From ratification to reality — enforcement gap in rights cases

Enforcement gap refers to the inconsistency between established rules and principles and their actual realisation, leading to the situation where recognised rights and standards are violated. Pakistan's constitutional framework guarantees a strong foundation for human rights, including the Right to life (Article 9), Dignity (Article 14) and Equality (Article 25) in Chapter I Part II of the Constitution. But apart from domestic guarantees, Pakistan has also signed several international human rights treaties and conventions such as International covenant on Civil and Political Rights (ICCPR), Convention Against Torture (CAT), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC). By ratifying these conventions, Pakistan has vowed to systematise its domestic legal system with international human rights standards. However, despite these commitments, an enforcement gap remains. Pakistan recognises rights on paper, but implementation in courts lags.

Pakistan has ratified several international conventions on human rights. Due to the legally binding obligation under international law, Pakistan has incorporated international commitments into domestic laws such as Domestic Violence (Prevention and Protection) Act 2012, Protection Against Harassment of Women at the Workplace Act 2010, Criminal Law (Offenses Relating to Honour Killing) Act 2016, Criminal Laws (Amendment) Act 2021, Anti-Rape (Investigation and Trial) Act 2021 and Torture and Custodial Death (Prevention and Punishment) Act 2022. While ratification has resulted in these important legal reforms, the enforcement gap between international obligations and domestic measures still exists.

Judicial Enforcement Gaps in Pakistan

Pakistan's judicial capacity has been deeply eroded over the years. Despite domestic legislation on important human rights gaps in Pakistan, the enforcement gaps by our courts still exist in terms of acquittal rates in severe human rights violations.

The 2016 Murder case of model Qandeel Baloch, which sparked heat and resulted in the arrest of her brother Waseem Azeem, who later admitted to the killing in the name of "honour", is a clear example. Although Pakistan's parliament, in the wake of Qandeel's murder, passed legislation against "honour killing" in October 2016 and made honour killing a distinct offence with life imprisonment (25 years) as punishment, even if the victim's family pardons the perpetrator under qisas, Waseem was acquitted by the Pakistani courts after the family's pardon.

In the Naqeebullah Mehsud encounter case of 2018, the anti-terrorism court acquitted ex-SSP and 13 others over the charges of extrajudicial killing despite the JTI findings that the encounter was forged.

Although the federal government marked torture and custodial deaths as crimes by approving the Torture and Custodial Death (Prevention and Punishment) Act 2022 (TCDA), the HRCP reported 27 deaths in police custody in September 2023 and nearly no convictions were reported. Furthermore, a research by NCHR showed 1,424 torture cases in Faisalabad from 2006 to 2012 with inquiries that largely went nowhere, indicating grave violation of human rights of victims.

Judicial Misapplication of Compoundability Rules

Another notable enforcement gap by Pakistani courts is the permitting of wrongful pardon of non-compoundable offenses. Section 345 of CrPC states that offences that cannot be pardoned are non-compoundable, such as Hudood offenses, which include rape cases as a major example and honour killing cases as an exception. These crimes are legally non-compoundable, but courts have still validated pardon, settlement or compensation. Section 311 of PPC, as amended in 2016, marked "honour killing" as non-compoundable. Section 376(5) of PPC marked rape as non-compoundable and non-bailable offence when committed against minors, disabled individuals or by public officials, but still a pardon was allowed in several instances.

In the 2012 Marriott Hotel Islamabad rape case, where a woman was allegedly raped by a businessman and an assistant director at the FIA, both the accused were released on bail after the victim pardoned them under pressure. Soon after, the FIR was canceled, and the case disappeared as if it never existed.

Such misapplication of compoundability rules has consequences for Pakistan's justice system. In a system where courts allow pardon in grave non-compoundable offences such as rape and honour killing, the rule of law gets eroded and influential perpetrators are benefited, resulting in denial of justice to the victims, as these cases are meant to be treated as crimes against the state. This leaves a serious question mark on our judicial system, indicating that the system's approach is now rooted in perceptions of selective justice instead of providing justice equally. Allowing compromises in such cases also violates commitments under ICCPR and CEDAW to ensure protection against inhuman treatment and gender based violence.

Policy vs Practice

Pakistani law has clear provisions regarding offences that are non-compoundable and non-bailable, such as section 376(5) PPC, marking rape as non-compoundable, and section 311 PPC, marking honour killing as non-compoundable. Section 345 CrPC clearly imparts that only Hudood and grave crimes are non-compoundable. These laws reflect Pakistan's formal policy towards these heinous crimes. In contrast, our courts still decide cases under social or political pressure. Rape and honour killing cases are still subjected to compromise, custodial deaths and police torture cases are still left unheard, and enforcement becomes even weaker for influential figures.

But the question is, why do these gaps exist? Some outdated cultural norms support these scenarios in the name of honour or family reputation, and some judges also prioritise restoring family honour due to a lack of judicial training on compoundability rules and political pressure.

Despite having laws that clearly prohibit compromises in such heinous crimes, our courts still allow settlements, undermining justice. Judges and prosecutors must be trained and must strictly enforce provisions of these laws on standards of conventions and treaties signed by Pakistan under international law, such as ICCPR, CEDAW, CAT, etc. The Supreme Court can set up judicial monitoring cells to ensure lower courts comply with these laws. Unless courts align their powers with the clear provisions of the law, the enforcement gap will remain wide and justice will remain out of reach.