PAKISTAN became a party to the International Covenant on Civil and Political Rights in 2010, a move that many hoped would herald greater human rights protection in the country. The government, however, never fully acknowledged the obligations it undertook under the ICCPR and the treaty was rarely used to guide the country`s laws and policies. On the contrary, senior government officials often publicly disavowed international human rights law as a `Western` concept `alien` to Pakistan`s values.
Quite alarmingly, Pakistan has seen some major reversals in human rights protection since becoming a party to the ICCPR: the government resumed executions and Pakistan became one of the highest executioners in the world. Parliament enacted laws allowing military courts to try civilians for certain terrorism-related offences; and the authorities started a new wave of crackdowns on NGOs, journalists and human rights defenders, attempting even to close down NGOs on the ground that they presented `a very bleak picture` of the country`s human rights situation to the UN.
In this context, the UN Human Rights Committee the treaty monitoring body responsible for overseeing states parties` compliance with ICCPR carried out its first review of Pakistan`s implementation of the ICCPR recently.
In stark contrast to the hostility to international human rights norms that was seen domestically, Pakistan`s delegation in Geneva refreshingly expressed its deep moral and legal commitment to international human rights obligations. To demonstrate Pakistan`s commitment to international law, the delegation also cited the routine enforcement of ICCPR provisions by courts in the country.
To some extent, the delegation`s claim is true. Since Pakistan ratified the ICCPR, provincial high courts and the Supreme Court have relied on international human rights norms, including certain ICCPR provisions, in a number of cases, interpreting fundamental rights in the Constitution in line with evolving international standards. Such jurisprudence has not only expanded the ambit of constitutional rights in the country, but has also shored up some welcome domestic legitimacy to international human rights norms.
In December 2013, for example, the Supreme Court delivered an important judgment on enforced disappearances. The court held that international law on enforced disappearances, including under the ICCPR and the International Convention for the Protection of All Persons from Enforced Disappearances (CED),reflected customary international law and courts could interpret fundamental rights provisions in the Constitution in their light, even if Pakistan had not ratified the CED, `to achieve the ends of justice`.
This was closely followed by another far-rching judgment on the right to freedom of religion, in which the Supreme Court interrupted Article 20 of the Constitution relating to freedom of religion in light of Article 18 of the ICCPR, and expanded its ambit to include freedom of conscience, thought, expression, belief and faith. The Supreme Court also noted that international human rights standards `serve as moral checks and efforts are continually being made to incorporate these rights into domestic law`.
In other judgments, high courts and the Supreme Court have interpreted constitutional provisions related to the right of freedom of movement, the right to life and dignity, and the right to political association in light of international standards, and have observed that the ICCPR is a `legally binding treaty` and the Pakistani state was `bound to follow` international human rights norms in view of the `commitments it had made to the international community`.
However, on many other pertinent issues such as the application of the death penalty and the legitimacy of laws adopted with the stated aim of countering terrorism, for example, the same courts have appeared dismissive of international human rights treaties as authoritative guidelines, let alone as legally binding obligations.
In August 2015, the Supreme Court in its majority judgment dismissed arguments based on international human rights law in the determination of the legality of military trials of civilian `terrorism suspects`. The court noted that during the course of arguments, some reference was made to `international commitments made by Pakistan`, but contrary to its prior jurisprudence of reading them into the ambit of fundamental rights, shifted responsibility for the application of these norms by stating `it is for the federal government to ensure that the course of action undertaken by them does not offend against the public international law or any international commitment made by the state`.
In other cases, courts have deemed international law irrelevant to their determination of the lawfulness of the death penalty, including in cases concerning the execution of people with mental disabilities.
The disinclination of some judges to interpret fundamental rights in the background of international human rights standards is also visible outside the courtroom.
In a consultation of superior courts` judges on possible law reform of criminal offences related to religion, some judges found that the ground realities in Pakistan militated against the desirability of taking guidance from international standards.
The jurisprudential inconsistency described indicates that the application of international human rights law in domestic courts appears largely dependent on the worldviews of individual judges and the sensitivity of the issues raised in the particular case.
Clarity on the nature of international human rights law obligations and their interaction within Pakistan`s domestic legal system is still lacking.
In many parts of the world, including in states that follow the `dualist theory` of international law like Pakistan (where international law cannot be invoked directly in domestic courts without being expressly incorporated into national law), judiciaries have been at the forefront of implementing human rights standards even where legislatures have failed to enact specific, enabling legislation. In the region, Nepal`s supreme court, for example, has played a leading role in setting standards on remedy and redress for human rights violations during Nepal`s decade-long conflict based on the jurisprudence of treaty-monitoring bodies.
Recently, before the UN Human Rights Committee, Pakistan`s delegation claimed that the government had initiated a number of programmes to raise judicial awareness about international human rights law.
One hopes these initiatives assist courts in fulfilling their obligation to uphold human rights, an obligation that falls on all branches of the state, including the judiciary. The writer is a legal adviser for the International Commission of Jurists.
Courtesy: Daily Dawn (July 29, 2017)