views. With this alteration, courts will have an easier time classifying “honor killing” instances and making decisions on that basis. Law enforcement authorities would have more clarity if the crime of honour killing were treated as a separate crime. The Istanbul Convention, The Council of Europe Convention on Preventing and Combating Violence against Women (CETS No. 210) [2011] attempts to address the loopholes discussed above by defining gender-based violence, which is defined under Article 3.d, as “violence that is directed against a woman because she is a woman or that affects women disproportionately,” as a global standard against honour crimes. Crimes done with an ulterior motive beyond the immediate consequences are referred to as “honour crimes.” The reestablishment of family “honour,” the desire to uphold tradition, or conformity with the deemed religious, cultural, or customary standards of a specific society may be examples of this ulterior objective.[17]
A system of joint liability must also be implemented. Typically, there are groups engaged that first call for murder in the name of “honour,” and then other people carry them out. Thus, the implementation of the “joint liability” system will make both parties equally culpable and will effectively lessen honour-killings. This amendment makes it simpler to penalise persons who commit crimes out of “honour.” The Convention on the Laws of Criminal Justice aims to stop judges from pardoning crimes committed in the name of alleged “honour.” If a family member or two or more people work together to conduct the crime, The Convention on the Laws of Criminal Justice mandates a higher sentence. According to Article 46, punishments in certain situations must consider aggravating factors. This clause targets crimes committed by family members who frequently plan to harm the victim. According to Article 42, paragraph 2 of the Convention on the Laws of Criminal Justice, it is also made explicit that when a family member who has not yet reached the age of criminal responsibility is chosen to commit the crime, the crime’s instigator—often the family patriarch or older brothers—remains responsible for incitement.[18]
Further Provisions
Honour killings are prohibited everywhere in the globe, yet many legal systems have low punishments for individuals who carry them out because society views the offenders as upholding traditional values. Legal loopholes that let murderers get away evidence leniency. This is where international laws and conventions play their role.
Articles 22 and 24 of the Istanbul Convention impose extra obligations on state parties to prevent such crimes, including the need to set up services for women who might be murdered by their relatives. The Istanbul Convention also recognizes the special role that adults can play in securing the safety of children and teenagers. As a result, Articles 27 and 28 demand that state parties encourage each of these parties to inform the appropriate authorities so that appropriate action can be taken. The Istanbul Convention stipulates that once a situation is brought to the attention of the authorities, all authorities must work together to evaluate the risk to a specific woman who is threatened and create a safety plan for her. Naturally, any such risk-assessment must consider the likelihood of life-threatening violence and whether firearms will be used. The goal is to make certain that a multi-agency network of experts is established to safeguard high-risk victims (Article 51).[19]
The Dutch government aids foreign parliaments in their legislative endeavours as many international statements and agreements that denounce the practice of honour killing. However, as is now widely recognized, these international organisations can only provide recommendations and lack enforcing powers in the way that domestic legal frameworks do. Important international agreements and conventions, like the CEDAW and its Optional Protocol,[20] must be ratified and acceded to by states. States Parties must also make sure that the penal codes that support honour killing are changed to fulfil those commitments.[21]
Additionally, the Istanbul Convention has made provisions to protect women who are at risk of “honour crimes” in a state that is not a signatory to the agreement. Often, such women face peril that forces them to escape their nation and seek asylum in a state that has ratified the Convention. States parties are obligated to acknowledge that gender-based violence, such as so-called “honour crimes,” may amount to persecution and may result in refugee status or leave to remain in the nation to protect them from severe damage. Articles 60 and 61 address this difficult problem by asking states parties to recognise gender-based discrimination, interpret the 1951 Convention Relating to the Status of Refugees in a more gender-sensitive manner, and not deport anyone to a nation where their life or freedom is in danger.[22]
To end, we cite Arumugam Servai v. State of Tamil Nadu: “… there is nothing honorable in honor killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder…”.[23]
[1] Honour Based Violence Awareness Network, ‘Statistics & Data’ (HBVA) <http://hbv-awareness.com/> accessed 24 June 2022.
[2] Daniele Selby and Leah Rodriguez, ‘How Activists Helped Change Pakistan’s Honor-Killing Law’ (Global Citizen, 9 April 2019) <https://www.globalcitizen.org/en/content/honor-killings-case-study/> accessed 24 June 2022.
[3] Honour Based Violence Awareness Network, ‘An Overview’ (HBVA) <http://hbv-awareness.com/honour-based-violence/http://hbv-awareness.com/> accessed 24 June 2022.
[4] Pakistan Penal Code (Act XLV of 1860)
[5] Means “Black Man, Black Woman” and includes the labeling of a woman as “Kari” and killing her for alleged violations of honor; sometimes the “Karo” or “black man” is also killed.
[6] Pakistan Penal Code, 1860 and the Code of Criminal Procedure, 1898, ACT No. I of 2005.
[7] Sadiq Bhanbhro, ‘Pakistan Again Faces Questions Over ‘Honour’ Killings as Brother Acquited of Social Media Star’s Murder (The Conversation, 3 March 2022) <https://theconversation.com/pakistan-again-faces-questions-over-honour-killings-as-brother-acquitted-of-social-media-stars-murder-177174> accessed 24 June 2022.
[8] Shamil Shams, ‘Pakistani Parliament Passes Landmark Anti-‘Honor Killing’ Bill (DW, 6 October 2016) <https://www.dw.com/en/pakistani-parliament-passes-landmark-anti-honor-killing-bill/a-35983522> accessed 24 June 2022.
[9] Ibid.
[10] Sadiq Bhanbhro, ‘Pakistan Again Faces Questions Over ‘Honour’ Killings as Brother Acquited of Social Media Star’s Murder (The Conversation, 3 March 2022) <https://theconversation.com/pakistan-again-faces-questions-over-honour-killings-as-brother-acquitted-of-social-media-stars-murder-177174> accessed 24 June 2022.
[11] Aleena Khan, ‘Honour Killings in Pakistan: Judicial and Legal Treatment of the Crime: A Feminist Perspective’ Volume 7, LUMS Law Journal <https://sahsol.lums.edu.pk/law-journal/%E2%80%98honour%E2%80%99-killings-pakistan-judicial-and-legal-treatment-crime-feminist-perspective> accessed 24 June 2022.
[12] Ibid.
[13] Jordanian Penal Code No. 16 of 1960
[14] Syrian Penal Code No. 148 of 1949
[15] Indian Penal Code 1860
[16] Shakti Vahini Vs. Union of India and others [2018] 7 SCC 192
[17] The Istanbul Convention, Domestic Violence and Human Rights Ronagh J. A. McQuigg
[18] Honour Killings: The Law It Is and the Law It Ought to Be, Jeba Boktiar Mondal and Pallavi Singh
[19] Istanbul Convention, CETS No. 210 of 2011
[20] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13,
[21] Preventing honour-based violence, Government of Netherlands < https://www.government.nl/topics/honour-based-violence/preventing-honour-based-violence> accessed 26 June 2022.
[22] 1951 Refugee Convention or the Geneva Convention of 28 July 1951
[23] Arumugam Servai v. State of Tamil Nadu [2011] 6 SCC 405
Bibliography:
Arumugam Servai v. State of Tamil Nadu [2011] 6 SCC 405
Aleena Khan, ‘Honour Killings in Pakistan: Judicial and Legal Treatment of the Crime: A Feminsit Perspective’ Volume 7, Lums Law Journal <https://sahsol.lums.edu.pk/law-journal/%E2%80%98honour%E2%80%99-killings-pakistan-judicial-and-legal-treatment-crime-feminist-perspective> accessed 24 June 2022.
Daniele Selby and Leah Rodriguez, ‘How Activists Helped Change Pakistan’s Honor-Killing Law’ (Global Citizen, 9 April 2019) <https://www.globalcitizen.org/en/content/honor-killings-case-study/> accessed 24 June 2022.
Honour Based Violence Awareness Network, ‘An Overview’ (HBVA) <http://hbv-awareness.com/honour-based-violence/> accessed 24 June 2022
Honour Based Violence Awareness Network, ‘Statistics & Data’ (HBVA) <http://hbv-awareness.com/> accessed 24 June 2022.
Honour Killings: The Law It Is and the Law It Ought to Be, Jeba Boktiar Mondal and Pallavi Singh
Indian Penal Code 1860
Jordanian Penal Code No. 16 of 1960
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Shakti Vahini Vs. Union of India and others [2018] 7 SCC 192
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Authors:
Leila-Maria Faddoul (Research Assistant, RCIL&HR)
Amina Zekovic (Research Assistant, RCIL&HR)
Hamza Haroon (Research Assistant, RCIL&HR)