It is rightly stated that the domestic judiciary, while free in the State, is not free from the State. It is, therefore, critical to understand that all three arms of the State – Legislature, Executive, and Judiciary play a role in upholding Pakistan’s international obligations. In the context of Pakistan’s human rights obligations under the various treaties Pakistan has ratified, the role of the judiciary is even more critical for three distinct reasons:
- Certain human rights obligations can only be discharged or protected by the judiciary. These can include granting a fair trial and ensuring due process – rights enshrined in the ICCPR as well as the Constitution of Pakistan. It is a judges role to ensure that no torture is taking place against a person in police custody – a right enshrined in the UNCAT as well as the Constitution.
- It is the inherent role of the judiciary to keep a check on abuses of rights committed by the other two organs of the State. In relation to the executive, it is the judiciary that can hold them accountable. The powers of magistrates in relation to the police, the powers of sessions court judges to ensure credible investigations and prevent abuse, and the important write jurisdiction of the High Courts and exercise of judicial review prevent the executive from committing abuses of human rights. In relation to the legislature, where laws are made contrary to the Fundamental Rights enshrined in the Constitution, it is the duty of superior judiciary to hold them ultra vires of the Constitution.
- It is the judiciary which can highlight issues of incompatibility between domestic law and international law for the legislature to remedy. This ensures that the judiciary plays a critical role in Pakistan complying with its international obligations, especially its human rights obligations.
Judiciary and the Application of International Law
The judiciary plays, arguably, the most important role in the State when it comes to the compliance with International Law. For the purposes of illustration, the following methods of incorporating or implementing International Law into domestic decision making by the Superior Judiciary of Pakistan have been observed:
This is when Courts apply domestic law which has been derived from international law and which takes the form of implementing legislation without directly referring to the international law source.
Indirect Application of International Law
This is when Courts utilise international law as a guide to interpreting domestic law. In Hanover Fire Insurance v. Muralidhar Banechand the Supreme Court noted: “Every statute is to be so interpreted and applied as far as its language admits, as not to be inconsistent with the comity of nations, or with the established rules of international law…” thus, reflecting the use of international law as a tool of interpretation for domestic law.
Furthermore, in Al-Jehad Trust v. Federation of Pakistan the Supreme Court stated that there was an obligation on national courts to interpret ambiguous legislation harmoniously ensuring that such interpretation is in compliance with international law and provides maximum benefits to citizens.
Defining the Content of Constitutional Rights through International Law
International law has been used to elaborate upon the rights encapsulated within the Constitution of Pakistan. In Al-Jehad Trust v. Federation of Pakistan the Supreme Court stated that it is permissible to look at international conventions and customary law to expand the scope and content of Constitutional rights and in Human Rights Case No. 29388-K of 2013 the Supreme Court even stated that unratified treaties may be referred to in order to comprehend the nature and application of Constitutional rights.
Direct Application of the ‘Principles’ of International Law
Direct Application is where Courts implement international law directly and expressly in reaching a decision. The Supreme Court of Pakistan noted in Human Rights Case No. 29388-K of 2013.
“…Our Constitution at Article 9 lays down the right to life which has received an expansive interpretation from this Court. Moreover, Article 10 provides direct protection from enforced disappearances. Thus, the crime against humanity of enforced disappearances is clearly violative of the Constitution of Pakistan. Therefore, this Court can also apply the principles enshrined in the 2006 Convention in order to achieve the ends of justice.” [OA4]
In June, 2020, The Lahore High Court (LHC) commuted the death sentence of Muhammad Iqbal, a juvenile offender who had been entitled to relief for nearly twenty years. In a landmark judgement, a two-member divisional bench of the LHC allowed the petition filed by Justice Project Pakistan and commuted Iqbal’s death sentence to life imprisonment. Authored by Hon’ble Chief Justice of LHC Muhammad Qasim Khan and Justice Asjad Javaid Ghural, the judgement relied on the Presidential Notification No. F.8/41/2001-Ptns, Article 37 (a) of UNCRC and Article 6 Paragraph 5 of ICCPR protecting juvenile offenders from the death penalty. The judgement reads: “….firstly the international legislation and secondly our domestic legislation impose a clear ban on the infliction of death penalty on an accused under the age of eighteen years, thus, the claim of the petitioner to seek benefit which otherwise, was fully available to him under the policy, having the force of law, could not have been denied….”
However, in case of a conflict between international and domestic law, the scope of direct application of international law is limited and in Muhammad Humayun v. Member, Board of Revenue the Court has stated that if there is no possibility of reconciling domestic law with international law, domestic law must be applied but such incompatibility must be noted.
Domestic Adoption of International Standards
Courts in Pakistan have also been cognisant of international standards and their application in implementing domestic legislation. For example, the Supreme Court in Ghulam Hussain vs. The State stated that:
“…the definition of ‘terrorism’ contained in Sec. 6 of the Anti-Terrorism Act 1997 as it stands at present is too wide and the same includes so many actions, designs and purposes which have no nexus with the generally recognized concept of what terrorism is.…It is, therefore, recommended that the Parliament may consider substituting the present definition of ‘terrorism’ by a more succinct definition bringing it in line with the international perspectives of that offence and focusing on violent activities aimed at achieving political, ideological or religious objectives”
Furthermore, in the same case the Court has stated that international standards, definitions, and concepts can be adopted to ensure the implementation of all rights which are available to citizens under domestic law.
The Application of International Law by the Superior Judiciary of Pakistan
This role of the Judiciary is reflected in the progressive attitude of the Supreme Court and High Courts of Pakistan towards the application of internationally recognized human rights. The Superior Courts have taken a liberal approach towards the implementation of international law in the domestic legal framework which is demonstrated in its jurisprudence upon the subject of human rights.
Some examples include:
Superintendent Land Customs Torkham (Khyber Agency) v. Zewar Khan
In this Case the Supreme Court reaffirmed the status of the Durand Line as an international border between Pakistan and Afghanistan which reflects the significance attached to international agreements in the implementation of the law.
Foundation for Fundamental Rights v. Federation of Pakistan
The Peshawar High Court, in assessing the legality of drone strikes in international law referred to the UN Charter and the Geneva Conventions of 1949 to declare that such strikes were blatantly violative of the absolute right to life and had not been authorised by the UN Security Council thus, making them in breach of international law.
Mst. Rukhsana Bibi v. Government of Pakistan
A foreign male migrated to Pakistan to marry a Pakistani woman. He wasn’t granted a right to acquire Pakistani Nationality under S.10(2) of the Pakistan Citizenship Act 1951. Denial of this right is discriminatory and a violation of not only Article 25 of the Constitution but also various international law instruments (i.e. Article 25 of the Universal Declaration of Human Rights, Article 15 of International Covenant on Civil and Political Rights, Article 23 of Beijing Declaration and Platform for Action 1995). The High Court directed relevant authorities to grant the foreign national citizenship after following the required procedure.
National Commission on Status of Women v. Government of Pakistan through Secretary Law and Justice
In this case, the courts referred to multiple international instruments (i.e. Article 4,7,8 and 25 of Universal Declaration of Human Rights, Article 2,7,8 and 26 of ICCPR, Article 2,15 and 26 of CEDAW) while adjudicating upon the issue of discrimination against women and lack of access to justice and equality before the law. It was held that these international instruments place a responsibility on Pakistan to ensure that all women in the country have access to courts and tribunals and are treated equally before the law. Article 2(1) of the ICCPR considers negligent representation of women before jirgas/panchayats a blatant violation, which requires all State Parties the duty to protect human rights.
Imran Maqbool, President MCB Bank LTD. v. Federation of Pakistan through Secretary Law, Justice and Human Rights Division, Islamabad and others
The petitioners in this case challenged the jurisdiction of the Federal Ombudsman for Protection Against Harassment of Woman at the Work Place under the 2010 Act.
The Court referred to Article 23 of UDHR which declares the right to work and the right to favourable conditions of work as a human right and Article 11 of CEDAW which specifically requires States to ensure equal work opportunity and safe working conditions for women. As Pakistan has ratified these treaties and conventions it is obligated to protect the right to work and to ensure a favourable work environment. Protection Against Harassment of Women at the Workplace Act 2010 was promulgated in pursuance of Pakistan’s obligations under the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the International Labour Organization Convention 100 (“ILO 100”) which is the Convention for Equal Remuneration for Men and Women for Work and Convention 111 (“ILO 111”). The 2010 Act extends to the whole of Pakistan and is applicable over all employees, employers, organization and workplace in the public and private sector. The subject matter of protection of the workplace for women falls under Item 3 read with Item 32 of the Federal Legislative List of the Constitution which includes implementing international treaties and conventions.
Finally, the Court declared that due to the trans-provincial nature of the organisation, the complaint fell within the jurisdiction of the Federal Ombudsman.
Sumayyah Moses vs. Station House Officer, Faisalabad and 3 others
In the case of Sumayyah Moses vs. Station House Officer, Faisalabad and 3 others, the Lahore High Court relied on Hague Convention on the Civil Aspects of International Child Abduction, 1980 for the definition of “abduction.” The judgement reads, “..keeping in view the fact that 101 countries are party to the Hague Convention one should prefer the definition given in Article 5 thereof which says that these rights “include rights relating to care of the person of the child and, in particular, the right to determine the child’s place of residence..”