This lesson discusses international and domestic laws that relate to and/or are violated by the practice of honour killing and a parallel justice system.

A. Pakistan's international obligations

Pakistan is party to numerous international conventions that include specific provisions on the rights of women, the rights to due process and fair trial, all of which are violated by the practice of honour killings.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

Articles 5 & 2 state that state parties should take all "appropriate measures to modify ?social and cultural patterns" in order to eliminate prejudices and customs based on inferiority or gender-based stereotyped roles and "agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women."

According to article 4, custom, tradition or religious reasons may not be invoked as grounds for not meeting obligations under the CEDAW.

The Convention on the Rights of the Child (CRC)

Article 3(1) says "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration."

Article 34 mentions that "State parties undertake to protect the child from all forms of sexual exploitation and sexual abuse."

Article 35 further states that governments must "take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic of children for any purpose or in any form."

The Convention on the Elimination of All Forms of Discrimination

Article 16 stipulates that "State parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of man and women: (a) the same right to enter into marriage; (b) the same right to freely choose a spouse and to enter into marriage only with their free and full consent; (c) the same rights and responsibilities during marriage and its dissolution".

The Universal Declaration of Human Rights (UDHR)?lt;/i>

Articles 1 & 2 state that "All human beings are born free and equal in dignity and rights" and that everyone is "entitled without distinction to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, colour, sex, language".
Article 3 states that "everyone has the right to life, liberty and security of the person."

Article 5 states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Article 7 says that "All are equal before the law and are entitled to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."

Articles 8 & 10 elaborate on this right, stating that everyone has the right to effective remedies and "to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."

Similarly, article 11 mentions that all those charged with penal offences have "the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

Under international human rights law, and particularly under the UDHR preamble and the Vienna Declaration, the state is obliged to ensure the enjoyment of rights by everyone living in its jurisdiction. Therefore, if in a collapsed rule of law situation as exists in Pakistan, informal bodies such as jirgas/panchayats carry out state functions, the state must ensure that the role of such bodies is clearly defined in the legislation, to prevent any exaggerated social and political authority by these bodies. Additionally, if the state fails to prevent these bodies from violating human rights, it is legally and morally responsible for any such violations. It hence follows that the government of Pakistan is legally liable for the honour killings being committed under its jurisdiction.

B. Pakistan's legal framework

I. An overview of jirgas and how they function

Jirga law is rooted in tribal customs and in the power of elders; contrary to popular belief, the jirga tradition has no relationship to religion. In fact, many so called customs and interpretations of Islamic laws are based on neither religion nor tradition. Most commonly, it is the disputes related to zar (money), zin (women) and zameen (land) that are settled through the jirga. The jirga is a tribal council that mediates between the conflicting parties according to principles of tribal justice, which are allegedly well defined, although not codified. The jirga consists of the elders of the tribe and either meets on an ad hoc basis or regularly. The members of the jirga are always men and the representation of women is not permitted. Even when women are the victims, they are not heard. In rare instances, male family members of the female victim will represent her interests, but even in such cases all decisions are made without consulting the woman herself. Jirga verdicts are announced and carried out by social pressure.

Although illegal, the jirga is a powerful institution within the Pakistani informal justice system, which is influenced by wealthy clans, biased against the women and poor, and condoned by the Pakistani police. Even state officials have used jirgas to solve criminal cases pending in court. Many jirga leaders themselves are parliamentarians or members of the civil administration, or have family links to the administration. In their official capacity they talk about human rights for all, yet in their constituencies they participate in tribal courts. While speaking about 'good governance' and 'real democracy' in one forum, in another they are handing down punishments in violation of basic human rights principles.

As mentioned previously, according to jirga law, when a woman is believed to have 'dishonoured' her family, all those responsible should be killed or otherwise punished. However, the vague notion of honour has led to almost every act of disobedience amounting to 'dishonouring' the family, a fact that was clearly illustrated in the case of the two teenage girls killed for visiting their grandmother without permission, described in Lesson 1.

Following from this expansion of what undermines 'honour', is the way that these killings are now used for personal vengeance also, as shown in the case of the nephews killing their aunt for her refusal to sell them her property, also described in Lesson 1. The jirga system condones this as it requires no evidence and does not punish the perpetrators.

The reason for this is that the jirga sense of justice is not synonymous with truth and punishment, but rather with reconciliation of the powerful and social stability and/or control. This being the case, evidence and other legal principles have no place within a jirga hearing. What is important is reconciliation brought about by compensation, monetary or otherwise, including the handing over of a woman or girl. This is linked to the fact that compensation is imposed collectively on the perpetrator's family, not on the perpetrator alone.

II. Domestic law

The 1979 Constitution of Pakistan guarantees women's equality before the law. Articles 7 & 25 explicitly define the equality of women with men and their entitlement to equal protection of the law and with equal opportunities disregarding sexual orientation.

Article 8 of the constitution also states that "Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void."

However, the Qisas (retribution) and Diyat (compensation) law, which covers offences relating to physical injury and murder, does not conform to the standards laid out in the constitution. Under this law, the victim or the legal heirs of the victim may claim retribution/compensation, or may pardon the accused. The exceptions to the use of qisas as under section 306 of the Pakistan Penal Code (PPC) include when the offender committed the crime 'whilst deprived of the power of self-control by grave and sudden provocation', or when the offender causes the death of his child/grandchild.

In the case of honour killings qisas is generally not applicable as the offenders plea that death was caused in 'grave provocation' caused by the alleged immoral conduct of the victim. Also, in many cases the offenders are the parents (and close relatives), which again means qisas is not applicable. Furthermore, section 309 & 210 of the PPC reads that the legal heir of the deceased may waive his right of qisas or may compound (withdraw) the offence in return for compensation. The large majority of honour killing cases involve the family of the victim waiving their right to qisas or withdrawing their complaint in return for compensation, both instances ensuring that the perpetrators are not prosecuted and go free.

Section 311 of the PPC however, stipulates that notwithstanding anything contained in section 309 or 310, the court may in its discretion, having regard to the facts of the case, punish an offender against whom the right of qisas has been waived with imprisonment of up to 14 years. Similarly, section 302 (3) states that the offender should be punished by imprisonment for up to 25 years in cases where qisas is not applicable. In practice though, the sentence is always very lenient. While the law of qisas and diyat stipulates that handing over a woman/girl is not a valid form of compensation, it does not explicitly prohibit the practice. In reality, the practice of compensation settlements including women is common and accepted by the courts.

The Qisas and Diyat law does not regard the serious crimes of murder and physical injury as offences against the state, but against the individual. For this reason, it is completely up to the individual to choose an action against a crime committed against them, while the state's role becomes merely guide-like.

Questions For Discussion

1. Discuss the main drawbacks of the existing laws in Pakistan relating to women and honour killings. If you were to rewrite them, how would you safeguard the protection of women's rights?

2. Are there any advantages of the jirga system as opposed to the official justice system? Do you know of similar alternative justice systems in other countries? Discuss how these systems can be abolished effectively, or how they can be comprised into the official legal systems.