By finally passing new bills amending existing legislation on honour killing and rape, the National Assembly has taken a step forward. The bills, passed by the Senate last year, had been pending for many months. The Pakistan Peoples Party deserves praise for persevering with the issue till these laws were added to the statute book.
There are many flaws and loopholes in the amendments but they do tighten up some of the gaps left open in the past. The new law on honour killing tones down the issue of granting pardon to the accused: a route frequently utilised by those committing honour crimes to escape scot-free by persuading a family member of the victim to accept blood money. This, of course, exchanges hands only on paper. This was simple as most honour killings took place and continue to take place within families.
Under the new legislation, the issue of pardon comes up only when a death sentence has been awarded. In such cases, the family of the victim, by granting pardon, would effectively have the sentence reduced to life in jail. Most cases are likely to then end with a life sentence for the culprits, as pardons are most often granted because of social pressures and possible consent to the killing from within the family. But, certainly, this is an improvement on a situation in which no punishment was received at all. At any rate, the death sentence is not something that needs to be encouraged.
The passage of the law on rape required an even bolder stance from the National Assembly, given that the Council of Islamic Ideology had prohibited DNA evidence from being used. The legislation passed by the National Assembly orders the collection of DNA and forensic testing in all cases of rape — although, realistically speaking, one wonders how this will be implemented given the situation in hospitals outside major urban centres. Even within major urban centres, DNA testing is not common and there is limited expertise in the area. A massive training operation and process of upgrading medical and laboratory facilities will then be required to back this law if it is to have any meaning at all.
The same law also lays down a life sentence as the maximum punishment for rape, and death for those convicted of raping minors or mentally disabled persons. There is, however, no mention of a minimum punishment in cases of rape, which means there may be fewer convictions given that judges shy away from awarding life imprisonment or death.
Additionally, there is a more elementary flaw in this law: the past record of an accused person, for the purposes of the medical report, is not admissible in court. In cases involving assault on women, the previous history of the person accused often becomes extremely relevant in proving the case or building up a picture of precisely what happened.
There is, however, a positive side to this: the question of the victim’s ‘character’ or behaviour cannot be brought into court when cases are heard. This is relevant in a society which frequently blames the victim when rape occurs, questioning her actions or constructing acts of alleged ‘provocation’. The removal of this weapon from the hands of defence attorneys is important.
There is also no mention in the law of the rape of men, even though nearly a 1,000 cases of sodomy were reported last year by non-governmental organisations monitoring child sexual abuse. The true impact of these important pieces of legislature will be apparent only with time. As we have seen in the past, the placing of a law on paper does not in itself make any difference in many cases. It is the implementation, and the intention behind these implementations, that matter. Both these factors will need to be followed up on, if any change is to come about in the handling of these crimes.
This article was originally published in the Herald's November 2016 issue. To read more subscribe to the Herald in print.
The writer is a former joint director of the Human Rights Commission of Pakistan.