Bending towards justice
Having won an Oscar this year for her documentary A Girl in the River: The Price of Forgiveness, Sharmeen Obaid-Chinoy’s production follows the story of Saba Qaiser, a young woman who survives a brutal honour killing attempt by her very own kin.
Asad Jamal was Saba’s lawyer.
How did you chance upon Saba Qaiser’s case?
It was a high profile case that was being covered extensively in the media. I was asked for assistance to help a woman in need of legal representation, by someone who knew me through social media, and was thus put in contact with Ms. Chinoy.
Saba’s case wrapped up in July, in 2014. The incident took place a few weeks prior, in June, but I met Saba only a few days after she was discharged from the hospital where she was being treated at. I got the power of attorney signed and executed by Saba and talked to the family about them pursuing the case. But soon, I sensed that things had started changing, as it happens in many criminal cases in Pakistan…
…the pardoning of the offenders and perpetrators of crimes?
Yes. We’ve seen it happening in all sorts of cases of violence against women. Even if the penal code doesn’t permit pardoning or compromise (as a result of on monetary compensation) in rape cases, for instance, it’s happening there too. For instance, victims retreat from their initial position. The compromise associated with such cases, I must state, has had a very negative impact on how the system works; how judges, prosecutors and lawyers in Pakistan work. Given the case is usually closed within a mere few months, lawyers keen to see successful prosecutions become demotivated. On the other hand, the possibility of compromise as a result of payment of monetary compensation or pardoning without compensation also makes the task of lawyers, prosecutors and judges easier: they don’t have to work hard to conduct trial.
If the police help the offender in reaching a compromise with the victim, they also get a cut out of the dealWhy do the victims come under extreme duress to pardon their perpetrators?
It can be a combination of a number of factors when it comes to violence against women. I recently took up a rape case that I tried to pursue, but within a few months it came to a point where the accused and the victim’s father reached a compromise. There was an exchange of money and the victim backed off to reach a compromise – now that’s something which isn’t permitted in the law but prosecutors and courts do not use relevant provisions of law to ensure prosecution and conviction. The police don’t conduct investigations diligently because if they help the offender in reaching a compromise, they also get a cut out of the deal. Then there can be circumstances in rape and similar other violent crimes against women in which there may be pressure from the clan/biradri to forgive because the perpetrator is a man who has a higher social status.
As a result of the introduction of what is generally referred to as Qisas (retribution) and Diyat (blood money) law, the criminal justice system has been reduced to a private affair. The law was introduced as a result of the Shariat Court’s decision to Islamize penal law relating to offences affecting the human body. The law allows the legal heirs of the victim/survivor to pardon, or compound the offence by accepting monetary compensation. The law is applicable to honour crimes as well. Even though honour killing is legally murder and if prosecution leads to punishment as Qisas cannot happen, then it must result in punishment of death or imprisonment for life as ta’zir (secular punishment). It seems that the fundamental problem with our criminal law is that the law on Qisas and Diyat has reduced it to a private affair rather than a sphere over which the state representing the society should have the control because offences against the human body are offences against the society at large.
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