Violence targeting women in Pakistan manifests itself in a variety of forms and is usually carried out together with a combination of other human and women’s rights violations, all of which form part of the process of the physical and psychological abuse that a majority of women in this country suffer from.1 Honour related crimes are one type of violence that primarily targets women. These crimes encompass a range of manifestations of violence from unlawful confinement, assault, acid burning, rape to, of course the most classic and extreme form, cold blooded murder on the pretext of ‘honour’ – Honour Killings.2
Crimes committed allegedly for honour are so defined because they occur in a social setting where the “ideal of masculinity is underpinned by a notion of ‘honour’ – of an individual man, or family, or community – and is fundamentally connected to policing female behaviour and sexuality.”3 Honour of the male members of the family is understood to reside in the bodies of the women of the family, and in protecting this honour the men aim to regulate and direct women’s sexuality and freedom to exercise any control over their own choices/lives.4 Any action or perceived transgression, therefore, on the part of the women to break out of this familial setting or to defy the authority of the male members of her family requires a response that not only punishes the transgressor but, in effect, also helps restore the ‘lost’ honour and reassert the masculinity of the male family members within the society or community. Unfortunately the only responses found adequate enough to achieve this multi purpose aim are those that reaffirm the physical and social dominance of the male members over the female members and manifests itself in acts of violence against the women; illegal confinement, forced marriages, cutting off of the nose, acid burning, stove burning, rape and cold blooded murder.
The term ‘crimes of honour’ is not without its complexities and critiques. Hosain and Welchman come closest to defining it in its colloquial context stating that ‘crimes of honour’ are those “where the publicly articulated justification for the crime is attributed to a social order claimed to require the preservation of a concept of honour which is vested in male control over women, particularly over women’s sexual conduct.”5 Instances of this type of violence against women are clubbed together under this terminology and are “characterised by the ‘motivation’ rather than by the perpetrator or form of manifestation” of the criminal act.6
Table 1. Reported cases of violence against women for the year 2007
Source: Human Rights Commission of Pakistan.
By defining the crime in its social setting and providing a motivation for it based on normative traditional and cultural dogmas, an otherwise wrongful and illegal act, that should fall under clearly defined criminal laws and in a majority of cases constitutes a statutory offence, is presented as a tolerable customary practice, albeit not a wholly desirable one. The victim in such cases is made a party to the crime itself, as she is seen to share the blame for the violence perpetrated against her because of her own transgression and rebellion against the existing social norms, while the guilt of the criminal is mitigated as he is deemed to operate within a socially justifiable code of conduct.7
The international focus on ‘crimes of honour’ sometimes tends to follow certain obstructive stereotypes by linking traditional and customary rationales for such crimes to issues of religion as well. It is generally portrayed as yet another instance of gender discrimination within Muslim societies. Honour related crimes, although not restricted to these countries, continue to exist in modern Muslim states like Pakistan, Jordan, Turkey, Egypt, Palestine and Syria, however, within these states as well ‘crimes of honour’ occur across religions and cultures and incidents of honour crimes are found within the non-Muslim population as well.8 Such crimes occur in various states and regions around the world including Western Europe, Latin America and Africa, as well as amongst the Hindu population in India and the Christian population in Pakistan.9
A sociological analysis of the proliferation of this practice in Muslim societies has been conducted by many anthropologists and scholars and it is established that there is no religious sanctioning for such crimes within the sources of Islamic law and the practice of its founder, in fact a number of renowned Muslim scholars and religious leaders have publicly condemned such acts as criminal offences liable to/for corporal punishment.10
Arguments that support the view that Islam encourages this subservient role of women usually focus on Islamic injunctions that strictly regulate the sexuality of its members. An-Nai’m states that ‘the fact of the matter is that families and communities have played a role in regulating the sexual behaviour of their members in every human society throughout history.’ He argues that the question to be determined is not whether a society ought to regulate the sexuality of its members at all or not, but, in the context of crimes of honour, it is the scope and manner of this regulation that manifests itself in violent forms is what needs to be addressed. In other words these crimes need to be tackled as violent and discriminatory methods of regulation of sexuality.11 What would be counterproductive would be suggest that the family and community have no right to regulate sexuality at all. Therefore, when developing strategies to tackle the issue of honour crimes there is a need to maintain a distinction between challenges to the level of liberalization of a particular community and the challenges to a practice that is excessive and violent and discriminates against women. It is necessary to de-link such crimes from Islamic law and tradition, especially in societies where religion has become the domain of a clergy with diverse interests and motivations for maintaining the status quo and religious reform is a complicated, often taboo subject characterized by high strung religious fervor and deep seeded mistrust of universal values and morality.
Honour crimes are a form of violence against women, and should be recognized as a fundamental women’s rights issue that thrives due to a patriarchal social mind set that is supported and encouraged by a legal state structure that aims to control women behaviour and conduct. By taking the human rights approach the state mechanism and state actors can be made responsible for such violations even if they occur in the private domain of family and community. In Pakistan it is the state apparatus itself that is often responsible for protecting those who perpetrate these crimes and the various organs of the state have systemically allowed this practice to thrive, evolve and take root in Pakistani society. The individuals forming part of the state apparatus responsible for the protection of rights and for guaranteeing equality and justice to the citizens; the legislators, the police the judiciary, all belong to the same patriarchal social structure and have let their misogynistic attitudes influence the development of social and legal norms within Pakistan. It is, therefore, also necessary that any strategy that aims to tackle the traditional practice of honour crimes within Pakistan, in order to be sustainable and effectively implemented, will have to be devised with the consent and cooperation of the community. An-Na’im promotes the ‘community discourse’ “as a means of transforming family and community attitudes about these crimes as well as prompting and supporting state officials and institutions to combat them more effectively.”12
Rights activists and feminists are opposed to the use of the term ‘honour’ in conjunction with criminal acts that target women particularly, especially in the context of ‘honour killings’, as this implies an acceptance of the notion that women embody the honour of males and thus promotes a concept of honour that endorses or indeed requires violence against women and at the least suppression of their rights, for it to remain unharmed and intact. It also connotes that men who commit crimes with the motivation of preserving control over female family members or to assert their masculinity over the women in their families are in some way ‘principled’ and ‘rightly guided’, and while their actions (murder, rape, assault) may be wrong/illegal, the impetus for these crimes is grounded in ‘honourable’ intentions.13
This concept of ‘honour’ and its preservation within a society is upheld by a strict code of conduct by the members of a community and shapes and forms the way women are regarded in a particular culture and dictates the rules that determine acceptable women behaviour and their sexual conduct.14 This system of rules need not be restricted to the customary, cultural realm alone and in some cases shape and influence the formal system of law making where these societal concepts create the consensus upon which the development and formulation of legal rules and procedures are based.15
The developments in the Pakistani criminal legal system from 1947, when the state gained its independence from British colonial rule, to date, in cases of honour related violence against women, are definitely a reflection of the societal attitudes of the population towards women and their approved role within this society. This societal attitude in turn has had a deep and debilitating impact on the rights of women suffering from such violence and their ability to seek and get justice. The denial of the right of women victims of violence to get justice begins from their homes and families and this unjust treatment is reflected within the larger community to which they belong. The situation rarely improves for the few women who actually dare to approach the formal state institutions put in place to mete out justice to the citizens. With regard to violence against women, therefore, responsibility and accountability is a very complex issue. The family, the community and the state are all implicated in providing impunity to the perpetrator and viewing his criminal acts as normal and acceptable reactions and behaviour within society. They consider cases of violence against women as a private family matter that ought not be brought out in public courts, systematically denying that a serious human rights violation has been committed.16
The issue of access to justice with regards to the legal system should be defined both broadly and narrowly. As the term allows, when broadly defined the concept of access to justice covers the entire machinery involved in law making, interpretation and implementation. Whereas a narrow definition would refer to facilities available to the victims; like access to legal services and other state services, the quality of the service providers and the level of accessibility within the legal infrastructure. The Government of Pakistan (GOP) has launched an Access to Justice Program (AJP) with a loan from the Asian Development Bank (ADB) to implement legislative, judicial, police and administrative reforms in the country to strengthen the system of administration of justice. The main objective of the AJP was to increase access for the poor and to develop a basic legal and logistical infrastructure that could form the bases for further improvement.17 Work carried out under the AJP varied from technical support in the area of information technology for the courts to training of the judiciary. The program has completed its first phase, however, its success is difficult to measure, especially in view of the current judicial crisis in the country and regular boycotts of courts by the lawyers. One important aspect that the AJP overlooks and does not address adequately is the issue of women’s rights and access to justice in this context, therefore, for the purposes of this paper, any achievements thus far of the AJP have had little or no impact on the plight of women seeking justice from the courts.
Furthermore, when assessing the access to justice for the women in Pakistan the discussion cannot remain confined to access to the courts or tribunals that adjudicate or mediate. According to the UNDP definition “Access to justice entails much more than improving an individual’s access to courts or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable.”18
Although the UNDP does expand the scope of the concept, it still remains too narrow an interpretation, although a very important component of access to justice. Access to justice has to be defined broadly to look beyond just the formal legal system and towards the non-state actors, those working outside the realm of the legal system that are also given the authority and called upon in most cases to be the bestowers of justice by the community, especially in the context of violence against women in Pakistan. The informal system of local tribunals guided by local and customary law are increasingly being approached by those disappointed by the formal system, to settle a variety of disputes, including women rights issues, and, therefore, cannot be ignored for the purposes of this paper.
The aim is to examine the various routes a victim of honour related violence might take to seek justice, so as to assess where the impediments within the available systems lie and what hurdles face women victims in particular. This study looks at the procedures, the formal laws, judicial pronouncements and the cultural rules that deal with such acts of violence, to highlight how the societal concept of women and their acceptable role in society has influenced the development of these institutions, both formal and informal, and the rules that govern them, particularly when dealing with honour related crimes.