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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.

LESSON 3

Ineffective rule of law

In recent years, the establishment of military courts and rule has undermined the little legal framework that exists in Pakistan. This being the case, the traditional practice of honour killings is merely exacerbated by the collapse of the rule of law throughout the country. This collapse stems not only from poor legislation, but also from ineffective justice mechanisms - the institutions responsible for enforcing the legislation and protecting the rights of the people under the country's constitution are currently in a state of corruption and decline. One of the reasons that is consistently cited for why the jirga system is still so common throughout the country, is precisely because of the ineffective and drawn out process of official justice.

If we look at the reasons for the lack of justice in the three cases illustrating the practice of honour killings described in Lesson 1, it is evident that the police were not merely inefficient, but actively worked against the victims. For instance, in the first case of the 50-year-old aunt who was killed, the police officers took no action to arrest the perpetrators even though a complaint was made identifying those responsible. This lack of action was allegedly due to the fact that the father of one of the perpetrators is a police constable. Similarly, in the third case of Shazia and Ehsan, although the couple had married in accordance with the law, the police were hostile towards them and refused them protection, their sympathies with the tribal leaders.

In contrast, the case of the two teenage girls saw more effective police action, with an investigation being conducted, three perpetrators arrested and protection given to the witnesses. However, six other perpetrators have yet to be arrested and political pressure is being put on the district investigation officer in charge of the case. This fact is highly disturbing as all the ministers and members of parliament of that particular area happen to be feudal lords. This illustrates the close relationship between jirgas and the police. 

Other systemic issues that perpetuate the breakdown of the rule of law in Pakistan are as follows:

·         Not only are the police seen as working with local jirga leaders or with magistrates, but they are also seen as biased against women and the poor, being influenced by wealthy families in the area/district. Corruption is rife within the police force, and in most cases, simply to file a complaint, the police need to be paid a 'fee'.

·         Corruption and partiality is also used to solve cases; due to the fact that the police are under-equipped and under-trained, they lack decent investigative skills and in most cases do not even bother to investigate crimes or complaints.

·         Corruption is also inevitably experienced within the courts themselves. The level of bribery ranges from giving 'fees' to clerks to process documents, to paying lawyers. Many lawyers also openly conspire with magistrates regarding cases.

·         Similarly, there are also political issues that affect the outcome of cases; for instance, the current politicization of the appointments and promotions of judges, including punitive transfers, all ensure partial rather than impartial judgements.

·         Due to poor infrastructure and staffing within the courts, amongst other things, it takes years to get through the large number of cases, which also increases the expense for the victim.

·         Access to the official justice system is highly limited to the cities and more urban areas. Those living in rural areas or remote villages have a long way to go to access the courts. When they do make their way there after a long and arduous journey, they inevitably experience delays and a long procedure, which means they must either stay near the court for some time, or be prepared to make frequent journeys back and forth. Time and expense are hence both taken up.

It is for these reasons that the Asian Legal Resource Center (ALRC) stated in its submission Pakistan: Critique of the rule of law and policing system [E/CN.4/2004/NGO/43] to the UN Commission on Human Rights in 2004 that,