The rule of law and human rights in Pakistan

Muhammad Shafiq Ahmed
Mian Law Chambers, Faisalabad
mian.msa@gmail.com

Introduction

The Constitution of the Islamic Republic of Pakistan enshrines fundamental rights that mirror international standards, yet the enforcement and protection of these rights within the criminal justice system remain one of the nation’s most enduring challenges. While progressive legislative intent exists, notably in areas addressing women and children's rights, the practical operation of the state's security and law enforcement apparatus often fails to uphold the rule of law. This failure is increasingly compounded by legislative actions that threaten to dismantle the primary guarantor of these rights: an independent judiciary. This article examines the contemporary plight of human rights in Pakistan by focusing on three critical areas within the criminal justice framework: the assault on judicial independence, the systemic perpetuation of abuses like custodial torture and the judicial oversight failures concerning penal statutes that are susceptible to misuse. Ultimately, sustainable human rights protection in Pakistan requires not only legislative reform, but also the restoration of institutional integrity and accountability across the entire justice sector.

Judicial independence and constitutional challenges

The judiciary is the indispensable bulwark against state overreach and human rights violations. Recent legislative efforts in Pakistan, however, have raised profound alarm regarding the integrity and autonomy of the country’s higher courts. These developments are directly relevant to the criminal law community, as a weakened judiciary is less able to provide effective remedies against illegal detentions, enforce due process or hold state actors accountable for abuses.

A specific focal point has been the legislative mechanisms designed to influence the judiciary’s structure and personnel. Concerns articulated by international legal bodies, including the International Bar Association’s Human Rights Institute (IBAHRI), centre on laws that may be perceived as granting undue control to the executive or Parliament in situations of judicial appointments, transfers or the tenure of senior judges. When the perception of political interference permeates the judicial environment, the ability of judges to rule fearlessly on politically sensitive cases, particularly those involving allegations of abuse carried out by security forces or high-profile political figures, is severely undermined.

Furthermore, the lack of security concerning one’s tenure or perceived threats to a person’s promotion can have a chilling effect on judges who are considering fundamental rights petitions. For instance, judges tasked with examining cases of enforced disappearances, which constitute a grave violation of fundamental rights and involve a criminal law procedure, require absolute impartiality and protection against influence. If judicial independence is compromised, the likelihood of a court demanding that state agencies comply with constitutional mandates, produce the disappeared person or initiate criminal proceedings against the officials involved diminishes substantially.

The constitutional structure guarantees remedies for fundamental rights violations, notably through petitions under Article 184(3) or Article 199 of the Constitution of the Islamic Republic of Pakistan. However, the effectiveness of these remedies is directly proportional to the judiciary’s strength. When constitutional challenges relating to controversial anti-terrorism legislation or preventive detention laws are handled by courts perceived to be under pressure, the resulting judgments risk being viewed through a political, rather than purely legal, lens. Thus, securing genuine judicial autonomy is not merely an institutional matter; it is a precondition for the effective application of criminal law in the service of human rights.

Systemic failures during the criminal law process

The theoretical rights guaranteed by the Constitution are often nullified by persistent, systemic failures within law enforcement and investigative agencies. This gap between the law in form and the law in practice fundamentally undermines due process and the integrity of the criminal justice system.

Custodial torture and the illusion of accountability

Perhaps the most visceral and routine violation of fundamental rights is the continued practice of custodial torture. Despite Pakistan’s ratification of the United Nations Convention Against Torture (UNCAT) in 2010 and its subsequent enactment of the Torture and Custodial Death (Prevention and Punishment) Act 2022 (TCDA), evidence suggests that its use remains a deeply entrenched investigative tool.

The TCDA is a historic legislative step, explicitly criminalising torture and custodial death carried out by public officials and rendering evidence obtained through these means inadmissible. However, significant shortcomings persist that dilute the TCDA’s effectiveness:
 

• limited definition and scope: the TCDA has been criticised for not explicitly including psychological pain and suffering in its core definition of torture, despite superior courts interpreting Article 14(2) of the Constitution to encompass psychological abuse;
• a lack of specific penalties: the TCDA, in some key areas, falls back on the general punishment provisions set out in the Pakistan Penal Code (PPC) rather than establishing standalone penalties commensurate with the gravity of torture, an offence that requires specific deterrence and punishment under international law; and
• jurisdictional hurdles: the TCDA mandates that investigations into offences committed by provincial police be conducted exclusively by the Federal Investigation Agency (FIA). This federal-level investigative primacy over provincial police actions creates practical, structural and political barriers that hinder prompt and effective investigations and referrals of complaints.

While the courts have recently applied the TCDA in landmark cases, and government reports note an upward trend in case registration, the culture of impunity among low-level functionaries, coupled with the systemic under-resourcing and poor implementation of the TCDA’s procedural safeguards, means the fundamental human right to be free from torture remains theoretical for countless detainees.

Enforced disappearances: the legal black hole

The ongoing practice of enforced disappearances represents a failure of the criminal justice system at its most profound level, transforming a human rights violation into an instrument of state policy, particularly in regions like Balochistan. An enforced disappearance is a crime against humanity because it removes the victim from the protection of the law entirely.

Despite continuous calls from the UN Working Group on Enforced or Involuntary Disappearances (WGEID) and domestic human rights bodies, Pakistan has yet to enact comprehensive legislation that explicitly criminalises the practice in line with international standards. A bill to amend the PPC and Code of Criminal Procedure was passed by the National Assembly in 2021, but it subsequently stalled. Crucially, that draft bill was heavily criticised for containing provisions that:

• penalised ‘false’ complaints. This created a risk of imprisonment for families or activists who lodged complaints if the allegation was deemed mala fide, an action that violates UNCAT provisions designed to protect complainants;
• used ambiguous language. This criminalised disappearances only if carried out ‘illegally and without lawful authority’, an element which rights groups argued could provide a loophole to legalise the use of the practice pursuant to certain specific state mechanisms; and
• the Commission of Inquiry on Enforced Disappearances (COIED), while successfully tracing many individuals, functions primarily as a fact-finding and reconciliation body, not a criminal prosecution mechanism. Its inability to ensure the registration of the First Information Reports (FIR) against alleged state perpetrators or compel their prosecution leaves the crime outside the purview of the formal criminal justice process, sustaining a cycle of zero accountability and perpetual anguish for victims’ families. The recent passage of the Anti-Terrorism (Balochistan Amendment) Act 2025, granting security forces sweeping powers to carry out preventive detention without judicial oversight, further risks legalising what is functionally an enforced disappearance and severely undermining the fundamental rights to liberty and due process.

Blasphemy laws and vulnerable populations

While the failures of the state apparatus are stark, the plight of human rights in Pakistan is also acutely exposed through the application of specific penal statutes that are frequently weaponised against vulnerable populations. The most prominent example is the cluster of blasphemy laws within the PPC, which carries life imprisonment or the death penalty, and has generated a culture of fear, mob violence and procedural abuse that fundamentally undermines the principles of due process and the freedom of expression.

The weaponisation of blasphemy laws

Sections 295-B and 295-C of the PPC, which criminalise derogatory remarks about the Holy Prophet and the Holy Quran, were designed to prevent religious offenses. However, their procedural implementation has become a mechanism for social persecution, particularly against religious minorities and individuals caught in personal disputes. The human rights crises generated by these laws include:

• vigilante justice, as the severity of the penalty, combined with religious fervour, means that the mere accusation of blasphemy often triggers immediate and violent mob action and extrajudicial killings. The failure of law enforcement to protect the accused, and the subsequent pressure on the courts to impose severe sentences, highlights the catastrophic breakdown of the state’s monopoly on violence and justice;
• procedural failures, as cases often proceed with insufficient scrutiny. Police are often reluctant to dismiss or properly investigate accusations, fearing reprisals from influential religious groups. Moreover, bail for the accused is exceptionally difficult to obtain, resulting in prolonged pre-trial detention that itself constitutes a significant violation of a person’s liberty; 
• judicial reluctance, as while superior courts have occasionally stepped in to scrutinise the evidence and overturn convictions, judges at all levels often face intense societal pressure, creating a climate where the risk of miscarriages of justice is exceptionally high, and acquittals are rare. This system turns the criminal process into the punishment itself, regardless of the ultimate verdict; and
• the balancing act of progressive reform. In contrast to the regressive enforcement of the country’s blasphemy statutes, Pakistan’s legislature has demonstrated an undeniable, although often contested, commitment to progressive legal reform aimed at protecting specific vulnerable groups, particularly women and children. Key legislative developments include:
  • anti-honour killing legislation (2016). Amendments to the PPC and Code of Criminal Procedure significantly curtailed the ‘compromise’ or Qisas and Diyat (retribution and blood money) provisions previously available to killers who murdered in the name of honour, thus ensuring that these types of murders are treated as non-compoundable offences; and
  • the Enactment of the Anti-Rape (Investigation and Trial) Act (2021). This law introduced critical reforms to streamline the legal process for rape trials, including the mandatory establishment of special courts, a focus on digital evidence and the introduction of a victim-centric approach.

However, the efficacy of these progressive statutes is severely hampered by the systemic institutional weaknesses that plague the broader human rights landscape. Police training remains inadequate, forensic evidence collection is often substandard and the prevalence of deep-seated patriarchal societal attitudes continues to influence the investigative and prosecutorial decisions at the level of the lower judiciary and the police. Therefore, while the form of the law has advanced towards upholding international human rights standards, the failure to secure effective and impartial enforcement prevents these reforms from translating into full protection for victims. The conflict between progressive law and regressive practice defines the current human rights dynamic in Pakistan. 

Conclusion and recommendations

The trajectory of human rights within Pakistan’s criminal justice system is marked by a deep and persistent conflict between constitutional aspirations and institutional failures. While the legal framework provides robust guarantees, from the right to due process to the prohibition of torture, the system’s operation is consistently undermined by political interference, resource constraints and a chronic lack of accountability.

The recent legislative attempts to restructure the judiciary and grant vast preventive detention powers, coupled with the systemic impunity for custodial torture and the weaponisation of statutes like the blasphemy laws, confirm that the rule of law is currently in retreat.

To bridge this chasm between the law and the reality, sustainable reform must focus on institutional integrity and accountability, not merely the passing of new legislation. The International Bar Association, particularly through its Criminal Law Committee and Human Rights Institute, advocate for the following targeted interventions:

Upholding judicial autonomy

The international legal community must condemn and encourage the repeal of any legislative provisions that undermine the security of tenure, appointment transparency or the functional independence of the superior judiciary. The ability of judges to act as the final check against executive and state excesses in criminal matters is non-negotiable in order to protect fundamental rights.

To restore accountability for crimes perpetrated by the state, the effective implementation of the TCDA is paramount. This requires:

• mandatory training. This means compulsory, rigorous training for all law enforcement personnel on the use of forensic evidence and investigative techniques, coupled with strict liability for officers who fail to report or prevent torture; and
• investigative independence. This means the creation of a fully independent, civilian-led investigative mechanism, outside the purview of the FIA and provincial police, with dedicated resources and authority to prosecute state actors accused of custodial abuse and extrajudicial killings.

Ending the impunity of enforced disappearances

Pakistan must move beyond fact-finding commissions and enact a domestic law that criminalises enforced disappearance in full compliance with international conventions. Any such legislation must: 

• ensure that these crimes are tried in ordinary civilian courts;
• exclude all provisions that penalise ‘false complaints’ in order to protect victims’ families and activists; and
• establish clear, accessible remedies and compensation mechanisms for victims.

By focusing global attention and legal expertise on these core institutional deficiencies, the IBA can help push for a criminal justice system in Pakistan where constitutional rights are not just written principles but are enforced realities.