Historically, criminal justice has been understood to be within the exclusive purview of the State, with sovereignty being used to justify barring the application of international standards in the domestic criminal justice process.[1] This facilitated the development of divergent and sometimes considerably distinct criminal justice systems across the world.[2] However, ‘the erosion of the sovereignty barrier’[3] driven by ‘the growing need for a common approach to crime, the realisation of the value of sharing experiences, and the growing respect for human rights’[4] enabled an increased penetration of international legal norms into the domestic legal system.
This article highlights recent instances where international human rights standards have been recognised in Pakistan’s criminal courts and analyses how they may be used as a tool within the criminal justice system.
International Human Rights Standards and Their Legal Status
The development of international human rights standards has had an immense impact on the protection of human dignity by transforming the relationship between governments and individuals and by making public authorities more accountable.[5] The term ‘international human rights standards’ is used to refer to negotiated human rights documents (instruments) which may be binding or not binding.[6] Binding documents which are classified as ‘hard law’ codify or create legal obligations, while non-binding documents, classified as ‘soft law’, make recommendations about norms of conduct.[7]
The International Bill of Rights which is comprised of the Universal Declaration of Human Rights (UDHR),[8] the International Covenant on Civil and Political Rights (ICCPR),[9] and the International Covenant on Economic, Social and Cultural Rights (ICESCR) is one the most famous international human rights standard.[10] While the UDHR is the primary UN document which codifies human rights, it is not a legally binding document and therefore falls within the realm of soft law. Compelling arguments have been made however, that provisions of the UDHR have been incorporated into customary international law and are therefore binding on States.[11] The ICCPR concerns basic civil and political rights while the ICESCR concerns the basic economic, social, and cultural rights of people. Both are non-binding instruments which form part of soft law and may only be employed for interpretive use only.
Pakistan has also ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[12]International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),[13] the Convention on the Rights of Persons with Disabilities (CRPD),[14] the Convention on the Rights of the Child (CRC),[15] and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)[16] which form an integral part of international human rights standards. None of the above instruments, however, are binding on a State and are traditionally applied in an interpretive capacity.
The international community has also adopted a number of standards relating to crime prevention and criminal justice which also form part of international human rights standards. Compiled in the Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice,[17] the Standard Minimum Rules for the Treatment of Prisoners,[18] the United Nations Rules for the Treatment of Women Prisoners (the Bangkok Rules),[19] the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)[20] and the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules)[21] represent ‘best practices’ that serve as a guide for States to meet their national criminal justice needs.
International Human Rights Standards and Pakistan
Today, while Pakistan has developed an independent criminal justice system, it has undoubtedly been influenced by international standards and norms. This influence is especially apparent in recent judgments discussed below which refer to international human rights standards and their relevance in domestic criminal cases.
The right to life, liberty, and security of the person
Recently, in an application for recovery of a prisoner from alleged illegal custody, the Lahore High Court affirmed the importance of international human rights standards and demanded the commission of an inquiry into the potential abuse of power by the police.[22] The Court acknowledged that the ‘right to liberty and security is sacrosanct’ and States are obligated under international human rights law to protect it as without guarantee of liberty and security, all other individual rights become illusory. The Court cited the UDHR, the ICCPR, the ICESCR, and five more core human rights Conventions which Pakistan has ratified. The court also extracted relevant principles from the UN Code of Conduct for Law Enforcement Officials, the UN Standard Minimum Rules for the treatment of Prisons (the Mandela Rules) and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment to illustrate how the police’s conduct in the case fell short of international standards. The Court also identified how the right to life, liberty and security are protected under Article 4, 9 and 10 of the Constitution of Pakistan, 1973 and the Code of Criminal Procedure 1898 (Cr.P.C.), the Police Order 2002, and the Police Rules 1934 contain details on how to ensure their protection.
The right to be protected from double jeopardy
In a recent appeal against a 2017 qatl-i-amd conviction and life imprisonment sentence,[23] the Appellant claimed that his trial was void ab initio because it was held in violation of the protection against double punishment contained in Article 13 of the Constitution. Before discussing the rule against double jeopardy in Pakistan, the Court referred to the development of the principle on an international level which has undoubtedly influenced its development in Pakistan. The Court cited Article 14(7) of the ICCPR and Article 4 of Protocol 7 to the European Convention on Human Rights (ECHR) which recognise the principle of protection from double jeopardy. The court further stated that the principle that a person shall not be tried twice for the same offence is reflected in Article 13(a) of the Constitution of 1973. Accordingly, Section 403 of the Cr.P.C extends the rule of double jeopardy and prohibits a second trial where a person has previously been convicted or acquitted for the same offence by a court of competent authority and his conviction or acquittal is still in force. After considering the rule relating to double jeopardy, the Court concluded that on the facts, the right to double jeopardy was not threatened and the Appellant’s contention that his trial was bad in law was dismissed.
The right to freedom from torture and cruel, inhuman, and degrading treatment or punishment
Earlier this year, in a habeas corpus petition aimed at obtaining the recovery of three allegedly unlawfully confined detenus, the Court arrived at the conclusion that the detenus were unlawfully detained and therefore were to be awarded compensation by the offending police officers.[24] The Court made a point to draw attention to the dilapidated conditions of the detenus when produced before the Judge to highlight how the detenus’ fundamental rights were violated. When discussing the inviolable dignity of man protected under Article 14 of the Constitution, the Court also cited Article 5 of the UDHR and Article 7 of the ICCPR, both of which hold that no one shall be subjected to torture, inhuman or degrading treatment. The Court noted that by signing and ratifying the UNCAT in 2008 and 2010 respectively, Pakistan assumed responsibility to take effective legislative, administrative, and judicial measures to prevent acts of torture in the territory and to educate law enforcement personnel regarding the prohibition against torture during custody, interrogation, detention, or imprisonment. Before concluding, the Court directed the Inspector General of Police Punjab to ensure that appropriate steps be taken to educate police personnel in line with Article 10 and 11 of the UNCAT.
The right to equal treatment before the law
In the pivotal judgment earlier this year where the Lahore High Court declared the two-finger test illegal and against the Constitution,[25] the Court identified Pakistan’s international obligations and the fundamental rights considerations which influenced the decision. The Court pointed to the declarations made by the UN Committee on the Elimination of All forms of Discrimination against Women and the UN Special Rapporteur on Violence Against Women that virginity testing is a harmful practice. The Court stated that the CEDAW, which Pakistan has ratified, prohibits all forms of discrimination against women and as per the ICESCR, which Pakistan has also ratified, the two-finger test has been denounced for having adverse physical, psychological, and socioeconomic consequences. In addition, the 1995 Beijing Declaration and Platform for Action of the Fourth World Conference on Women called upon States to take all appropriate measures to eliminate harmful, medically unnecessary, or coercive medical interventions. The Court held that Pakistan’s international obligations create a responsibility on the State to prevent carrying out virginity testing given that it is accepted that virginity testing does not establish the offence of rape or sexual abuse.
Protection of juvenile offenders
During a criminal appeal under Section 48 of the Control of Narcotic Substances Act 1997, where the appellant was a first-time offender and claimed to be under the age of 18 at the time of the commission of the offence,[26] the Court referred to a 2019 case[27] which relied on international human rights standards. The Court in the 2019 case in Islamabad cited the CRC, the United Nations Rules for the Protection of Juveniles Deprived of their liberty (Havana Rules), the Beijing Rules, the Tokyo Rules and the United Nations Guidelines for the Prevention of Juvenile Delinquency (Reyadh Guidelines) which together place Pakistan under the obligation to provide protection under the law to juvenile offenders in line with the standards settled in the documents. In accordance with the earlier authority, the Court in this case held that the appellant was entitled to leniency and his sentence was modified from 10 months and a fine of Rs. 10,000/- to what was already undergone.
Effect of Implementing International Human Rights Standards
While analysis of the actual impact of international human rights standards on a domestic level is difficult,[28] it is argued that the recognition of international standards may be used as a tool in domestic courts to ensure the provision of due process and the protection of the rights enshrined in the Constitution. Though Pakistan has a system of laws for the provision of due process in criminal trials, international standards provide a benchmark for criminal procedure. Recognition of such a benchmark enables Courts to ensure that Pakistani laws are applied in a way where domestic protection meets international standards. Where domestic protection falls short of international standards, international standards provide a goal for law enforcement officials and the administrators of justice to strive towards. For example, in Bashir Ahmad,[29] the Court used international human rights standards to illustrate that the lack of entry made in the Roznamcha (Daily Diary) at the police station fell short of the due process protection the detainee was entitled to. The Court also directed the Inspector General (IG) of Police to take all necessary steps to ensure that officers act in accordance with international standards and delinquents are disciplined, providing the IG a clear goal in terms of training. Therefore, international human rights standards are being used as a tool to strengthen Pakistan’s criminal justice system, its protection of fundamental rights and provision of due process.
Additionally, recognition of international human rights standards within Pakistani criminal courts improves Pakistan’s image in the international community by indicating that the State is dedicated to protecting human rights in line with their international obligations. This will be especially useful in aiding the retention of Pakistan’s GSP+ status[30] which is dependent on the State’s implementation of international covenants on human rights, environmental protection and good governance. It will also be vital in improving Pakistan’s reputation as a member of the UN Human Rights Council (HRC).
References
[1] M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions (1993), 3 Duke Journal of Comparative & International Law 235-298, 240
[2] Joutsen, Matti, International Standards and Norms as Guidance in the Criminal Justice System (2016), Resource Material Series No. 98, Fuchu, Tokyo: UN Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders, 54
[3] Which began towards the end of the Second World War. (n1), 240
[4] (n2), 54
[5] Human Rights Standards: Learning from Experience, (2006), International Council on Human Rights Policy (ICHRP), 2
[6] (n 5), 4
[7] (n 5), 4
[8] Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereafter UDHR].
[9] International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) [hereafter ICCPR]. Signed 17 Apr 2008, ratified 23 Jun 2010
[10] International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. GAOR 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) [hereafter ICESCR]. Signed 03 Nov 2004, Ratified 17 Apr 2008
[11] Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA. J. INT’L & COMP. L. 287 (1996), 289
[12] Dec. 18, 1979, 1249 U.N.T.S. 13 [hereafter CEDAW]] Acceded 12 Mar 1996
[13] Dec. 21, 1965, 660 U.N.T.S. 195 [hereafter ICERD] Signed 19 Sep 1966 Ratified 21 Sep 1966
[14] Dec. 13, 2006, 2515 U.N.T.S. [hereafter CRPD] Signed 25 Sep 2008 Ratified 05 Jul 2011
[15] Nov. 20, 1989, 1577 U.N.T.S. 3 [hereafter CRC] Signed 20 Sep 1990 Ratified 12 Nov 1990
[16] Dec. 10, 1984, 1465 U.N.T.S. 85 [hereafter CAT] Signed 17 Apr 2008 Ratified 23 Jun 2010
[17] Compendium of United Nations Standards and Norms in Crime Prevention and Criminal Justice, United Nations publication, Sales no. 92.IV.1 and corr.1.
[18] First United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1955), report prepared by the Secretariat (United Nations publication, Sales No. 1956.IV.4), annex I.E.
[19] UNGA 65/229, annex.
[20] General Assembly resolution 40/33, annex
[21] General Assembly resolution 45/110, annex
[22] Bashir Ahmad v District Police Officer etc. Crl. Misc. No.3831/H/2021
[23] Mazhar Hussain v The State and another 2021 P Cr. L J 449
[24] Mst. Khatoon Bibi v The State and 2 others 2021 PCrLJ 593
[25] Sadaf Aziz v Federation of Pakistan and others 2021 PCrLJ 205
[26] Najeeb Ullah v The State 2021 PCrLJ 18
[27] Mst. Jamila v The State 2019 PCrLJ 1176 (Islamabad)
[28] (n 2), 59
[29] (n 22)
[30] A special incentive arrangement with the EU which slashes tariffs to 0% for low and lower-middle income countries that implement 27 international conventions related to human rights, labour rights, protection of the environment and good governance
This is indeed a great effort. Now more and more countries are required to meet ESG standards and United Nations sustainable developments goals of 2030 .