1. I am happy to let you know that we are planning on restarting our working group discussions (WGDs) this summer through virtual google hangout chats. We are hoping to have at least two WGDs, one in July and one in August, for anyone who is interested. We hope that the WGDs this time around will integrate both literature and multimedia to set the context for a larger discussion. 

    For the month of July, our WGD is titled “The Politics of the Local and the Universal in Women’s Human Rights and Development Work” (see attached flyer). We have selected one academic article and three short videos to discuss in our first WGD. The article is a rich piece on the politics of transnational human rights work by anthropologist Sally Engle Merry. The video links relate to the film “Half the Sky” as well as the recent Global Summit to End Sexual Violence Against Women

    Contact Helena Zeweri @ helenazeweri@feminijtihad.org

     

  2. Honour Killings - Myths and Motives

    This legal opinion has been written to shed light on the motives behind honour killings that have been reported in the Middle East and South Asia.

    The opinion is written for lawyers and activists so that they may use the arguments contained herein, to debunk popular myths of how and why honour killings occur. The question of how and why honour killings occur is important because we can then analyse what the honour defence provision under the Penal Code protects; and who or in what circumstances. For instance, is it true that in reality the defence is used to protect innocent individuals who commit murder in the moment of an emotional trauma when witnessing an incident of infidelity? This legal opinion will interrogate the reality behind the ulterior motives of honour killings.

    It is erroneous to assume that the defence of honour emerges alone upon the witnessing of the “wife naked in bed with another man” or other more apparent prima facie evidence. Instead, the statistics above show that the honour defence is abused by murderers with ulterior motives. ‘Honour Crimes’ are also being “commercialized”, committed in an effort by families to:

    1. Retain property rights;
    2. Gain compensation from the individual accused;
    3. Settle a personal vendetta; to prevent women from claiming inheritance

      rights;

    4. Hide the exposure of incest.

    It has even been reported that in Jacobabad, Pakistan, a man killed his wife after he had dreamed of her having an ‘illicit’ relationship.

    To read more, click here: Honour Killings – Myths and Motives

     

  3. Interview with Deya Bhattacharya on FI and all things women’s rights!

    We have been working pro bono for a long time, and FI/SAHR believes in bridging the gap between academic and activism in women’s empowerment issues. I don’t think I’d ever refuse the position! In the last few years, we have received the FRIDA (The Young Feminist Fund) grant and the SOAS Best-Student Volunteering Projects.

    We are a team of several women from four different continents, whom I have never met! But the amount of camaraderie between us is phenomenal. I always write to Natasha whenever I am in trouble and she always makes sure she sends a positive audio-note and almost always with a solution to my problem! I am grateful to Natasha, Anna, Sara and Sarah for always being there to brainstorm on my (sometimes ridiculous) ideas.

    The work I have done here is mostly linking women’s rights to post-conflict/conflict areas. I have also assisted in strategic litigation, drafted arguments, concept notes and training modules for child custody, rape, and domestic violence issues. A project that brought us accolades is a research we (Sarah Jones, Sara Bergamaschi and I) conducted in Libya, interviewing Libyan activists on the right of political participation of women after Gaddafi’s fall. The research was published and presented in plenty of international conferences.

    Read more here!

     

  4. Honour Defence Mitigation from Criminal Jurisprudence Perspectives

    Why honour killings fall short of standards required in criminal law

    Mitigation is a small element in the judicial toolkit acknowledging the frailties of human nature. While intent (mens rea) bears criminal liability, the law adopts a softer view on impulsive reactions. But this is not a boundless discretion bestowed upon courts.

    Honour killings are tantamount to encouraging summary executions by private individuals based on communal and/or personal affronts. The defence of Provocation is different. An essential ingredient of ‘provocation’ is loss of self-control. In most legal systems, the standard is higher where provocation requires immediacy and intensity. There are temporal and proportionality constraints built into it. This means the defence of provocation is limited by proximity of time between the provocating incident and reaction; the reaction must be immediate. It is also limited in terms of proportionality: the reaction must be proportional to the provocating incident. These concepts are by no means new to the Afghan legal system.

     Legal safeguards are necessary for people who do not, or cannot understand the implications of their actions on account of mental incompetence generally (eg. insanity) or within a given period (eg. inebriation). Similarly, provocation defence assumes that reasonable and deliberate choices would have been made, but for, a sudden lapse in judgment in the moment of intense emotions. That is to say, mitigation is only permitted to a moment and context, where an otherwise non-criminal mind disintegrates enough to perform a criminal act. Implied in this reasoning is that the Court has to find that:

    a) there was a change of state from a sound mind to an unsound mind;

    b) that the change occurred immediately;

    c) that the change resulted from a serious provocation;

    d) that the response was proportional to the provocation;

    e) and failing which, the subject would be held criminally liable.

    However in an honour killing defence, mitigation is not premised on points (a)-(e). The mitigation applies regardless, i.e. even a man of sound mind possesses a default right to kill in the event dishonour, whether perceived or real.

    The threshold of ‘sudden and grave provocation’ differs on a case-to-case basis. But the defence of honour is fundamentally different in nature. It rests on cultural norms while the perpetrator is fully aware of his actions. Just as personal prejudices are not permitted as a valid legal defence, communal or tribal tradition cannot be entertained by law if they infringe upon others’ lives and safety. Such a localized and regressive legal system will defeat the purpose of generally accepted principles of human behaviour. In addition, honour killings are never precipitated by provocation (as required by law) to constitute an adequate defence. Instead they are premeditated acts of homicide committed by conscious minds that calculate the consequences of ‘dishonour’, analyse its subjective effects upon themselves and then proceed to inflict a deliberate loss of life upon a member of the family.

    Read More: Honour Defence Mitigation from Criminal Jurisprudence Perspectives

    Written by:

    Deborshi Barat

    Supervising Lawyer

    Natasha Latiff

    Founder & Legal Advisor

     

  5. Legal Framework on Evidence in Rape Cases

    This legal framework was developed after a preliminary review of rape cases brought before international courts and tribunals, as well as, courts in South-Asia. The selection of issues was based on what typically arise in court cases on rape and sexual assault and their impact on women as complainants and defendants. In this guide, we reiterate arguments that have been successfully used by human rights lawyers on controversial legal questions. We have made this framework a practical tool of reference by offering suggestions for case strategy in like cases.

    This framework refers mainly to the jurisprudence developed by international and human rights courts and committees; the CEDAW Committee, the International Criminal Tribunal for Former Yugoslavia and the Inter-American Court of Human Rights, to mention a few. They are instructive on gender-analysis and the use of evidence in rape cases. The cases we have selected are based on their precedence and frequent citation by international bodies like the CEDAW Committee. 

    Finally, references have been made to Pakistani law due to their relevance and proximity to the cases that appear in Muslim-majority jurisdictions. Some English legal standards were used due to the abundance of material on the law of evidence in the English language. They were also included due to their rigorous methods of standard-setting.

     Admittedly, these standards in the absence of law, are not binding upon any court. However, it is envisaged that through the strategic use of these ‘standards,’ gender stereotypes and narratives in Court can be exposed and challenged logically and persuasively. Though meant for lawyers, the arguments can also be developed further for lobbying, law reform, and activities.

    Read more here 

    By: Alice Ollino, Natasha Latiff

     

     

  6. Article 26: Prohibitive Questioning of Witnesses

    Earlier this month, Article 26 of Afghanistan’s draft criminal procedure code, dealing with the testimony of relatives as witnesses to a crime, was approved by Parliament and sent to the President for his signature.

    The provision titled “Prohibition of Questioning an Individual as a Witness” is currently reflected in a bill written in Dari, the official Persian used in Afghanistan. Translated into English, Article 26 of the draft stipulates that certain people cannot be questioned as witnesses and includes relatives of the accused. Apart from relatives, others covered by the prohibition are children, doctors and defence lawyers. Hence a plain reading of this provision implies that family members, among other defined groups, will be banned by law from giving testimony against accused persons.

    Contained in Chapter 5 of the code (‘Testimony’), Article 25 (the preceding article) explains that persons who have information about crimes can, and should be summoned as witnesses. The succeeding Article 27 allows witnesses not to answer questions that could lead to
    prosecution for themselves or their relatives. Yet, a stand-alone construction of Article 26 appears to impose a blanket ban on relatives from testifying. It goes on to say that prosecutors, officials and the court are obliged to inform the listed categories of their right to silence. The chapter is marred in ambiguity.

    This draft bill has now been forwarded by the President to the Ministry of Justice for necessary amendment(s).
    The manifest prohibition under Article 26 raises a few legal issues:

    1. The scope and ambit of the term ‘relatives’ needs to be ascertained: (i) Who does it cover?
    How does it apply to persons related to both the victim and the accused?

    2. When a relative (or any other prohibited class of individual) actually does or attempts to give testimony against a related person: (i) Will this be merely a procedural infirmity, cured by striking off such testimony; or (ii) Will such a person be judicially restrained from providing evidence; or (iii) Will such evidence gathered during investigations be rendered
    inadmissible in Court?

    3. When the testimony is substantially material to the elements of the crime, can the Court still summon that witness or admit its evidence? And if not, how does this exception sit alongside Constitutional safeguards and guarantees within Shariah to facilitate justice?

    In light of the above, Article 26 in its present form clearly violates Article 3 of the Constitution on the primacy of Shariah law and the foundation of Shariah (maqasid-al-Shariah) on discovery and justice.

    Article 26 could also clash with certain provisions under Chapter Two (“Fundamental Rights and Duties of Citizens”) of the Constitution. For example, Article Twenty Two reads: “Any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden.
    The citizens of Afghanistan, man and woman, have equal rights and duties before the law.” Constitutional Article Twenty Four speaks of liberty as a natural right. The selective prohibition of certain categories from exercising a ‘right’ might be interpreted by a competent court as discriminatory, unequal and bad in law.

    Since certain persons cannot be questioned as witnesses, these individuals will effectively be stripped off the right to testify and put forth evidence in a criminal case. Especially in circumstances where the victim herself is restricted from presenting the facts of her complaint, or essential eyewitnesses are silenced on account of familial ties, Article 26
    becomes a serious violation of fundamental freedoms. The prohibition is an infringement of basic safeguards accorded to the citizens of a country within the protections of law and religion.

    Read more here

    By Deborshi Barat

     
  7. Strategic Advocacy for Human Rights (Femin Ijtihad) won most outstanding contribution to volunteering for 2013. This was awarded by the Director of SOAS, University of London. This is the second University-based award we have won in the last few years.