Mr.

Justice Muhammad Nawaz Abbasi

Judge, Supreme Court of Pakistan

DOMESTIC APPLICATION
OF
INTERNATIONAL HUMAN RIGHTS NORMS

CONCEPT OF HUMAN RIGHTS:
The concept of human rights is as old as creation of mankind. The human
rights are universal and people inherit these rights simply because they are human and
are entitled to claim and enjoy a humane and dignified life. The basic rights, which are
foundation of all other rights, are more important and of all the basic rights, the most
important is the right to life without which other rights are of no significance. The human
rights protection is an inalienable right of the people regardless of the race, color,
language, sex, nationality, social origin or religion and particularly, for people of
backward areas, poor communities, women, children, disabled persons, prisoners, who
are in a disadvantaged and vulnerable position.
The human rights are claimed as a matter of right and not as a special
favour or privilege and these rights must be acknowledged and respected by all states
as universal commitments because the promotion and protection of human rights is not
confined to the territorial boundaries and the international community must have serious
concern about the human rights across the geo-political frontiers of a particular time and
place.
The human rights are classified into three generations of rights. The
Western block professed the first generation rights which include civil and political
rights i.e. right to life, liberty, security of person, protection against torture, right of fair
trial, right of assembly and association, right of speech and movement and such other
rights whereas, the Socialist Block stressed for the second generation rights which are
economic, social and cultural in nature such as the right to health care, education, food,
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work, shelter and social security etc. third generation rights recently emerged, are
collective or group rights which include right to peace, right to self determination and
right of indigenous people.
The Second World War seriously brought about not only the awareness
but a kind of sensation in the human destiny and agonies. The atmosphere of insecurity,
oppression, discrimination and unjust socio-economic conditions of man prevailed both
at the national and international level and mankind was in quest of peace, harmony and
security in the human life. Consequently, U.N. Conference at San Francisco in which 50
states participated, approved a Charter on World peace for ensuring social justice and
human rights for a stable international order and peace. Later U.N. General Assembly
accepted this Charter of United Nations Declaration of Human Rights on 10
th
of October,
1948 which in itself has no legal sanction but it has a mandate for aspiration and
guidelines for preservation and protection of basic human rights and worth of human
person. In the Pre-amble of this Declaration the recognition of inherent dignity and of the
equal and inalienable rights of all members of human family as foundation of freedom,
justice, peace and faith in basic fundamental human rights, dignity of human person,
equal right of man and woman, social progress and better standard of life was affirmed
with the commitment to promote universal respect for human rights and natural freedom.
The Charter contains the vital principles such as, all human beings are born free and are
equal in dignity and rights; every one is entitled to all rights and freedoms without
distinction of race, colour, sex, language, religion, national or social origin, political
thoughts, birth or other status; every one has the right to life, liberty and security or
person; Slavery and servitude in all forms shall be prohibited; no one shall be subjected
to torture or cruel inhuman and degrading treatment or punishment, arbitrary arrest,
detention or exile and all are equal before law and are entitled to equal protection of law.
The right of fair trial and defence, the right of privacy and family honour; freedom of
movement and of nationality; right of consent to marriage; right of property; right of
thoughts and religion; right of opinion and of peaceful assembly; access to public places;
social security and right to work to form and join trade union; right to rest and leisure;
right of good living, health and education of children and right to enjoy the social and
cultural life with certain duties.

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HISTORY OF HUMAN RIGHTS.
The concept of human rights is rooted in the human rights education and
religious thoughts, philosophy of law, social and political thinking through ages in the
World. Rausseau, Rustin, Plato and socrate gave the concept of equality, fraternity and
harmony. The great saint Buddha introduced the theory of right of self-determination.
Manu Narada, Muni and others in India, contributed in human rights education. Holy
Christ fought for defending the fight to think and speak freely which is the basis of
human rights. In Islam, human rights are innumerable and unlimited to that of Western
philosophy. The Last Holy Prophet Muhammad (Peace Be Upon Him) profoundly
professed in human rights and values for welfare of mankind. Similarly all the religions in
the world recognize the human rights and stress for protection of such rights. In the
modern era of human rights movements, Magna Carta (1215), Bill of Rights (1669),
Habeas Corpus (1670) and Hague Convention (1899), American Declaration of
Independence (1667 AD), Declaration of Rights of Men in France (1789) and Declaration
of United Nation (1948) were the land-marks. The United Nations Declaration was first
step towards the movement for achievement of human rights at global level and to
ensure the realization of rights set out therein, the international conventions were held
for improvement of economic, political, social, cultural and legal environment for
promotion and protection of human rights and a few conventions held on the burning
issues were, on the status of Refugees 1951; on Political Rights of Women, 1953 and on
Elimination of All Forms of Racial Discrimination Against Women 1965 (CWDAW). The
Convention on Civil and Political Rights 1966, on Suppression and Punishment of the
Crime of Apartheid 1973, on Torture and Other Cruel, Inhuman or Degarding Treatment
or Punishment in 1984. Convention on Civil Rights 1990, on the Rights of Child 1989
(CRC) and on the Involvement of Children in Armed Conflicts, the Sale of Children, Child
Prostitution and Child Pornography 2000, Geneva Convention on Slavery 1926; and on
Abolition, the Slave Trade and Institutions and Practices 1956, Convention on the
Prevention and Punishment of the Crime of Genocide War and Crimes Against
Humanity, including Genocide (1948), Convention for the Suppression of the Traffic in
person and of the Exploitation of the Prostitution of Others (1949), Geneva Convention,
for the Amelioration of the Condition of Wounded and Sick persons in Armed Forces at
Sea, Treatment of Prisoners of War, Protection of Civilian Persons in Time of War, 1949.
United Nations Organizations (UNO) Declaration on the Protection of All Persons from
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Torture and other Cruel, Inhuman or Degarding Treatment or Punishment; on the Rights
of Disabled Persons, 1975; on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, 1981; Basic Principles for the Treatment of
Prisoners, 1990; and, on the Elimination of Violence Against Women, 1993; Minimum
Age Convention, 1973; Worst Forms of Child Labour Convention, 1999.
The Universal values of living together in a global village are also
recognized as fundamental principles to protect the human rights and in the light of
these principles, all states which attended Second World Human Rights Conference
held in Vienna in 1993 agreed to the universality of the human rights and made
commitments to provide political, economic, ethical and spiritual vision for social
development that is based on human dignity, human rights, equality, respect, peace,
democracy, mutual responsibility, cooperation, full respect for the various religious,
ethical values and cultural backgrounds of people. The highest priority was emphasized
in national regional and international policies and actions for the promotion of social
progress and justice, and betterment of the human condition of all, based on the
principle of equality.
The struggle to assert and protect the human rights for social justice has
never been controversial and almost all the civilized countries of the world have made
sincere efforts for the inviolability and dignity of man to achieve the objects of the
Universal Declaration of Human Rights, 1948, to respect the human rights and maintain
the international peace and security. Eleanor Roosevelt said, the Declaration has set up
a common standard of achievement for all people and all nations and might well
become an international Magna Carta of all mankind.
Pakistan is a Muslim State and laws in Pakistan are based on the
philosophy of human values in Islam, as ordained in Holy Quran and Sunnah. The last
Holy Prophet, Muhammad (Peace Be Upon Him) while advancing the concept of human
rights (Haqooq-ul-Ibad) strongly forbade the violations of human rights and fought for the
dignity of man and woman, by prohibiting slavery and by recognition of womens rights in
property and marriage with consent. The Holy Prophet (PBUH) in his farewell Sermon
(Khutba-e-Hajjatulawida), which is the first charter of human rights in the World,
emphasized the very equality of mankind and professed human rights as under:-
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(Rights of Women)
(a) Fear Allah concerning women.
Verily you have got certain rights over your women and your
women have certain rights over you.

(b) Verily Allah has ordained to every man the share of
his inheritance.

(c) Your lives, your property and your honour must be as
sacred to one another as this sacred day, this sacred
month, this sacred town.
(Equality)
(d) And You Slaves! See that you feed them with such
food as you eat yourselves; As Clothe them with clothes that you
yourselves wear.

(e) There is no superiority for an Arab over a non-Arab
and for a non-Arab over an Arab; nor for White over
the Black nor for the Black over the white except in
piety.
In Islam, the dignity of mankind is recognized without any distinction of
religion, race, colour, age or gender of a man and humiliation is strictly prohibited. The
accusation for adultery is against the dignity of women. The right of life, liberty and
security is the foundation of human rights in Islam and in preservation of the right of
privacy, entry to the house of others without permission is prohibited. The human rights
(Haqooq-ul-Ibad) are exhaustively recognized in Islam and actually the theory of human
rights in the modern world is based on Islamic concept of Haqooq-ul-Ibad. Allah Almighty
says in Holy Quran: O men, we have created you from a male and a female and made
you into nations and tribes that you might identify one another. The noblest of you in
Allahs view is the most righteous of you. Allah is wise and All knowing. (49/13) And, we
have bestowed dignity upon the mankind(17-70) and: O believers! Let no group
mock another group, who may perhaps be better than it (the mocker). Let no women
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mock another women, who may perhaps be better that herself. Do not defame one
another and do not call one another by nickname. (49/11)
Freedom of right to
association and expression:
Allah Almighty in Verse 42:38 and 3:159 of Holy Quran says: They (pious
people) conduct their affairs by mutual consultation; And involve their consultation in the
affairs. The basic assumption is freedom of indebtedness and in that Each person is
responsible for his own conduct and nobody shall bear the burden of other:
Right to life: Whoever killed human being, except in retaliation or in sedition in the
Earth, should be deemed as though he had killed all mankind.(5-12).
Right of Property, Every person has right to hold or dispose of property, which he has
earned or secured through legal means. Allah Says Do not devour one anothers
property through unfair means (2:188)
Right of privacy: Allah Commands in Quran, O Believers! Do not enter the house of
others until you get permission and then wish them peace (24:27).
The principle of equality is that all human beings as persons have an
equal value in themselves and idea of equality of men as persons and equal treatment
as such is of a metaphysical nature. It underlies all modern, democratic and
humanitarian law systems as a principle of natural law, but his principle of equality is not
absolute and does not exclude the different treatment of persons from the consideration
of the differences of factual circumstances such as sex, age, language, religion,
economic condition, education, etc. and thus to treat different matters equally in a
mechanical way would be as unjust as to treat equal matters differently.
It is not denied that the rights are always linked with duties and whenever
this link breaks, the rights disappear. The right to happiness is natural and without
happiness life becomes miserable and right to equality is an important right without
which happiness cannot be achieved and as such the discrimination is a source of
inequality and the right of equality demands that all human beings born free, are equal in
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rights and dignity and all are entitled to equal protection of law without any
discrimination.
Human rights have always existed with the human beings and existed
independently of, and before, the State, and even Alien and stateless persons must not
be deprived of such rights. These rights belonging to diverse kinds of communities and
societies ranging from family, club, corporation, to state and international community,
must be protected everywhere in this social hierarchy. There must be no legal vacuum in
the protection of human rights. Who can believe, as a reasonable man, that the
existence of human rights depends upon the national or international legislative
measures, of the State to be validly abolished or modified by the will of the State. A law
which exists independently of the will of the State cannot be abolished or modified even
by the Constitution of the State because it is deeply rooted in the conscience of mankind
and of any reasonable man, it may be called natural law in contrast to positive law.
The comparative study of the constitution of the various countries of the
world, would reveal that in recognition of the principle of dignity of human beings and
equal rights of man and woman all are agreed that no one can be deprived of any of his
legal and natural rights on the basis of race, colour, sex, language, religion, political
creed, social status or place of birth and every one has the right to life, liberty and
security. Slavery and servitude, torture, cruelty and inhuman treatment in all forms is
prohibited and every one is equal before law and has equal protection of law without any
discrimination. The right of defence and fair treatment before the court of law, the access
to justice and impartial trial before a tribunal is recognized as a fundamental right. The
protection of privacy and family honour, the freedom of movement within the country and
traveling outside the country, subject to law, are the accepted legal rights of all in all
states. The right of nationality, consent marriage, property, freedom of thought, opinion,
expression and conscience with peaceful assembly and religion are inalienable rights in
all civilized societies. The equal right in the public service, social security, right of
education, right of work and suitable employment without any discrimination and right to
form or join a trade union are recognized through out the World. This is the obligation of
a welfare state to provide the basic necessities of life including food, clothing, medical
care and social service to unemployed, sick, disabled, destitute and widows.
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The Constitution of Pakistan in its preamble defines its objectives to
secure to all citizens social, economic, political justice, liberty of thought, expression,
belief, faith and worship, equality of status, freedom, equality, tolerance, social justice
and opportunity and to promote amongst the people fraternity assuring the dignity of the
individual and the unity and integrity of Nation. The Constitution offers freedom from
exploitation and equal opportunity to all in preference to the vested interest of few and to
enable Muslims to order their lives in the individual and collective spheres in accordance
with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.
The adequate provision has also been made for minorities to freely profess and practice
their religions and develop their cultures. The Constitution has guaranteed fundamental
rights in Chapter II, Articles 9 to 28 as under:
The Security of person, safeguards as to arrest and detention, slavery,
forced labour, etc. is prohibited, protection against retrospective and double punishment
and self incrimination, inviolability of dignity of man, Freedom of movement, Freedom of
assembly, Freedom of association, Freedom of trade, business or profession, Freedom
of speech, etc. Freedom to profess religion and to manage religious institution and
provision as to property and protection of property rights.
Equality of citizens, Non-discrimination in respect of access to public
places, Safeguard against discrimination in services.
The principles of Policy incorporated in Articles 29 to 40 of the
Constitution, relate to promotion of local government institutions, discouragement of
parochial and other similar prejudices, participation of women in national life, protection
of family, etc. protection of minorities, promotion of social justice and eradiation of social
evils, Promotion of social and economic well being of the people, strengthening bonds
with Muslim World and promoting international peace.
In addition to the guarantee of fundamental rights in the Constitution, Pakistan
also having ratified almost all the International Conventions and Declarations on human
rights, has enacted special laws on the rights of women, children, labour, poor, destitute
and distress. A separate Ministry of Women Development, for protection of women rights
is functioning. Women Banks, Women Police Stations and separate complaint cells for
women have been established and special seats in National and Provincial Assemblies
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and Local Bodies for representation of women population of Pakistan have been
allocated. The National Commission on the Status of Women (NCSW), is working for
rights of women. There is reasonable representation of women in the Service of
Pakistan and in all other fields of life particularly in medical and teaching professions.
Under the policy of national plan of action on Beijing Declaration 1995, education and
training is essential to eliminate child labour from all sectors of employment and
awareness programmes must be carried for improvement of child education and socio-
economic condition of poor and unemployed. The State is obliged to improve the socio-
economic condition and quality of life of a common man and solve the problems of
poverty, unemployment, illiteracy, health, water and sanitation, gender injustice,
domestic violence, child labour, human trafficking and sexual harassment. The
Government of Pakistan has set up a separate wing, in the Ministry of Law, J ustice &
Human Rights to promote and protect the human rights by providing legal and financial
assistance to deserving victims of Human Rights violations and by means of human
rights education, mass awareness programme through media, local training, curriculum
development and establishment of Human Rights Study Centers at different places. The
National Commission on Rights of Child (NCCWD) is working to protect the rights of
child and promulgation of Employment of Children Act, 1991 and Bonded Labour
System (Abolition) Act, 1992 have fulfilled the obligation of the Constitution of Pakistan
as well as the international declaration of the Convention on the Rights of Child (CRC)
1989. The priority to solve the problems of minorities and community, forced labour and
human smuggling, development of under-developed areas and improvement of the
condition of poor, destitute, widows and distressed classes of people must be the policy
of state. The right of Environmental Protection is as important as any other right and to
protect this right, Environmental Protection Act, 1997, is in the field in Pakistan but more
effective steps are required to be taken to control pollution and preserve the clean living
environment.
The women and children in Pakistan in criminal cases have the right of
concession of bail and in certain cases; a woman accused cannot be arrested without
the permission of Court. Under Women in Distress and Detention Fund Act, 1996 the
deserving women are provided legal aid and assistance.
The honour killing in the name or pretext of karokari, siyah-kari etc. is a
serious crime in Pakistan. Similarly, human smuggling is prohibited under the law and
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Prevention and Control of Human Trafficking Ordinance, 2002, prescribes severe
punishments for the human trafficking. The buying or disposing of a person is also an
offence under Pakistan Penal Code.
The state must accept the responsibility of providing the human rights
education to its citizens and ensure protection of the human rights, including religious
and social insecurity. Government of Pakistan, in pursuance of UN Charter of human
rights and in observance of the international norms, has taken legislative steps for
establishing National Human Rights Commission announced, in the Convention on
Sensitization and Adoption of Human Rights Standards in Pakistan held by Ministry of
Law, J ustice and Human Rights in 2004. In some other countries, including India, the
law for establishment of such institutions, is in existence.
The courts in Pakistan in general and superior Courts in particular are
main operational source of protection of fundamental rights of people. Supreme Court of
Pakistan has always been vigilant to protect human rights in public interest litigation and
zealously safeguarded the legal rights of the people. In number of cases, the apex court
of the country exercising the original jurisdiction under Article 184 (3) of the Constitution
protected the legal rights of the people.
In Darshan Masih case (PLD 1990 SC 513), bonded labour was declared
illegal and unconstitutional. In a case of Environmental Pollution (PLD 1994 SC 102),
dumping of nuclear or industrial waste was declared in violation of Article 9 of the
Constitution. Similarly, in Mst. Ghulam Sarwar Naqvi case (PLD 1990 SC 1), Court
directed that rights of illiterate and deprived female population of the country in respect
of property and inheritance must be protected. In Shrin Munir case (PLD 1990 SC 295),
the denial of admission in medical colleges only on the basis of sex was declared
unconstitutional. In certain other cases involving violation of rights of women which
included Mukhtara Mai case, Mianwali case of Wanni, Mirawala case and Shaista
Almani case of marriage by choice, appropriate relief was granted to the victims.
In the recent past, the present Chief J ustice of Pakistan having taken Suo
Motu notice of the cases relating to the violation of legal rights of fundamental nature,
issued directions for protection of such rights and few of such cases are as under:-
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In a petition filed by one Dr. Shmas-uz-Zaman Soomro, for restriction on
spurious drugs, direction was issued for taking effective steps to save the human beings
from such drugs. In Suo Motu case No.6 & 8 of 2006 direction was given for provisional
registration of the qualified students of MBBS of Islamabad Medical & Dental College. In
Suo Motu case No.3 of 2004 payment of compensation to the legal heirs of the trainees
of forest department who died due to negligence of department was ordered. In Mst.
Sonia Naz case, (Suo Motu case No.12 of 2005) direction was given for registration of
case of abduction and rape. In Constitution Petition No.26 of 2005, the Court directed for
payment of compensation to the earthquake effectees of Margalla Towers, Islamabad. In
Suo Motu petition No.11 of 2005 kite flying case: the manufacturing and selling of
metallic wire and nylon cord and flying kites with such material was stopped. In Suo
motu Case No.10 and 13 of 2005 involving issue of Environmental Hazard of Proposed
New Murree Project and Housing Schemes, Chalets and Pir Sohawah Valley Villas,
directions were issued for perseverance of the environment.
The domestic application of international standard and norms of human
rights by the States, has certainly shown progress in some areas of social and economic
development and global wealth of nations has multiplied sevenfold in the past 50 years
and international trade has grown even more dramatically. The life expectancy, literacy
and primary education, and access to basic health care, including family planning, have
increased in the majority of countries and average infant mortality has been reduced,
including in developing countries; Democratic pluralism, democratic institutions and
fundamental civil liberties have expanded. De-colonization efforts have achieved much
progress, while the elimination of apartheid is another achievement, yet we find that too
many people, particularly women and children, are vulnerable to stress and deprivation.
Poverty, unemployment and social disintegration too often result in isolation,
marginalization and violence. The insecurity that many people, in particular vulnerable
people, face about the future of their own and their childrens is intensifying. To ensure
social changes, development, poverty reduction and dignity of mankind, for achieving
peace in the world, education in human rights and mass media has a vital role in the
context of right of information, free expression and awareness for realization of these
principles in terms of international norms of human rights and national policy for the
removal of disparities prevailing among different classes in the society.
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The principle of protection of human rights is derived from the concept of
man as a person and his relationship with society in which he is living. Therefore, the
real test to understand domestic application of the international norms and standards
of human rights, is whether the proposal of equal protection of human rights and equality
can find its place in the national and municipal laws of the countries on the basis of
principle of non-discrimination on account of religion, race, colour, sex, language and
political creed. The international norms of human rights are based on universal respect
for human rights and fundamental freedoms for all without distinction as to race, sex,
language or religion and equality of mankind. The existence of natural rights and
obligation to recognize their importance is not confined to individuals rather it is
obligation of state to acknowledge their legal status and it is beyond all doubts that
preference of laws in the municipal system of virtually every state can be established by
Competitive Law Studies and recognition of norms by civilized nations, can be
ascertained.
All States in the world are under moral obligation to apply international
norms of human rights to protect the legal rights of their citizens and prevent violations of
such rights. The violation of a legal right at individual level may infringe the right of an
individual but violation of human rights at national level may be a collective
encroachment of the rights of all the citizens and at international level an abuse of the
standards and norms of morality for the collective respect of human rights in the world.
Despite the laudable and loud pronouncements from all, form of
exploitation and discrimination similar to apartheid, the people of backward countries
continue to suffer and human rights violations at national and international level still exist
and world has not so far been able to achieve the goal of peaceful environment in the
world community. The principle of equality and non-discrimination is not being observed
in the spirit of Universal Declaration of Human Rights as far as people of poor and weak
countries are concerned. The claim of superiority and supremacy of powerful and richer,
at national and international level, has negated the principle of equality and the
interference in the internal affairs of a state by another state is not simply violation of
international law but an aggression and threat to its independence and freedom.
The aim and object of U.N. Declaration of Human Rights, of leading a life
with honour and dignity, has not been fully achieved and human rights violations
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continue in the form of bloodshed and in different other forms in different parts of the
world, in the name of religion, caste, region, language and exploitation of poor by the
rich and of the poor and weak nations by the rich and strong nations. The rule of might
is right is applied to the people of poor nations with a different standard of human
values.
The Constitutions of most of the countries characterize fundamental
human rights as freedoms and freedoms possess a super constitutional significance but
rights and duties are subject to such limitations as are determined by law in a society
and unless the rights have the respect and legal protection, their existence is
meaningless. Therefore, this is moral duty of every state to follow the principles of
Universal Declaration of Human Rights and recognize all civil and political rights of all
the citizens without any distinction. All Member States must respect for the human rights
and must not abuse religious and cultural values for the sake of social, economic and
political interests or human rights violations, which may cause serious injury to the
concept of human dignity and lead to political and ideological differences in the World.
In the end, I take this opportunity to thank the Chair and distinguished
dignitaries and guests who spared time to attend this International Conference.
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THE PAPER READ BY
MR. JUSTICE MUHAMMAD NAWAZ ABBASI,
JUDGE, SUPREME COURT OF PAKISTAN
ON THE TOPIC
DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS
IN THE INTERNATIONAL JUDICIAL CONFERENCE
HELD IN AUGUST, 2006 IN ISLAMABAD
<>

It is matter of great honour and pride for me to read a paper on the topic
of Human Rights before the esteemed guests and participants in this International
J udicial Conference. The topic has made the Conference an auspicious and special
occasion as the concern about Human Rights has indeed become a tribute and
consideration for sanctity of human rights in the Society and no other topic or discussion
about the development is complete, without referring the state of human rights in the
Society.