Qandeel Baloch, a Pakistani social media celebrity, was killed last month.
Her brother, Waseem Azeem, was arrested the next day, confessing to the murder in the name of “honour”.
Public opinion about her death is polarised. A section of Pakistani society condemned the murder of “an independent woman”.
Others voiced support for the killing of – to put it in generic terms – a non-conformist with outspoken views on social media. Many others have remained apathetic.
In Britain this week, another alleged “honour killing” – that of Samia Shahid, a British citizen of Pakistani origin – hit the headlines.
Honour killing is a significant social problem in Pakistani society and is on the rise.
A recent report from the Human Rights Commission of Pakistan found that 1,096 women were the victims of honour crimes in 2015, up from 1,005 in 2014 and 869 in 2013.
Victims include both men and women but female victims far outnumbered male victims.
The Pakistani Penal Code incorporates two kinds of law – qisas (the Islamic fixed law of life for a life) and tazir – where the court has a discretion as to the amount of punishment.
These are both a key part of the way the penal code is constructed.
Until just under ten years ago, the legal treatment of honour killing was a grey area and it was possible for perpetrators to get away with a murder in the name of honour or get a light sentence.
Courts handed down light sentences because the perpetrators claimed that they were provoked by the “immoral or sexual behaviour” of the victims and somehow they were partly to be blamed for their own deaths.
Courts accepted the element of “provocation” as a mitigating circumstance. Perpetrators could also easily get away with honour-based murder because they were forgiven by the heirs of the victim under qisas law.
As the perpetrators of honour killings happen to be close relatives – parents, brothers, uncles and sometimes the whole family is involved – the victim’s heirs would were unlikely to want to send their close relative to prison or face a death sentence. So their crimes were forgiven.
All this changed in 2004 when a new scheme of law was introduced.
An amendment introduced to the penal code (section 302) now treats killing in the name of honour as murder punishable with death under qisas.
Honour-based murder was also then made punishable with the death penalty or life imprisonment under tazir law.
But a murder which is judged not to be honour-based is still treated as a compoundable offence under qisas, meaning heirs of the victim may forgive the perpetrator or accept blood money subject to judicial approval – although not if the heir happens to be the perpetrator himself.
Under the amended law, parties in honour-based killings still retain their right of compromise and forgiveness under qisas but crucially it must be assessed by the court to ensure that the interests of justice are not defeated and that the rights of any children are protected.
Another amended part of the penal code, section 311, now also treats honour-based murder as what’s called fasad-fil-arz (mischief on earth) which is a crime against the state that cannot be forgiven by an heir.
So if the prosecution reaches a conclusion that a murder is honour-based, the state is required to prosecute perpetrators under section 311 which allows the court to hand down the death penalty or life imprisonment.
So the effect of the 2004 law is derived from a mixture of both qisas andtazir law. Under qisas law, a perpetrator does not enjoy the benefit of forgiveness if he himself happens to be the heir of the victim.
Forgiveness by other heirs is allowed but the court must be satisfied that forgiveness is in the interests of justice.
But under tazir law, if the prosecution considers a murder to be honour-based, it will be caught by the fasad-fil-arz principle and the perpetrator may be prosecuted.
In principle, this means that if a court judges that a murder was not honour-based, it means that the murder could be forgiven by an heir, but if it is judged to be honour-based then it can be forgiven, by an heir, only with the court’s approval.
Baloch’s brother confessed to the police who are treating the murder as honour-based.
Her parents, who are her natural heirs, have spoken out against her killing.
Even if they forgive their son, it is unlikely that the court would accept this as it would amount to letting him get away with her murder.
Under Pakistani law, then, Azeem could face either the death sentence or life imprisonment.
While a clear law against honour-based murder exists in Pakistan, it has so far not proved to be an effective deterrent for these crimes, as their rise since the laws were introduced in 2004 suggests.
Perhaps more education and public awareness of women’s human rights, together with the stringent application of the law on Pakistan’s statute, might help in reducing the incidence of honour-based murders.
- Niaz Shah, Reader in Law, University of Hull. This article originally appeared in The Conversation.