Role of the Judiciary in upholding International Law
It is rightly stated that the domestic judiciary, while free in the State, is not free from the State.[1] It is, therefore, critical to understanding 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 the superior judiciary to hold them ultra vires of the Constitution.
- It is the judiciary that 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.
In this manner, the judiciary plays, arguably, the most important role in the State when it comes to 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:
- Silent Application
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[2] 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[3] 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[4] 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[5] 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.[6]
“…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.”
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….”[7]
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[8] 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[9] 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.
[1] Ahmer Bilal Soofi, Inextricably Linked, DAWN, May 25 2014, available at http://www.dawn.com/news/1108468.
[2] 1958 PLD SC 138
[3] 1999 SCMR SC 1379
[4] 1999 SCMR SC 1379
[5] 2014 PLD SC 305
[6] 2014 PLD Supreme Court 305
[7] https://mailchi.mp/024119b606a4/juvenile-muhammad-iqbal-death-sentence-commuted
[8] 1991 CLC 362 Peshawar High Court
[9] 2020 PLD Supreme Court 61
