The Application of Human Rights Treaties in Dualist Muslim States: The Practice of Pakistan

ABSTRACT:I argue that Islamic law treats ratified human rights treaties as part of the law of the land and as directly applicable in courts in Muslim states such as Pakistan where Sharia is the main source of law. The Islamic approach is the better and more effective approach for the enjoyment of human rights. Article 227(1) of the 1973 constitution of Pakistan demands Islamization of all existing laws and prohibits the enactment of laws incompatible with Islamic law. Pakistan has failed to Islamize its constitutional provisions on the ratification and status of ratified treaties and continues to practice the dualist doctrine inherited from the British colonial era. Pakistan has acceded to seven core human rights treaties, but they are not incorporated in the legal system of Pakistan. This has led to a legal culture where human rights treaties are seen as applicable on the international plane only. I make a case for the Islamization of the constitutional provisions in relation to human rights and other treaties and until the constitution is amended under Article 227(1), I propose an ad hoc framework for relying on unincorpo-rated human rights treaties and customary international law based on the developed British dualist doctrine which will contribute to the enjoyment of human rights in Pakistan.


INTRODUCTION
Pakistan has acceded to a number of human rights treaties, but the state of human rights is alarming. Human rights violations of children, women, freedom of expression, and ethnic minorities are soaring. In January 2018, the rape and murder of a six-year-old girl by her neighbor shocked the nation. 1 In a similar case in January 2018, another young girl was raped and murdered. 2 In Balochistan, an eight-year-old boy was found hanging from a tree; a medical examination found that he was sexually abused before his murder. 3 Sahil, an NGO focusing on child sexual abuse, in its "Cruel Numbers 2020," said that 2,960 cases of child abuse were reported in the national media, 51 percent of which were girls. 4 At least ten journalists were killed, and a large number were threatened, kidnapped, tortured and arrested. 5 Curbs on the media continue and journalists are complaining that they are "compelled to self-censor for fear of being persecuted by state and non-state actors." 6 The Human Rights Commission of Pakistan (HRCP) "recorded 430 cases of honor killing in 2020, involving 148 male and 363 female victims." 7 There was also a sharp rise in the cases of domestic violence in 2020. 8 "Accusations of blasphemy, forced conversions and marginalization of religious minorities and sects" are common. 9 In 2020, 586 persons were charged under the blasphemy law and thirty-one alleged that they were forcefully converted to Islam. 10 According to HRCP, the "Justice Project Pakistan [JPP] has recorded 17 cases of custodial deaths" since 26 June 2020. 11 Many cases go unreported. 12 The state of human rights is deteriorating despite the fact that Pakistan has acceded to seven core human rights treaties. 13 In 1948, Pakistani also voted in favor of the Universal Declaration of Human Rights 1948. 14 Pakistan as a state party has acquired human obligations and is required to comply with them in good faith. There are, however, two main reasons for the lack of effective judicial application of human rights law in Pakistan: Pakistan's complacency in following the dualist doctrine (the British doctrine has developed greatly in light of human rights treaties obligations) it has inherited from the British colonial era and not Islamizing the constitutional provisions on the ratification and status of human rights treaties as is mandated by Article 227(1) of the 1973 constitution. Dualism has given birth to a legal culture wherein it is possible to become a practicing lawyer and a judge without studying international law. 15 Such a legal culture psychologically "disposes both counsel and judge to treat international law as some exotic branch of the law, to be avoided if at all possible." 16 The UN Charter guarantees the principle of "sovereign equality" of all member states. 17 Sovereign states voluntarily take part in the formation and subsequent ratification and accession of treaties. The implementation and application of human rights treaties is based on the consent of state parties. 18 The core human rights treaties do not specify a method for how states parties may implement and apply human rights law within their jurisdictions. 19 The International Covenant on Civil and Political Rights (ICCPR) confirms this flexibility stating that each state party "undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized." 20 This article seeks to answer the question of whether and how the Pakistani judiciary may rely on unincorporated human rights treaties and customary international law. Drawing on the analysis of Islamic law, the 1973 constitution, and Pakistani and English jurisprudence, I argue that under Islamic law, human rights treaties are directly applicable in the domestic system and an Islamic law approach to the ratification and enforcement of human rights treaties is a better approach. Pakistan, acting under Article 227(2) of the 1973 constitution, should Islamize the procedure on the ratification of treaties, and determine the status of ratified treaties and customary international law in line with Islamic law. Adopting an Islamic law approach will maximize the judicial application of human rights law leading to enhanced enjoyment of human rights in Pakistan. The district judiciary is a gateway to public litigation and litigants at district judiciary would benefit the most from the direct application of human rights law. This is because currently a misperception is prevalent in the district judiciary that it does not have jurisdiction to enforce human rights law and fundamental rights. 21 Until the Islamic approach is introduced, I propose an ad hoc framework as to how Pakistani courts may rely on unincorporated human treaties and customary international law for the protection of human rights. The ad hoc framework is derived from the analysis of the developed English and inchoate Pakistani jurisprudence on human rights law.

II. THE 1973 CONSTITUTION AND ISLAMIZATION OF LAW
The 1973 constitution declares Islam as a state religion. 22 Article 227(1) requires that all existing laws must be brought in conformity with the Quran and Sunnah, and no law shall be made which is incompatible with the Quran and Sunnah. 23 In essence, all laws must meet the Islamic legal compatibility test. 24 The spirit of Article 227(1) also means that all laws must be interpreted compatibly with Islamic injunctions. 25 The Islamization of laws must take place through and on Abu Jandal, count on a reward, for God will give you and those who are oppressed with you relief and a way out. We have made a treaty and peace between ourselves and these people; we have given them and they have given us a promise, and we will not act treacherously toward them. 47 The  51 which also means that the termination of the treaty should be declared openly so that the enemy may not remain under the impression that the treaty is intact. 52 The thrust of this principle is prohibiting treacherous conduct. A good example is when the Prophet Muhammad (peace be upon him) announced to the polytheists that their covenants- Custom is a recognized secondary source of Islamic law. 56 The custom to be accepted as a source of law must be prevalent in the country and must not be against clear principles of the Quran and Sunnah. 57 The Prophet Muhammad (peace be upon him) followed many Arab customs in Madina. Some customs were disapproved through Quranic injunctions or the practice of Prophet Muhammad (peace be upon him). The remaining customs were followed in Madina as well as newly conquered areas. The Prophet Muhammad (peace be upon him) accepted and followed international customs, e.g. in relation to sending and receiving emissaries. 58 As Islamic law considers accepted treaties as part of Islamic law and binding on everyone, similarly, using qiyas (analogical deduction), international customs that do not conflict with the clear principles of the Quran and Sunnah may be treated as a source of Islamic international law.
This was the position of Islamic law on treaties and customary law when Muslims were one Ummah (community) well before the emergence of nation state or the theories of dualism and monism. 59 The emergence of nation state and the disintegration of Muslim Ummah into multiple states have, however, not affected the Islamic legal position on making and incorporating treaties into Islamic law upon ratification. The principle of fulfilling treaty obligations is the same, but the procedure for making, accepting, and incorporating treaties may be slightly different from the earlier Islamic practice. The 1973 constitution mandates the Council of Islamic Ideology to make recommendations for Islamization of law. 60 It is proposed that the Council conduct careful compatibility studies of human rights treaties and, in case of some incompatibilities, try to minimize or remove them through reinterpretation of Islamic and Ijtihad (independent reasoning). The Council may appoint an expert panel to assist it on international law. Where incompatibility is found, which cannot be removed through reinterpretation of Islamic law or Ijtihad, then a narrow and specific reservation may be entered.
The rest of the treaty provisions shall become part of Pakistani law and directly applicable in courts. The same procedure should be adopted for acceding to the remaining core human rights and other treaties. Collectively). 73 The legality of IRA was challenged. On appeal from the High Court, the In Shela Zia, the Supreme Court said: An international agreement between the nations if signed by any country is always subject to ratification, but it can be enforced as a law only when legislation is made by the country through its legislature. Without framing a law in terms of the international agreement, the covenants of such agreement cannot be implemented as a law nor do they bind down any party. This is the legal position of such documents, but the fact remains that they have a persuasive value and command respect. 76 The above wording appears to state a general position under international law but Akhtar J (with the other two judges agreed) seems to be recasting the Pakistani position as a dualist state.
Construing this statement in this way is the only sensible and legally correct way as otherwise, both monists and dualists can question its validity. Monists argue that once a treaty is ratified, it becomes part of the national legal system and in some countries such as France and the Netherlands treaties once ratified are given supreme status. 77 Dualists can validly challenge the statement that a State party is always bound by the terms of the treaty internationally and a state cannot invoke its internal law for not complying with the treaty. The most important point, however, is that the Supreme Court considers treaty to be of persuasive value commanding respect even when not ratified by Pakistan. A.

Forms of Incorporation
The incorporation of treaties takes many forms in Pakistan. First, the traditional and standard form is that an Act of Parliament "copy out" provisions of a treaty and attach those as schedule to the Act. Pakistan has signed and ratified the International Convention on the Settlement of Investment Disputes between States and Nationals of other States and "to implement" it, the Parliament passed the Arbitration (International Investment Disputes) Act 2011. 78 The Act has incorporated the Convention in full setting out its provisions in the schedule to the Act. 79 The second form is where the statute mentions the relevant international treaty as well as borrows the treaty language in drafting statutory provisions. A good and encouraging example using broad human rights language is the ICT [Islamabad Capital Territory] Rights of Persons with Disability Act, 2020. In its preamble, it states: It is expedient to put in place legal and institutional framework to protect the rights of persons with disabilities in general and women, children and the elderly in particular, as called for by the United Nations Convention on the Rights of Persons with Disabilities, as well as other human rights treaties and conventions to which Pakistan is a state party. 80 Section 2 of the Act has borrowed some definitions such as "discrimination on the basis of disability" from the CRPD whereas Section 5(2) has taken the right to privacy from Article 22 (2) of CRPD. 81 It is clear that the intention of parliament here was indirect incorporation. This form of incorporation is next to an Act of Parliament giving effect and force of law to a treaty.
The third form is that the Act mentions the relevant treaty, which Pakistan has signed and ratified in its preamble.

B. Customary International law
There is no clear statement on the status of customary international law either in the constitution of Pakistan or case law but the general tendency seems to be that customary international law is considered part of Pakistani law if it does not conflict with the constitution, statute and case law.
In Pakistan Muslim League, the Supreme Court held: The fundamental right granted by Article 15 of the Constitution [i.e. freedom of movement] is backed by international norms. Article 9 of the Universal Declaration of Human Rights declares: "No one shall be subjected to arbitrary arrest, detention or exile." Furthermore, Article 13 states: "Everyone has the right to leave any country, including his, own, and to return to his country." . . . Although the Human Rights Declaration is not a legally binding treaty, its provisions are considered customary international law and binding, as such, on all member States of the United Nations and therefore on Pakistan. 87 The Supreme Court did not say in terms that customary international law is part of Pakistani law.
This is a crucial point as international customary law binds Pakistan internationally, and it could be interpreted as referring to Pakistan's internationally binding obligations. In Qureshi, 88 the Supreme Court did not clearly say that customary international law is part of Pakistani law but the tenor of the discussion and heavy reliance on English case law is suggestive of judicial inclination to treat customary international law as part of Pakistani law if it does not conflict with Pakistani law. The constitution does not mention customary international law and the jurisprudence is not sufficiently developed but tendency towards incorporationist approach can be detected in some judgements.

C. Treaties and Interpretation of Statutes in Pakistan
State parties may enter reservations to treaties modifying the legal effect of or excluding obligations. The reservation must not, however, defeat the "purpose and object" of the treaties.
Pakistan has acceded to seven core human rights treaties and two optional protocols to the CRC. 89 It has entered reservations to four treaties and the second optional protocol 90 to the CRC.
No reservation has been entered to the CRC itself or the first optional protocol. The declaration to the second optional protocol is specific explaining that the age limit for entry into the armed forces is 16 and that those under 18 are not sent to combat zones. The other two treaties without reservations are the CERD and CRPD. Pakistan's declaration 91 to ICCPR upon signature is nothing more than a statement reserving its right to enter reservation in future. This is unnecessary as states party may enter or withdraw reservations at any time. Pakistan has entered reservation 92 to the ICESCR saying that it will use its available resources for the realization of There is limited but encouraging evidence that some judges tend to interpret treaties and domestic law compatibly. They have relied on human rights law in a number of ways. First, the courts tend to believe that the parliament do not enact laws which are incompatible with Pakistan's human rights obligations. This is why they tend to interpret laws compatibly with human rights law. Article 10-A recognizes the right to a fair trial but did not spell out its constituent elements. As discussed above, in Gillani, the Supreme Court interpreted and gave meaning to the right to a fair trial in the light of the universally recognized principles. 100 Second, the senior courts tend to give wider interpretation to the constitutionally The Fundamental Rights enshrined in our Constitution in fact reflect what has been provided in some of the above-quoted Universal Declaration of Human Rights. It may be observed that this Court while construing the former may refer to the latter if there is no inconsistency between the two with the object to place liberal construction as to extend maximum benefits to the people and to have uniformity with the comity of nations. 103 Third, Pakistani courts treat customary international law as binding on Pakistan, but there is lack of clarity whether or not it is part of Pakistani law like customary international law is part of the common law in the UK. In Pakistan Muslim League, 104 Chief Justice Iftikhar Chaudhry said that UDHR is customary international law and binding on Pakistan. He did not identify which articles were customary and binding. The court did not cite sources to support the customary status of the UDHR or conduct its own customary status assessment. This is a misleading bald statement as not all of UDHR is customary. 105 The courts can and should interpret Pakistani law compatibly with customary international law. A good example is prohibition on torture. 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. 113 Relying on these interpretive techniques of human rights treaties and comparable Pakistani legal provisions, the judiciary can play a pivotal role in the protection of human rights.

F. Customary International law
The doctrine of incorporation applies to customary international law, which espouses that international law is part of common law without the need for ratification through constitutional procedures. 134 Blackstone's commentaries are cited for this approach as he said that "the law of nations, wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be a part of the law of the land." 135 Blackstone mentioned the "law of nations" but Shaw argues that it refers to customary international law and different rules apply to treaties. 136 He also, correctly, claims that the doctrine of incorporation has become the main British approach. 137 In Keyu, Lord Mance noted that "Common law judges on any view retain the power and duty to consider how far customary international law on any point fits with domestic constitutional principles and understandings." 138 Lord Mance clarified the current judicial position as the presumption when considering any such policy issue is that CIL [customary international law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration. 139 In Belhaj, Lord Sumption said that "international law is not a part of but is one of the sources of the common law." 140 Shaw wisely cautions against bald statements that customary international law is part of English common law, as courts will have to determine whether a custom exists; whether there is any constitutional bar to incorporation and/or whether it offends public policy.
He favors presumptive rather than automatic incorporation. 141  the Act is the governing law. If the words or language used in the statute were ambiguous in a material sense, then "it would no doubt have been possible as a matter of law to take into account in the process of construction the Treaty provisions." 146 The terms of the legislation, however, should be construed, as far as is possible, to conform to the treaty. In Brind, Lord Bridge said: "in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that parliament intended to legislate in conformity with the Convention, not in conflict with it." 147 Before Brind, in Salomon, Diplock LJ said: "Parliament does intend to act in breach of international law, including therein specific treaty obligations." 148 Ratified but not transformed treaties may give rise to legitimate expectations. In Thomas, Lord Goff and Lord Hobhouse said: "We accept that treaty obligations assumed by the Executive are capable of giving rise to legitimate expectations which the Executive will not under the municipal law be at liberty to disregard." 149 In a dualist state such as the UK treaties have no direct effect until transformed through an Act of Parliament in the domestic system. Once transformed, the courts rely on them as Acts of parliament rather than international treaties. As Acts of parliament, the English canons of interpretation apply to treaty enabling statutes. Statutes, however, need to be construed compatibly with treaty obligations, as parliament does not intend to legislate in breach of treaty obligations. Customary international law is part of common law if it does not conflict with constitutional principles, statutes and law declared by courts. Common law, however, has to give in to statute in case of conflict. Common law, like statutory law, is interpreted in a way, which does not place the UK in breach of its international obligations.
Treaties not transformed into the UK law may be relied upon where common law is uncertain or underdeveloped. The English courts have taken into account human rights treaties in cases such as telephone taping; 150 freedom of association 151 and the offence of criminal libel. 152 Higgins calls it a changing legal culture where judges try to find imaginative ways of relying on unincorporated human rights treaties. 153 For interpreting the terms of a treaty, the courts apply the interpretation of treaty provisions as reflected in Articles 31-33 of Vienna Convention on the Law of Treaties 1969 (VCLT). 154 There is, however, not much difference between these and the English cannons of interpretation of statutes. 155 The above analysis establishes that Pakistan has inherited dualism from the UK and has been following it since 1947. Like the UK, treaties need to be transformed into the Pakistani legal system for having the force of law in Pakistan. In the UK, however, the ratification process is given constitutional cover through the Constitutional Reform and Governance Act 2010, whereas the Pakistani constitution is silent on ratification. 156 The practice, however, is that It is a public policy that the UK does not act in violation of its human rights obligations. 161 This means that parliament does not intend to make laws incompatibly with human rights obligations and courts interpret laws compatibly with human rights standards. The Ministerial Code also requires Ministers to comply with the law, including international law. 162 There is no such clear policy or a ministerial code in Pakistan. In Gillani, however, while interpreting the right to a fair trial recognised by Article 10-A of the constitution, the Supreme Court did say that perhaps parliament "intended" to give it the same meaning as is broadly universally recognized. 163 Pakistan, however, needs a policy statement regarding acting compatibly with international law like the UK.
The position of Pakistani law and practice vis-à-vis customary law is not clear. In Pakistan Muslim League, the Supreme Court held that UHDR as a customary law is binding on Pakistan but it did not say whether it was part of domestic law. 164 The British courts treat customary law as part of common law or as a source of common law if it does not conflict with the constitutional principles, statutes and the law declared by courts. Common law, however, has to give in to statute. This means that customary law falls within the lower category of English common law. However, the standard practice is that parliament will not make laws that substantially go against common law principles. It will not be wrong to say statutory law is reflective of common law. Pakistan can adopt a clear policy in respect of customary international law and its status in the Pakistani legal system.
The practice of incorporating treaties in the UK and Pakistan is similar. An act of parliament is required to give effect and force of law in the domestic system. The forms of treaty incorporation such as "copying out" or indirect incorporation are also identical. Pakistan seems to have closely followed the British practice in this area but it is behind in finding "imaginative ways," as Higgins call it, in applying unincorporated treaties. 165 Pakistan has a legal culture where one can become a judge and an advocate without properly studying international law unlike the UK where citing, interpreting, and relying on international law is common for lawyers and judges. In the British legal culture, international law is treated as a familiar topic whereas in Pakistan most judges and lawyers treat international law as some exotic branch of the law, to be avoided if at all possible, to borrow the words of Higgins. The poor treatment of international law in judgments such as Pakistan Muslim League and Shehla Zia is reflective of this legal culture. 166 The trend of relying on unincorporated treaties is growing, especially among lawyers who have studied in the UK and other common law countries such as Australia, Canada, and USA. The limited jurisprudence is pointing towards willingness of some judges to rely on human rights treaties.
From the above analysis, the following framework for relying on unincorporated human Monists contend that there is but a single system of law, with international law being an element within it alongside all the various branches of domestic law. For the monist, international law is part of the law of the land alongside labour law, employment law, contract law, and so forth. Dualists contend that there are two essentially different legal systems, existing side by side within different spheres of actions-the international plane and the domestic plane. So long as the existing statutes were not brought in conformity with injunctions of Islam, their interpretation, application and enforcement, wherein discretionary judicial elements were involved, only that course would be adopted which was in accord with the Islamic philosophy, its common law and jurisprudence.  37 Id. at 271. Muslims can only agree to terms of treaties, which do not conflict the clear and ratification, approval, etc., it must at the same time also deposit a binding declaration under Article 3 (2) in which it sets forth the minimum age at which that State will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced.