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[1]
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[2]
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[3]
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[4]
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[5]
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..”[6]
[1] 1969 PLD Supreme Court 485
[2] 2013 PLD Peshawar High Court 94
[3] 2016 PLD Lahore High Court 857
[4] 2019 PLD Supreme Court 218
[5] 2019 PLD Lahore 17
[6] P L D 2020 Lahore 716
