honor6

Judges are part of the society in which they live, reflecting many of its cultural values and moral norms but also many of its prejudices. Nowhere is this more visible than when it comes to gender equality prescribed by the Constitution of Pakistan. To rise above prejudice is a requirement of judges' office but in reality this does not always take place. In fact, Pakistan's judges, at the lower levels of the judiciary but even sometimes at the higher level, tend to reinforce discriminatory customary norms rather than secure constitutionally guaranteed gender equality. "Culture continues to interface with law beyond its formation. Since the interpretation of law cannot be detached from the specific cultural context in which it is located, norms and accepted practices profoundly affect the application and interpretation of law. ... In societies in which the concept of honour killings is socially validated, the formal legal system will reflect this validation - in spite of the textual provision of the law..."⁹⁰

The gender bias of many judges is evident in the way in which they use the defence of honour to mitigate sentences in cases brought before them.

Women activists and lawyers practising in various parts of Pakistan confirm the existence of these attitudes on the part of judges. A woman lawyer and activist in Islamabad, Nahida Mehboob Elahi, told Amnesty International, "Judges are ready to believe the worst of women, and assume a paternal role towards them, as though they were incapable of deciding for themselves. So often they send women back to their tormentors and believe that is the best for the women. ... Mitigating circumstances are usually taken into account for men but never for women."

Other women lawyers in Karachi similarly state: "The courts tend to support women who conform to the role laid down for them within the patriarchal structure, but judgmental bias is evident in decisions where the court is dealing with women who do not conform, for example those who, it is alleged, have committed adultery, who are then considered to be immoral women not requiring the protection of the court or of society."⁹¹

Similarly human rights lawyer Hina Jilani in Lahore states: "Women's right to liberty is restricted in the name of modesty, protection and prevention of immoral activity."⁹² Women recovered after alleged abductions and women whose marriage to men of their choice was challenged by their fathers are usually placed in the custody of state-run institutions until the courts have decided the issue, treated by the court as 'crime property': "All this is done in the name of social morality. Courts have been known to refuse issuance of the writ of habeas corpus seeking the liberty of a woman on the grounds that her right to liberty is subject to conformity to social norms, and any suspicion that she may not abide by the standards of morality can disentitle her from receiving relief in equity."⁹³

Parts of the judiciary appear convinced that any interference in the patriarchal structure of society will disrupt society and that it is its duty to guard against such upheaval. However, this attitude ignores that the existing structure of society perpetuates discrimination on gender grounds which deprives one half of the population of basic rights. This points to an important issue of self-perception of judges. Justice Sabihuddin Ahmed of the Sindh High Court told Amnesty International in February 1999 that in reflecting and upholding traditional conceptions of rights, the judiciary in Pakistan was forsaking an important role which the judiciary in other parts of South Asia had adopted, where it was leading the way of reform and progress in the area of personal liberty. Courts can either choose to reflect existing and broadly accepted norms of society or they can use the law as an instrument of change.

International commitments relating to the protection and promotion of the rights of women appear little known among members of the judiciary. The Commission of Inquiry for Women noted that "ratification [of the UN Convention on the Elimination of All Forms of Discrimination against Women] was accompanied by minimum publicity for fear of an adverse reaction from certain obscurantist elements in the country... Another fear was that it would bind the government to take measures to eliminate many of the laws or discriminatory aspects in laws which had been introduced in the garb of Islamic laws, a sensitive and controversial area that most governments are extremely reluctant to touch however much they might deplore them. As a result, most members of the government, including the judicary, are unaware of the substance of CEDAW or the strategies or measures discussed therein."⁹⁴

In dealing with honour killings, the courts have usually applied the mitigation contained in section 300(1) PPC (before its removal in 1990 when the Qisas and Diyat Ordinance was promulgated), despite the fact that such killings are usually premeditated, not committed under sudden and severe provocation. Moreover they have placed a very low threshold on what constitutes provocation, thereby implicitly reiterating the prevalent tradition that men need not seek to exert self-control when it comes to women's rights to life and physical integrity.

In a case in 1983, a man who had killed his fiancee and her family due to their refusal to have an early marriage had a death sentence commuted to life imprisonment by the court on the grounds that "there are mitigating circumstances in ... that the crime is committed due to family dispute on the marriage ... The appellant felt his honour injured and this provoked him to resort to violence."⁹⁵ The court also took into account that the appellant belonged to the Brohi tribe and was "vulnerable to impulses which tend to injure their peculiar ideas of respect and honour." Almost 10 years later, in 1992, a high court argued similarly that the "impact of provocation on human frailty is to be judged in the context of social position and environment of the person concerned. The restraint which is generally shown by sophisticated persons used to modern living is hardly to be expected in the case of a villager who still regards his wife as his personal property and chattel ..."⁹⁶

In some cases, courts have taken it upon themselves to find extenuating circumstances where the murderer has not even pleaded to have been suddenly and severely provoked. Muhammad Younis killed his wife, alleging that he had caught her committing adultery. Though all the circumstances, including medical evidence spoke against this assertion, the court accepted mitigating circumstances: "The appellant had two children from his deceased wife and when he took the extreme step of taking her life giving her repeated knife blows on different parts of her body, she must have done something unusual to enrage him to that extent."⁹⁷ The reference to the two children is legally irrelevant but implicitly relied on the social norm that a man would not kill the mother of his children if he had not been seriously provoked.

In theory, the murder of divorced wives should not benefit from the 'sudden and severe provocation' exemption as honour no longer attaches to divorced women. However, courts have been exceedingly lenient in this regard. A man who killed the wife he had divorced six months earlier when he saw her coming out of a house with a strange man, was granted mitigating circumstances. The prosecution argued that he had killed her out of jealousy at the prospect of his ex-wife marrying another man, but the judge ruled that although the divorce deed had been produced at the trial, it had not been entered into the evidence and as such could not be relied upon. He therefore considered the claim that the victim was not divorced as "reasonably probable" which entitled the murderer to benefit from section 300(1) PPC.⁹⁸

After 1990, which saw the formal removal of the right to plead mitigating circumstances when the Qisas and Diyat Ordinance was promulgated, the courts have gradually reintroduced this provision in their interpretation of the law in order to lower sentences against men charged with crimes of honour.

The Lahore High Court in 1994 while hearing the bail application of Liaqat Ali who had gravely injured his sister and stabbed to death a man he found with her, was told by the petitioner's counsel that in an Islamic society a person found to indulge in zina in public deserved to be 'finished' there and then. Indeed, such murder was more of a religious duty than an offence. The judge reportedly responded: "Prima facie, I am inclined to agree with the counsel."

The Supreme Court also blurred the line between provocation on grounds of honour and premeditated murder by saying that "the reduction of sentence on the question of family honour or duty can be allowed notwithstanding the fact that an element of private revenge is involved in such cases."⁹⁹

In 1995, the Lahore High Court commuted three death sentences to life imprisonment on grounds of damage to a man's honour. Muhammad Sharif, aided by two male relatives, had killed his wife, the man she had gone to live with and that man's father. The court concluded that this case did not involve sudden and severe provocation but nonetheless had mitigating circumstances: "As such their family honour had been attacked and injured to an alarming extent and this brought shame to them which continuously egged them on to avenge their grievance and to restore ... their family honour. ... it is obvious that the crime was committed in order to avenge a family disgrace. This therefore, certainly provided a mitigating circumstance."¹⁰⁰

Marriages contracted by women against the wishes of their fathers are also by many courts perceived to impact on fathers' honour and to justify a man losing control and killing the offender. Mohammad Akram was sentenced to death for killing the man his cousin had chosen to marry against the wishes of the family. Accepting the plea that in Pakistan marrying without parental sanction raised the question of family honour, the Lahore High Court reduced his sentence to life imprisonment.¹⁰¹

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 men and women:

(a) the same right to enter into marriage;

(b) the same right freely to choose a spouse and to enter into marriage only with their free and full consent;

- Convention on the Elimination of All Forms of Discrimination against Women, Article 16

Mohammad Riaz and Mohammad Feroze were sentenced to life imprisonment for killing their sister who had married a man of her choice. The Lahore High Court reduced the sentence to the imprisonment already undergone, i.e. 18 months, saying that "in our society nobody forgives a person who marries his sister or daughter without the consent of parents or near relatives."¹⁰²

The courts seem to sometimes accommodate very remote circumstances to constitute mitigation. The Lahore High Court in 1998 commuted the death sentence to life imprisonment in the case of a man who had murdered another man who had first negotiated and then broken off his engagement with the man's niece. The court held that society viewed the breaking of an engagement without reason as a dishonour to the family of the rejected woman.

Amnesty International believes that penal sanctions commensurate with the gravity of the offence should apply to honour crimes. However, it opposes unconditionally the imposition of the death penalty, which it regards as a violation of the right to life and the ultimate cruel, inhuman and degrading punishment. The death penalty has never been shown to deter crimes more effectively than other forms of punishment, and it may actually contribute to brutalizing society. Accordingly, Amnesty International welcomes all commutation of death sentences.

In accordance with this unconditional opposition to the death penalty, Amnesty International does not think that men murdering female relatives in the context of honour killings should be given the death penalty. At the same time, it is concerned at the message the judiciary sends when it treats such murders as less serious than other murders. The acceptance of family honour as a mitigating circumstance by judges in Pakistan leading to lenient sentencing of perpetrators of honour killings has by many observers in Pakistan been held responsible for the increase of such crimes.

The then chairperson of the HRCP, Asma Jahangir, while opposing the death penalty in all cases, protested against lenient sentences for honour killings saying that such rulings were an "invitation to murder in the garb of morality ... The courts should deliver their judgments in accordance with the law rather than their perceived sense of morality. By allowing people to take the law into their own hands, the honourable courts will only promote disrespect for the law. Honour and dishonour are relative terms."

⁹⁰ Farida Shaheed, "Engagements of culture, customs and law: Women's lives and activism", in: Shaping women's lives: Laws, practices and strategies in Pakistan, Shirkatgah, Lahore, 1998, p. 65.

⁹¹ Nausheen Amin, Danesh Zuberi: "Partners in crime", in: Newsline, April 1999, p.30.

⁹² Hina Jilani, Human rights and democratic development in Pakistan, Lahore, 1998, p.143.

⁹³ Hina Jilani, Human rights and democratic development in Pakistan, Lahore, 1998, p.143-144.

¹⁰² Mohammad Riaz and Mohammad Feroze vs. the State, Lahore High Court, 1998.