Iqbal Detho, Coordinator, Human Rights Education Forum, Pakistan & Amélie Barras, Researcher, Asian Human Rights Commission, Hong Kong
Pakistani society is built on the Purdah system, which discourages contact between a man and woman who are not related because it could lead to a sexual encounter. Consequently, where such contact does occur it is therefore presumed to be sexual. Under these circumstances, the woman concerned will be subjected to questioning by her kinsfolk over her intentions and morality, as in Islam women are portrayed as the sex who must be subjected to control in body and speech. Where this control is transgressed, it violates the men’s honour and may be subjected to punishment. This is reinforced by the fact that the ‘negative’ conduct of the woman also has consequences for the reputation of the whole family, and particularly on any unmarried sisters. [i] Therefore, the behaviour of a woman is judged differently from that of a man, whereby it is likely to bring a much greater calamity onto the family than anything a man might cause to happen.
It seems that honour in Pakistan determines the faith of a family and that revenge finds its consolation in death. Unfortunately, not only do ‘honour’ crimes treat women as less than humans, but they are also used to settle disputes between families that often have little to do with the woman in question, let alone anything to do with honour.
The genesis and growth of jirgas
Although ‘honour killing’ is a crime in Pakistan, the state has done little to stem the practice. Rather than attempt to unify and rationalise the legal system, the government has left justice in the hands of the tribal judiciary, commonly known as jirga. These jirgas operate as a parallel justice system. Although many Pakistanis link honour killings and jirga rulings with religious practice, the jirga are rooted in the power of feudal lords, not Islamic doctrine.
The origin of the jirgas is embedded in the custom that came about as a result of the redefinition of crime, custom and law shaping honour codes by the British administration and Baluch tribe. This arrangement allowed people to seek justice through traditional authorities rather than resort to state institutions, even though they came under direct state authority.
The justice system in Sindh during the early years of the British military government was not much different from what it replaced. The manner of dealing with crime was as arbitrary and interpretive as that of the tribal leaders, if not more so. Whereas the province had earlier at least been under a confederacy, now it was ruled by a single autocratic regime employing martial law for that purpose. Earlier, the appellate power of life and death was in the hands of the tribal rulers; it was transferred by conquest to the military commander turned governor.
The first judicial and advocate-general of Sindh, a Captain Keith Young, wrote that there seemed to be no fixed idea of what a justice system should do or be. Captain Young remarked that it would be ‘better to have no trials at all’ than those taking place at the time, recording at least one instance in which, in the absence of the accused, the judge sentenced the witnesses instead.
The only significant difference between the tribal and colonial legal system was that the law went from being oral to written, causing an increase in the procedures and role for bureaucracy. For the British, the Baluchi system was no system, because there was no writing and records of cases. British summary justice created the semblance of fixed codes and rules, and the first advocate-general was thoroughly preoccupied with the making of these.
Although the difference between the British and Baluchi systems related more to differences in conceptions of crime and punishment, the British presented the two as a radical opposition between a civilised system and a barbaric one. For instance, the Baluch tribal leaders were barbaric because they were lax in punishment. The British administrators, on the other hand, were humane, even when they ordered whippings and hangings. This led to the introduction of new laws governing killings arising out of adultery, which was reinterpreted, and consensus built around the traditional justice system now using codified legal structures.
In Sindh, from the 1860s the British opted for strategic compromises to secure indirect rule through a class of local middlemen. This led to the merging of tribal arbitration with British law. The result was a new configuration of power, a nexus between the middlemen, chiefs and British administrators colluding in exercising power. It was at this time that the supreme jirga was established for the settlement of the inter-tribal disputes, including cases of honour killings. The ‘barbaric’ customs that British law had opposed now became ‘humane’ methods for mediation, including encouraging them to exchange women as a means to settling disputes.
Honour in deceit
The new hybrid system made political agents key figures to an unprecedented extent. They became centres of power playing roles both as custodians and enforcers of law. The end result is a state where today tribal considerations are paramount. Tribes are seen to order their lives through notions of self-help, vested in the individual but supported by the collective; the state in Pakistan in effect still encourages the seeking of justice through these notions, encouraging people to settle matters among themselves, rather than in the courts. New ways of adjusting and strengthening tribal affiliations, primarily by organising justice within the framework of honour, have followed; ‘custom’ has been manipulated, renewed and reinvented to suit the purposes of the day.
The sanctity of the jirgas is secured in the eyes of the rural population through the unquestioned power of the feudal lords, who act as the exclusive rulers of their domains, keeping people socially and economically dependent. Their economic supremacy also allows them control over police and state officials, and guarantees their collective role as the heads of Pakistan’s jirgas, which thereby furthers their capacity to subdue local populations.
The jirgas today generally sit and give judgments when both sides (the victims and the accused) agree to place the matter before them, or if a matter is taken as involving the honour of the tribe. In cases regarding women, their aim is to restore the balance disturbed by a woman’s alleged misdemeanour. They are not intended to elicit truth and punish the culprits. The balance is restored when compensation for damage is negotiated and settled. In a case of honour killing after alleged illicit sexual relations, the karo, the person alleged to have had illicit sexual relations with a woman, the kari, must pay the compensation. This is to allow for his life to be spared, for the loss of honour of the man to whom the kari belonged, and for the woman the man who killed her lost. The amount of compensation is fixed within each tribe, but jirgas also decide how the compensation is to be disbursed. Compensation can be in the form of money or women or both. The jirgas not only consist exclusively of men, but also deny the rights of women even to be heard. Many of those men may be members of government assemblies and other officials, who in exchange for the central government surrendering power over local ‘private’ affairs offer guarantees of political stability. In practice, this means that a small and homogenous segment of the population is given absolute power over all others, particularly women.
The transfer of women in particular is considered by many tribal leaders to be a good way to settle disputes. The Sardar of Shikarpur, Khadim Hussain Jatoi, has stated that “the giving of women is the best way to cool tempers, to heal a conflict and to bring families together by the links of marriage”. Where one woman is killed, two can be given as compensation. Nawab Muhammad Aslam Raisani has explained that this accounts as one woman for the life of the woman killed, and one in lieu of the life of her illicit lover, who will be spared. A lawyer in the Sukkur High Court Bar Association has rationalised this calculation slightly differently: “One woman is given to compensate the man for the disturbance in his life and one to replace the kari.” Whatever the reasoning, women are treated as chattel in compensatory exchanges after murders, forced to live in hostile environments without their consent, to be treated ignobly all their lives.
Although tribal leaders in upper Sindh and Balochistan assert that their decisions effectively settle disputes and provide lasting peace, the evidence does not support this claim. Settlements are often flouted and women killed despite their decisions, as to break a jirga settlement is not dishonourable. Killing and violence, deceit and the breaking of promises are not dishonourable where they are intended to restore honour. Therefore, rulings are readily ignored, and karos who have paid heavy compensation are sometimes killed years later; karis returning to their families on promises of safety invariably end up being slaughtered.
The declining status of women in Pakistan
Honour killing prevails because gender discrimination is present at all levels of society in Pakistan, including its legal system, and is growing. Under Mohammad Ali Jinnah, the founder of Pakistan, the status of women was slowly improving; however, this trend has been reversed since the time of President Zia ul Haq, who politicised Islam in order to forge legitimacy and popularity. He introduced a series of legal changes in the name of Islam that were highly detrimental to women, notably the Hudood Ordinances, which punish adultery with a maximum of 10-years imprisonment and the infliction of 30 lashes. [ii] Not only have thousands of women since been imprisoned under these regulations, but women who have been raped have also been charged with adultery or fornication and jailed.
In fact, although chastity, virtue and honour are all supposedly matters of strict concern for Pakistani men, women are daily victims of sexual assault as men are rarely punished for the crime, and women rarely even report it. Hence, rape is often used as a weapon of revenge. One researcher has written that
50 % of reported rapes in the country are gang-rapes, usually carried out when someone wants to take revenge against a man. The most common way to do it is to rape the man’s female relatives. Allah Wasai, for example, who was eight months pregnant at the time, was brutally gang-raped by twenty-six men to settle a score with her father in law. After the attack, she was paraded naked through her community. [iii]
It is a pity that three decades after General Zia’s rule the Hudood Ordinances have not been repealed, despite the fact that they were introduced without any parliamentary debate. The current administration could have done something, and indeed began with establishing a national commission on the status of women in 2000 and promising to review the laws undermining the status of women in Pakistan. But the level of violence against women has only increased, while the government acts to appease feudal lords and Islamic authorities in order to stay in power. So the ordinances remain intact.
Pakistani society revolves around honour, yet ‘honour’ is being used as a pretext to preserve and maintain existing social relations at the expense of the rights of women. Under any circumstances, the government is morally and legally responsible for changing this dissatisfactory situation. Article 25 of the constitution explicitly states that nothing “shall prevent the state from making any special provision for the protection of women”. Furthermore, under international law the state is obliged to ensure that everyone in its jurisdiction enjoys equal rights before the law. Even if jirgas are left to carry out state functions the state still has to ensure that the rights of all persons are fully protected. But what the government of Pakistan ought really to be doing is working towards the elimination of the jirgas and repealing the Hudood Ordinances. Those steps may be a beginning towards a system of justice that protects, rather than violates, human rights, and in particular, those of Pakistan’s women.
- Jasmin Mirza, Between Chaddor and the Market, Oxford University Press, 2002, p. 30. [Back to contents]
- See further, Naeem Shakir, ‘Women and religious minorities under the Hudood Laws in Pakistan’ and Ijaz Ahmed, ‘The destiny of a rape victim in Pakistan’, article 2, vol. 3, no. 3, June 2004, pp. 14-28. [Back to contents]
- Jan Goodwin, Price of Honor, Plume Books, 2003, p. 52. [Back to contents]
