Reema Omer | DAWN
IT has been more than 10 years since Pakistan ratified the ICCPR and the Convention against Torture, and even longer since it became party to other core UN human rights treaties such as CEDAW and ICESCR.
By becoming party to these treaties, Pakistan undertook an obligation that binds all branches of the state to promote, respect, protect and fulfil human rights. However, there still remains confusion regarding Pakistan’s commitment to the international human rights regime and the relevance of international human rights standards in guiding the country’s laws, policies and jurisprudence. Such lack of clarity is most pronounced in the conduct of government as well as jurisprudence of courts.
Pakistan is at present a member of the UN Human Rights Council. In its pledge in support of its candidacy for the UNHRC, Pakistan expressed its “enduring commitment to the international human rights system” and said it “considers human rights as the bedrock of peaceful, inclusive and prosperous societies”.
In sharp contrast to Pakistan’s lofty claims before international forums, international human rights largely remain a maligned concept domestically and the government actively resists any scrutiny of Pakistan’s human rights record.
Government officials continue to call human rights standards alien to Pakistan’s ground realities.
Top government officials continue to call human rights standards alien to Pakistan’s ground realities, and appeals to assess Pakistan’s laws and policies against international human rights standards are shut down as promotion of ‘foreign’ or ‘Western’ interests. Prime Minister Imran Khan too has on multiple occasions questioned the role of human rights organisations, including HRCP, for promoting a ‘foreign agenda’ to defame Pakistan.
A number of UN special rapporteurs, including SRs on human rights and counterterrorism, torture and freedom of religion or belief have requested Pakistan to extend invitations to undertake country visits to assess the situation of human rights in the country. The government, however, has failed to invite them. We should also recall that when the UN Working Group on Enforced or Involuntary Disappearances visited Pakistan in 2012, a number of government representatives called it an infringement of Pakistan’s sovereignty and an attempt to make Pakistan a ‘banana republic’.
Such dangerous and ill-informed rhetoric not only seeks to delegitimise the ideal of human rights, it also vilifies human rights defenders and puts them at risk for doing their job of advocating for the promotion of rights in the country.
The public disavowal of international human rights law and the work of human rights defenders also contradicts the Government’s own conduct and performance on international cooperation. For example, the government frequently collaborates with the UN on human rights programmes and provides trainings to its officials on Pakistan’s human rights obligations. In addition, it reports to a number of UN bodies on the implementation of treaties, and every four years under the Universal Periodic Review, responds to concerns about its human rights situation raised by other UN member states.
International human rights norms have also at times led to legislative reform. In recent years, for example, parliament has passed a number of laws including those that address sexual violence and the rights of transgender people to fulfil its obligations under international law.
These examples don’t sit well with the idea of international human rights law being a ‘foreign agenda’ and groups working in this area being ‘foreign agents’.
This contradictory approach on international human rights law can also be seen in Pakistan’s jurisprudence. In a number of cases, the high courts and Supreme Court have interpreted constitutional provisions related to the right of freedom of movement, life and dignity, liberty and political association, among others, in light of international standards, and have observed that Pakistan was “bound to follow” international law in view of the “commitments it had made to the international community”.
In 2013, for example, the Supreme Court delivered an important judgement on enforced disappearances and held courts could interpret fundamental rights provisions in the Constitution in light of international treaties even if Pakistan had not ratified them “to achieve the ends of justice”.
Earlier this year, the Lahore High Court referred to provisions of human rights treaties ratified by Pakistan as “obligations” on the Government in a judgement regarding the legality of the use of “virginity tests” as evidence in rape cases. The court ruled that such tests are discriminatory and violate the right to life and dignity, basing much of its reasoning on international standards.
Other judgements too have considered international human rights standards as authoritative guidelines for courts. Last year, the Islamabad High Court relied heavily on international law and standards, including the ICCPR and the recently revised UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) to give directions to the authorities regarding the rights of detainees. The court held “it is settled law that a ratified convention or treaty can be relied upon as long as it is not in conflict with the law enacted in Pakistan”.
However, judgements like these are still not the norm, and courts can often be dismissive of arguments that rely on international human rights law. In its majority judgement on the lawfulness of military trials of terrorism suspects, the Supreme Court dismissed arguments based on international human rights law and stated “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”.
The jurisprudential inconsistency indicates that the application of international human rights law in courts appears largely dependent on the worldview of individual judges and the sensitivity of the issues in a particular case. Clarity on the nature of such obligations and how they interplay with Pakistan’s domestic legal system is still lacking.
Such mixed signalling and lack of ownership of international human rights, along with resistance to scrutiny of human rights compliance by the state, partly explain why these norms — many of which constitute hard law — have still not taken root in the country.
It is time that all branches of the state end their doublespeak on human rights and adopt a clear public position recognising their legitimacy and significance — it is only then that human rights discourse can truly flourish and improve the lives of the people of Pakistan.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, May 6th, 2021
See article here.