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A/HRC/WGAD/2021/37

Opinion No. 37/2021 concerning Muhammad Ismail (Pakistan)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2021-09-10 · en UN

Opinion; Subjects: PAKISTAN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.21-13959(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-first session, 6–10 September 2021

Opinion No. 37/2021 concerning Muhammad Ismail (Pakistan)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 42/22.

2.

In accordance with its methods of work,1 on 19 April 2021, the Working Group

transmitted to the Government of Pakistan a communication concerning Muhammad Ismail.

The Government has not replied to the communication. The State is a party to the

International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2021/37

General Assembly

Distr.: General

1 October 2021

Original: English

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Submissions

Communication from the source

4.

Muhammad Ismail is a citizen of Pakistan, born in 1955. He usually resides in the

village of Marghuz, Swabi District, in Pakistan.

5.

The source reports that Mr. Ismail is a human rights activist who has a long-standing

record of work on peacebuilding, countering violent extremism, democracy, youth

empowerment, rural development, freedom of speech and political empowerment of

communities. Mr. Ismail has founded several non-governmental organizations, including

Rural Initiatives in Sustainability and Empowerment and NGOs Coalition on Child Rights.

The latter focused on child rights in the context of child labour, corporal punishment, children

in street situations, child sexual abuse and child marriage.

6.

In addition, Mr. Ismail served as the Chairperson of the Pakistan National AIDS

Consortium, a national consortium of organizations working towards the prevention and

treatment of HIV/AIDS in Pakistan. He was also a co-founder of the Joint Action Committee,

which sought to counter religious extremism. Prior to his detention, Mr. Ismail was an active

member of CIVICUS: World Alliance for Citizen Participation, an international organization

that supports civic freedoms.

7.

The source adds that Mr. Ismail is the father of the human rights activist, Gulalai

Ismail. She has spoken out against the increasing incidence of sexual violence, citing the case

of the rape and murder of a 10-year-old girl. As a result, she was forced to hide for several

months and eventually had to flee Pakistan for fear of losing her life. It became known that

she was living in exile abroad in September 2019.

Proceedings against Mr. Ismail

a.

First proceedings

8.

The source outlines several cases against Mr. Ismail. The first involves an alleged

cybercrime for speaking against government institutions. On 24 October 2019, Mr. Ismail

was forcibly abducted from outside the Peshawar High Court by unidentified men. He was

later handed over to the Federal Investigation Agency cybercrime unit. Mr. Ismail was

produced in court within 24 hours, on 25 October 2019. On 24 October 2019, the United

States Department of State had issued a statement seeking his release.

9.

According to the source, Mr. Ismail was charged under the Prevention of Electronic

Crimes Act with “hate speech” and “spreading false information against government

institutions”. He was detained for more than a month in conditions that may amount to cruel,

inhuman and degrading treatment.

10.

On 25 November 2019, the Peshawar High Court granted conditional bail to Mr.

Ismail and he was released. On 20 April 2020, he was summoned for a court hearing after

the Federal Investigation Agency filed an appeal at the Peshawar High Court to revoke the

conditional bail.

11.

On 29 January 2021, after almost weekly hearings on the Federal Investigation

Agency appeal to revoke the conditional bail, the High Court ordered Mr. Ismail to stop using

social media, otherwise his bail would be cancelled. The source alleges that the Court did not

dismiss the Federal Investigation Agency’s appeal in order to exert pressure on Mr. Ismail.

The hearings concerning this case are ongoing.

b.

Second proceedings

12.

The second case against Mr. Ismail was brought under the Anti-Terrorism Act for the

alleged crimes of terrorism, financial terrorism, sedition and criminal conspiracy. The source

explains that this case was launched as a result of the human rights advocacy work of Gulalai

Ismail. On 21 May 2019, she participated in a protest condemning increasing sexual violence

linked to militarization. Three cases were filed against her after her two-minute speech. The

charges mentioned in the First Information Report accused her of incitement to hatred,

violence against State institutions and delivering seditious speech. According to the source,

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the Report mentions sections 124-A (sedition), 153-A (promoting enmity between different

groups) and 500 (punishment for defamation) of the Pakistan Penal Code, and sections 6 and

7 of the Anti-Terrorism Act, 1997.

13.

The source alleges that numerous military operation-style raids were subsequently

conducted on Ms. Ismail’s family home. Her relatives and friends have also allegedly been

subjected to surveillance and torture to extract information about her from them.

14.

On 27 May 2019, the media reported that Ms. Ismail had been blacklisted, despite

already being on the Exit Control List. On the same day, news reports stated that a petition

was heard in the High Court to delete and block Ms. Ismail’s social media accounts.

According to the reports, the Court sought replies from the Pakistan Telecommunications

Authority, the Pakistan Electronic Media Regulatory Authority, the Federal Investigation

Agency and the Federal Ministry of Interior. According to the source, the judge stated that it

was necessary for the Electronic Media Regulatory Authority to take appropriate action if

anybody spoke against religion, the State or its institutions.

15.

The source refers to a joint urgent appeal sent on 29 May 2019 by several special

procedure mandate holders.2 In the appeal, the mandate holders expressed serious concern at

the alleged existence of a State “kill list” containing the names of 15 individuals, including

that of Ms. Ismail. The appeal also referred to charges brought against her, which appeared

to be directly related to her legitimate work defending the human rights of the Pashtun

community. The experts also raised the inclusion of Ms. Ismail on a no-fly list and the

surveillance of persons associated with her.

16.

On 6 July 2019, after the authorities failed to arrest Ms. Ismail, they lodged a First

Information Report accusing her, Mr. Ismail and his spouse of financing terrorism under

section 11 of the Anti-Terrorism Act. According to the First Information Report, Mr. Ismail

received money that had been transferred to his bank account by his daughter, and used it to

support terrorist activities. The First Information Report was based on reports of intelligence

agencies and the counter-terrorism unit of the Federal Investigation Agency. Mr. Ismail and

his spouse were granted bail in this case. They have also submitted an appeal before the

Peshawar High Court.

17.

In the course of the proceedings, which lasted for nearly one year, additional charges

of sedition under sections 124-A and B of the Penal Code and terrorism under section 7 of

the Anti-Terrorism Act were added to the First Information Report. Throughout the

proceedings, the Court requested the Counter Terrorism Authority and the Federal

Investigation Agency to produce evidence in support of the accusations. The source alleges

that, on every court date, these institutions sought additional time to produce evidence, which

was granted in every case. On 2 July 2020, this case was dismissed as the Prosecutor was not

able to submit any evidence related to the charges.

18.

The source adds that, before the judge discharged Mr. Ismail and his spouse, he asked

the prosecutor to read out the conclusion of the Counter Terrorism Authority and Federal

Investigation Agency report, which was the basis of the First Information Report. According

to the source, the report clearly stated that the prosecution had not found any terrorist activity

or link to the financing of terrorism during the investigation, and that the institutions would

not testify in court.

19.

In addition, the source claims that, in an attempt to prove that Mr. Ismail and his co-

defendants were terrorists, the prosecutor presented a video of the two-minute speech that

Mr. Ismail’s daughter had delivered on 21 May 2019. The judge reportedly remarked that it

is the right of the people to protest against human rights violations, and if a citizen is blaming

an institution for any violation of rights, his or her claims should be investigated, rather than

prosecuting activists.

2 The joint urgent appeal is available at

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24650.

The Government’s response, dated 25 June 2019, is available at

https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=34760.

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20.

Two months after the discharge of the defendants, the Counter Terrorism Authority,

at the request of the security agencies, submitted new statements as evidence of terrorist

activity and reopened the case with additional charges of terrorism, sedition and conspiracy

against the State. The source alleges that the statements were taken from proxies of security

agencies in an attempt to link Mr. Ismail’s daughter and her parents with terrorist groups,

terrorism and financial terrorism.

21.

According to the source, the case was reopened before another judge. On 30

September 2020, the Anti-Terrorism Court in Peshawar heard the case and charged Mr.

Ismail and two co-defendants under sections 120-B and 124-A of the Penal Code, which

relate to conspiracy and sedition, and under sections 7 (g) and 11N of the Anti-Terrorism

Act. These charges carry heavy prison sentences. The defendants pleaded not guilty and the

trial has commenced.

22.

The source notes that, according to applicable legal provisions, the case should be

heard again only by the same judge who previously made the decision to discharge the

defendants. On 30 September 2020, in light of the new evidence, Mr. Ismail and his two co-

defendants were indicted on charges of funding two terrorist attacks. These attacks allegedly

took place on a church in 2013 and a Shia mosque in 2015 in Peshawar.

23.

The source submits that the statements regarding the alleged involvement of Mr.

Ismail and his co-defendants in the attacks were recorded eight and five years respectively

after the attacks, after the court had discharged the defendants due to the lack of evidence.

The source submits that this fact points to the fabrication of charges.

24.

On 2 February 2021, Mr. Ismail was arrested in the Anti-Terrorism Court in Peshawar

while he was attending his bail confirmation hearing in the First Information Report lodged

under the Anti-Terrorism Act against him and his spouse. While his spouse’s bail was

confirmed, Mr. Ismail was handcuffed and taken away. According to the source, Mr. Ismail

was not given any reason for his arrest and the authorities did not show an arrest warrant.

The judge of the Anti-Terrorism Court denied him bail before he was arrested under a First

Information Report dated 6 July 2019.

25.

On 3 February 2021, Mr. Ismail was brought before a judge and ordered to remain in

pretrial detention, where he will stay until trial. On the same day, he was taken to the Counter

Terrorism Authority police station. During his remand, Mr. Ismail’s family homes in

Islamabad and Swabi were raided. The source alleges that attempts were made to plant forged

evidence and receipts.

26.

On 4 February 2021, Mr. Ismail was taken, bound in chains, by members of the

Counter Terrorism Authority to his home in the village of Marghuz, Swabi District. On 5

February 2021, the Counter Terrorism Authority police raided his rented house in Islamabad.

27.

On 8 February 2021, Mr. Ismail was presented before the Anti-Terrorism Court in

Peshawar. The hearing was adjourned until 15 February 2021. His spouse was exempted

from attending further court sessions.

28.

On 15 February 2021, the Anti-Terrorism Court in Peshawar denied Mr. Ismail’s bail

application, despite his health situation following the coronavirus disease (COVID-19)

pandemic. Mr. Ismail was transferred to Peshawar Central Jail where he has been kept in

poor conditions in an overcrowded cell with more than 60 people. According to the source,

Mr. Ismail is forced to sleep on the floor and is not allowed to receive medicines, food, clothes

or toiletries from home. He is given substandard food despite his severe medical conditions,

including a neurological disorder, dislocated discs in his back, kidney pain and high

creatinine levels. Mr. Ismail has been denied medical care for his hypertension and other

chronic conditions. He contracted COVID-19 when he was forced to stay in an overcrowded

yard in the prison.

29.

The source states that the date of the forthcoming court hearing remains unknown.

The source claims that Mr. Ismail is being denied his right to consult with his lawyer

confidentially.

30.

According to the source, Mr. Ismail and his spouse have been placed on the Exit

Control List, preventing them from joining their children abroad. Neither Mr. Ismail nor his

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spouse were promptly notified of their placement on this list. The source alleges that the Exit

Control List notification, backdated to 18 October 2019, was sent to Mr. Ismail’s spouse in

February 2020. The letter mentions that she was placed on the Exit Control List to prevent

her from going abroad to speak to human rights organizations, as that would damage the

reputation of Pakistan. In addition, Mr. Ismail’s bank accounts have been frozen.

c.

Allegations against Mr. Ismail

31.

The source states that Mr. Ismail is currently accused of several crimes, including anti-

State activities and financing terrorism, and having bank accounts with the aim of supporting

terrorists, under section 11N of the Anti-Terrorism Act. Secondly, it is alleged that he

published and disseminated anti-State material through different media for the purpose of

inciting religious, sectarian or ethnic hatred in the State, under section 11W of the Anti-

Terrorism Act.

32.

Mr. Ismail is also accused of aiding and abetting terrorist offences on 22 September

2013 and 13 February 2015 while attacking Saint John Church near Murad Shah Baba Ziarat

and Immaia Mosque situated in Peshawar by providing arms, ammunition and a vehicle, in

contravention of section 21I of the Anti-Terrorism Act.

33.

Moreover, Mr. Ismail is accused of supporting terrorists and organizations that finance

them. Pursuant to an agreement on 16 April 2015 and 16 December 2015, he allegedly

received an amount in United States dollars to use in terrorist activities. This offence is

punishable under section 120-B of the Penal Code. Furthermore, he is accused of attempting

to incite hatred and dissatisfaction with the Government, contrary to section 124-A of the

Penal Code.

d.

Analysis of violations

34.

The source submits that Mr. Ismail’s detention falls under categories I, II and III.

i.

Category I

35.

In relation to category I, the source argues that Mr. Ismail’s detention is arbitrary

because the authorities lack any substantive evidence to justify his detention. Moreover, Mr.

Ismail was charged under a vague and overbroad provision of the Penal Code. Mr. Ismail is

accused of anti-State activities, financing terrorism and having bank accounts with the aim

of supporting terrorism, under the provisions of the Anti-Terrorism Act, which is a vague and

broad piece of legislation.

36.

The source recalls that article 11 (2) of the Universal Declaration of Human Rights

and article 15 (1) of the Covenant guarantee individuals the right to know what the law is and

what conduct violates the law. The Human Rights Committee has stated that “any substantive

grounds for arrest or detention must be prescribed by law and should be defined with

sufficient precision to avoid overly broad or arbitrary interpretation or application”.3 It has

also indicated that a law “must be formulated with sufficient precision to enable an individual

to regulate his or her conduct accordingly”.4

37.

In the present case, the provisions of the Anti-Terrorism Act (sect. 11N) and the Penal

Code (sects. 120–124) cited by the authorities are formulated in a vague way. The authorities

failed to prove how having a bank account and making daily bank transactions, both

domestically and internationally, amounted to supporting or financing terrorism. The vague

formulation of these provisions permits the authorities to arbitrarily apply them, as is the case

for Mr. Ismail.

ii.

Category II

38.

In relation to category II, the source states that the authorities arrested and detained

Mr. Ismail on the basis of his exercise of the rights to freedom of opinion and expression and

to peaceful assembly. The source recalls that article 19 (2) of the Covenant provides that

3 Human Rights Committee, general comment No. 35 (2014), para. 22.

4 Human Rights Committee, general comment No. 34 (2011), para. 25.

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everyone shall have the right of freedom of expression and that this right shall include

freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers,

either orally, in writing or in print, in the form of art, or through any other media of his or her

choice. The right to freedom of opinion and expression is vital to the work of human rights

defenders. The Human Rights Committee has stated that the right to freedom of expression

under article 19 of the Covenant includes canvassing and discussion of human rights.5

39.

Furthermore, article 21 of the Covenant provides that the right of peaceful assembly

shall be recognized. This right is also protected under article 20 (1) of the Universal

Declaration of Human Rights. In its resolution 15/21, the Human Rights Council specifically

called upon States to respect and fully protect the rights of all individuals to assemble

peacefully, including persons espousing minority or dissenting views or beliefs and human

rights defenders (para. 1).

40.

According to the source, Mr. Ismail was arrested and detained due to his activities as

a human rights activist. Mr. Ismail has been at the forefront of Pakistani civil society for

decades. He is the Secretary of the Pakistan NGOs Forum, which is the apex body of several

Pakistani civil society organizations. The source argues that Mr. Ismail’s arrest and detention

were carried out with the aim of ending his advocacy activities.

41.

The source submits that, while the rights to freedom of opinion and expression and

peaceful assembly are not absolute, none of the exceptions to these rights apply to Mr.

Ismail’s case. Under international law, the rights to freedom of opinion and expression and

to peaceful assembly may be restricted only in limited circumstances. The Human Rights

Committee has established a three-part strict test of justification in analysing limitations on

such fundamental rights.6 For a given limitation to be permissible, the limitation must: (a) be

provided for by law; (b) serve an enumerated purpose; and (c) be necessary to achieve that

purpose.7 The enumerated purposes for which a Government may restrict these fundamental

rights are to protect national security, public safety and public order, public health, and the

fundamental rights and freedoms of others.

42.

The Human Rights Committee has emphasized that such restrictions must not “put in

jeopardy the right itself”.8 It is not sufficient for a Government merely to invoke one of the

enumerated exceptions; it must “specify the precise nature of the threat” posed by the

protected activity,9 establish a “direct and immediate connection between the expression and

the threat” and demonstrate why the limitation was necessary.10 Furthermore, the Human

Rights Committee has been clear that article 19 (3) of the Covenant must never be used to

justify “the muzzling of any advocacy of … human rights”.11

43.

The source argues that the arrest and detention of Mr. Ismail falls outside any possible

legitimate restriction on the right to freedom of opinion and expression. Mr. Ismail was

targeted due to his advocacy and work as a human rights defender. For this reason, the

Government has acted in violation of articles 19 and 20 of the Universal Declaration of

Human Rights and articles 19 and 21 of the Covenant, rendering Mr. Ismail’s detention

arbitrary under category II.

44.

The source submits that Mr. Ismail’s right to freedom of movement under article 12

of the Covenant has been violated. Freedom to leave the territory of a State may not be made

dependent on any specific purpose or on the period of time the individual chooses to stay

outside the country. Thus, travelling abroad is covered, as well as departure for permanent

emigration. Likewise, the right of the individual to determine the State of destination is part

of the legal guarantee. As the scope of article 12 (2) is not restricted to persons lawfully

5 Ibid., para. 11.

6 Tae-Hoon Park v. Republic of Korea (CCPR/C/64/D/628/1995), para. 10.3.

7 Shin v. Republic of Korea (CCPR/C/80/D/926/2000), para 7.2.

8 Human Rights Committee, general comment No. 34 (2011), para. 21.

9 Jong-Kyu Sohn v. Republic of Korea (CCPR/C/54/D/518/1992), para. 10.4.

10 Human Rights Committee, general comment No. 34 (2011), para. 35.

11 Ibid., para. 23.

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within the territory of a State, an alien who is being legally expelled from the country is

entitled to choose the State of destination, subject to the agreement of that State.12

45.

In order to enable the individual to enjoy the rights guaranteed under article 12 (2) of

the Covenant, obligations are imposed on the State of residence and on the State of

nationality. Since international travel usually requires appropriate documents, in particular a

passport, the right to leave a country must include the right to obtain the necessary travel

documents. The issuing of passports is normally incumbent on the State of nationality of the

individual. The refusal by a State to issue a passport or prolong its validity for a national

residing abroad may deprive this person of the right to leave the country of residence and to

travel elsewhere.

46.

Mr. Ismail and his spouse have been placed on the Exit Control List, preventing them

from leaving Pakistan. Mr. Ismail’s request for a passport was rejected. The source remarks

that none of the exceptions, as provided for under article 12 (3) of the Covenant, apply to Mr.

Ismail. The authorities did not show how the test of necessity and the requirement of

proportionality have been met.

iii.

Category III

47.

In relation to category III, the source submits that due process is at the core of the

right to a fair trial. The minimum international standards of due process are established in the

Covenant, the Universal Declaration of Human Rights, the Body of Principles for the

Protection of All Persons under Any Form of Detention or Imprisonment and the United

Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela

Rules).

48.

Mr. Ismail’s arrest and continued pretrial detention violate article 9 of the Universal

Declaration of Human Rights and article 9 (1) of the Covenant. His arrest and detention are

based on his work as a human rights defender and are therefore unfounded. Article 9 (1) of

the Covenant guarantees that no one shall be subjected to arbitrary arrest or detention. This

right is also enshrined in article 9 of the Universal Declaration of Human Rights. The Human

Rights Committee has emphasized that the “notion of arbitrariness” in article 9 of the

Covenant is not to be equated with “against the law”, but must be interpreted more broadly

to include elements of inappropriateness, injustice, lack of predictability and due process of

law, as well as elements of reasonableness, necessity and proportionality.13

49.

Moreover, the source submits that Mr. Ismail’s right to be released pending trial has

been violated. Article 9 (3) of the Covenant guarantees an individual’s right to release

pending trial, establishing that “it shall not be the general rule that persons awaiting trial shall

be detained in custody”. The Human Rights Committee has clarified that: “Detention pending

trial must be based on an individualized determination that it is reasonable and necessary

taking into account all the circumstances, for such purposes as to prevent flight, interference

with evidence or the recurrence of crime.”14 Moreover, principles 38 and 39 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

confirm that, except in special cases, a criminal detainee is entitled to release pending trial.

50.

According to the source, Mr. Ismail was brought before a judge on 3 February 2021

and ordered to remain in pretrial detention, where he will stay until trial. The judge did not

provide any individualized reasoning to justify Mr. Ismail’s detention. Mr. Ismail has no

history of violence and is not a threat to society. His name is on the Exit Control List and he

does not pose a flight risk. Furthermore, there is no evidence that Mr. Ismail might destroy if

he is released. The source concludes that the pretrial detention of Mr. Ismail is unfounded.

51.

In addition, the source submits that Mr. Ismail’s right to the presumption of innocence

has been violated. Article 14 (1) of the Covenant guarantees the right to a “fair and public

hearing by a competent, independent and impartial tribunal”. One of the key tenets of a fair

hearing is the principle of the equality of arms, which requires that both parties have the same

12 Human Rights Committee, general comment No. 15 (1986), para. 9.

13 Human Rights Committee, general comment No. 35 (2014), para. 12.

14 Ibid., para. 38.

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procedural rights.15 Article 14 (2) of the Covenant guarantees that “everyone charged with a

criminal offence shall have the right to be presumed innocent until proved guilty”. This right

is also enshrined in article 11 (1) of the Universal Declaration of Human Rights. The Human

Rights Committee has emphasized to States that: “Deviating from fundamental principles of

fair trial, including the presumption of innocence, is prohibited at all times.”16

52.

It is argued that Mr. Ismail was called a supporter of terrorism without a fair trial. No

concrete evidence was shown to support the accusations against Mr. Ismail, other than his

usual daily activities. The authorities have violated article 11 (1) of the Universal Declaration

of Human Rights and articles 14 (1), (2) and (3) (d) of the Covenant.

53.

Lastly, the source notes that the authorities raided Mr. Ismail’s house. It recalls that

article 17 of the Covenant prohibits arbitrary or unlawful interference with a person’s privacy,

home or correspondence. An identical guarantee is provided in article 12 of the Universal

Declaration of Human Rights.

54.

On the morning of 4 February 2021, Mr. Ismail’s spouse visited the Counter Terrorism

Authority police station in Peshawar with clothes and medication for Mr. Ismail. She was

informed that Mr. Ismail was no longer in the custody of the police in the station in Peshawar

and was given no further information regarding his whereabouts. Later that day, members of

the Counter Terrorism Authority took Mr. Ismail, bound in chains, to his family home.

Officers searched the house and confiscated mobile telephones. The search was not carried

out in accordance with domestic law and no search warrant was produced.

Response from the Government

55.

On 19 April 2021, the Working Group transmitted the allegations from the source to

the Government under its regular communication procedure. The Working Group requested

the Government to provide detailed information by 17 June 2021 about the situation of Mr.

Ismail. The Working Group also requested the Government to clarify the legal provisions

justifying his continued detention, as well as the compatibility of his detention with the

State’s obligations under international human rights law, and in particular with regard to the

treaties ratified by Pakistan. Moreover, the Working Group called upon the Government to

ensure Mr. Ismail’s physical and mental integrity.

56.

The Working Group regrets that it did not receive a response from the Government to

this communication.17 The Government did not request an extension of the time limit for its

reply, as provided for in paragraph 16 of the Working Group’s methods of work.

Additional comments from the source

57.

The source reports that Mr. Ismail was released on bail on 15 April 2021, as his health

condition has deteriorated in prison. However, the charges against him remain.

Discussion

58.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

59.

The Working Group welcomes the release of Mr. Ismail on bail on 15 April 2021. In

accordance with paragraph 17 (a) of its methods of work, the Working Group reserves the

right to render an opinion on whether or not a deprivation of liberty was arbitrary,

notwithstanding the release of the person concerned. According to the source, the charges

brought against Mr. Ismail remain and he is at risk of being detained again following his

release on bail. In addition, Mr. Ismail is being prosecuted for serious allegations relating to

15 Human Rights Committee, general comment No. 32 (2007), para. 8.

16 Ibid., para. 6.

17 The Government has responded to previous communications from the Working Group and other

special procedure mandate holders on Mr. Ismail’s case. However, the Working Group’s methods of

work require a separate response to the urgent action and regular procedures (A/HRC/36/38, para.

23).

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terrorism and other offences, reportedly as a result of his work as a human rights defender.

In these circumstances, the Working Group considers it important to render an opinion.

60.

In determining whether Mr. Ismail’s deprivation of liberty is arbitrary, the Working

Group has regard to the principles established in its jurisprudence to deal with evidentiary

issues. If the source has presented a prima facie case for breach of the international law

constituting arbitrary detention, the burden of proof should be understood to rest upon the

Government if it wishes to refute the allegations.18 In the present case, the Government has

chosen not to challenge the prima facie credible allegations made by the source.

61.

In the present case, two proceedings have been initiated against Mr. Ismail:

(a)

The first case involves allegations of cybercrime for speaking out against

government institutions. Mr. Ismail was reportedly abducted outside the Peshawar High

Court on 24 October 2019 and was produced in court the following day. He was charged

under the Prevention of Electronic Crimes Act with hate speech and spreading false

information against government institutions. Mr. Ismail was detained for more than a month

until he was granted bail and released on 25 November 2019. The Federal Investigation

Agency appealed this decision, seeking to revoke the bail order. Hearings in relation to the

matter are ongoing.

(b)

The second case involves a First Information Report lodged on 6 July 2019

against Mr. Ismail, his spouse and their daughter in relation to financing terrorism, sedition

and terrorism charges. The case was initially dismissed on 2 July 2020 owing to a lack of

evidence submitted by the prosecution. However, the matter was reopened two months later

and further charges were brought against the defendants. On 2 February 2021, Mr. Ismail

was arrested in the Anti-Terrorism Court in Peshawar while attending a bail confirmation

hearing. According to the source, Mr. Ismail was detained at the Peshawar Central Jail until

his release on bail on 15 April 2021. The defendants have pleaded not guilty and the trial has

commenced.

62.

The Working Group will consider whether the detention of Mr. Ismail in relation to

both of these proceedings was arbitrary under the relevant categories provided for in its

methods of work.19

Category I

63.

In relation to the first proceedings, the source alleges that Mr. Ismail was forcibly

abducted on 24 October 2019 from outside the Peshawar High Court by unidentified men.

He was subsequently handed over to the Federal Investigation Agency cybercrime unit.

Following a statement by the United States Department of State seeking Mr. Ismail’s release,

he was produced in court on 25 October 2019. Mr. Ismail was then detained until his release

on bail on 25 November 2019. The Government did not submit a response to the Working

Group’s regular communication and has not sought to challenge these allegations.

64.

In the absence of any alternative explanation from the Government, it appears that the

unidentified men who reportedly abducted Mr. Ismail were acting on behalf of the

Government, given that Mr. Ismail was handed over to the Federal Investigation Agency

cybercrime unit. Mr. Ismail was therefore deprived of liberty against his will, with the

involvement of government officials, who appear to have refused to disclose his fate and

whereabouts during this period. 20 The Working Group considers that Mr. Ismail was

subjected to enforced disappearance in the period between his abduction on 24 October 2019

and his appearance in court on 25 October 2019. The Working Group refers the present case

to the Working Group on Enforced or Involuntary Disappearances.

65.

The Working Group recalls that enforced disappearances violate numerous

substantive and procedural provisions of the Covenant, including articles 9 and 14, and

18 A/HRC/19/57, para. 68.

19 A/HRC/36/38, para. 8.

20 A/HRC/16/48/Add.3 and Corr.1, para. 21. See also A/HRC/33/51/Add.7, paras. 22–38.

A/HRC/WGAD/2021/37

10

constitute a particularly aggravated form of arbitrary detention.21 In particular, the abduction

of Mr. Ismail on 24 October 2019 took place completely outside of established legal

processes and with no judicial oversight, in violation of the requirement under article 9 (1)

of the Covenant that no one shall be deprived of his or her liberty except on such grounds

and in accordance with such procedure as are established by law. Mr. Ismail’s abduction also

violated the requirement under article 9 (2) of the Covenant that anyone who is arrested shall

be informed, at the time of arrest, of the reasons for his or her arrest. By failing to follow

arrest procedures, such as presenting an arrest warrant22 and informing Mr. Ismail of the

reasons for his arrest,23 the authorities have failed to invoke a legal basis for Mr. Ismail’s

detention.

66.

In addition, while Mr. Ismail was brought before a court the day after his abduction,

it is unlikely that this represented a real opportunity to challenge the legal basis for his

detention, given that he had been disappeared prior to his appearance in court, with limited

opportunity to prepare or consult with legal counsel. The Working Group considers that Mr.

Ismail’s right to challenge the legality of his detention under article 9 (3) and (4) of the

Covenant, as well as his right to an effective remedy under article 8 of the Universal

Declaration of Human Rights and article 2 (3) of the Covenant, were violated.24 As a result,

the authorities did not establish a legal basis for Mr. Ismail’s detention in accordance with

the requirements of international human rights law.

67.

In relation to the second proceedings, the source alleges that on 2 February 2021, Mr.

Ismail was arrested in the Anti-Terrorism Court in Peshawar while attending a bail

confirmation hearing in the First Information Report lodged under the Anti-Terrorism Act

against him and his spouse. While his spouse’s bail was confirmed, Mr. Ismail was

handcuffed and taken away. According to the source, no reason for the arrest was given to

Mr. Ismail and the authorities did not show an arrest warrant. On 3 February 2021, Mr. Ismail

was brought before a judge and ordered to remain in pretrial detention. He was subsequently

released on bail on 15 April 2021. The Government has not responded to these allegations.

68.

While the source alleges that no arrest warrant was presented and no reasons were

given for Mr. Ismail’s arrest on 2 February 2021, it is not clear whether these procedures

were required in this situation. Unlike Mr. Ismail’s abduction in October 2019, on this

occasion he was present in court and was denied bail in proceedings that had already been

initiated against him and other defendants. It appears that the authorities were taking him into

custody pursuant to the court order denying bail, rather than arresting him under a new First

Information Report. In the absence of specific information that the arrest on 2 February 2021

related to different proceedings against Mr. Ismail which required an arrest warrant and

reasons to be given, the Working Group is not in a position to determine whether Mr. Ismail’s

rights were violated.

69.

The source further alleges that during his remand, Mr. Ismail’s family homes in

Islamabad and Swabi were raided. According to the source, a search was conducted on 4

February 2021 and mobile telephones were confiscated without a search warrant. In its

jurisprudence, the Working Group has established that detention is arbitrary when evidence

obtained without a search warrant is used in judicial proceedings.25 In the present case, it is

not clear whether the seized evidence will be used against Mr. Ismail during his trial.

However, the Working Group considers that the source has established a credible case –

which was not rebutted by the Government – that a search was conducted without a search

21 Human Rights Committee, general comment No. 35 (2014), para. 17; opinions No. 41/2020, para. 61,

and No. 11/2020, para. 41; CCPR/C/PAK/CO/1, paras. 19–20; and CAT/C/PAK/CO/1, paras. 24–25.

22 In order for deprivation of liberty to have a legal basis, it is not sufficient for there to be a law

authorizing the arrest. The authorities must invoke that legal basis and apply it to the circumstances of

the case through an arrest warrant. See opinions No. 4/2021, No. 59/2019, No. 46/2019, No. 33/2019

and No. 9/2019.

23 An arrest is arbitrary when carried out without informing the arrested person of the reasons for the

arrest. See opinions No. 4/2021, para. 83, No. 46/2020, para. 40, No. 59/2019, para. 46, and

No. 46/2019, para. 51.

24 CAT/C/PAK/CO/1, paras. 16–17 (noting the importance of reviewing the legality of detention).

25 Opinion No. 83/2019, para. 51. See also opinions No. 33/2019, No. 31/2019, No. 83/2018, No.

78/2018 and No. 36/2018.

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11

warrant. This suggests that the authorities did not follow the necessary investigative

procedures to ensure that Mr. Ismail’s detention had a legal basis.

70.

Furthermore, the source argues that Mr. Ismail was not afforded his right to be

released pending trial, in violation of article 9 (3) of the Covenant. According to the source,

when Mr. Ismail was ordered to remain in pretrial detention on 3 February 2021, the judge

did not provide any individualized reasoning to justify Mr. Ismail’s detention. Mr. Ismail has

no history of violence and is not a threat to society. His name is on the Exit Control List and

he does not pose a flight risk. There is no evidence that he might destroy if he is released.

The source also refers to Mr. Ismail’s serious health conditions and the risks that he faces

while in detention.

71.

According to article 9 (3) of the Covenant, pretrial detention must be the exception

and not the rule, and should be ordered for as short a time as possible.26 Detention pending

trial must be based on an individualized determination that it is reasonable and necessary, for

such purposes as to prevent flight, interference with evidence or the recurrence of crime.27

Courts must examine whether alternatives to pretrial detention, such as bail, would render

detention unnecessary.28

72.

The Working Group notes that Mr. Ismail was released on bail on 15 April 2021.

However, he was detained for over two months prior to his release, that is, from 2 February

to 15 April 2021, and the source’s original submissions relating to the absence of an

individualized review of Mr. Ismail’s case still apply to that period of detention. The

Government provided no information to rebut the source’s allegation that Mr. Ismail did not

initially receive an individualized judicial review of the need for his detention pending trial.

As a result, the Working Group finds that Mr. Ismail’s pretrial detention for over two months

was not properly constituted and thus had no legal basis.29 In reaching this conclusion, the

Working Group emphasizes that it did not review whether Mr. Ismail posed any of the risks

referred to by the source, such as a flight risk, as that is a matter for the national courts to

determine. 30 Rather, the Working Group considered whether an individualized judicial

review of Mr. Ismail’s case had taken place, and found no suggestion that such a review was

initially conducted following his arrest on 2 February 2021.

73.

For these reasons, Mr. Ismail’s detention from the time of his abduction on 24 October

2019 until his release on bail on 25 November 2019, and from the time of his arrest on 2

February 2021 until his release on bail on 15 April 2021, was arbitrary under category I.

Category II

74.

The source alleges that Mr. Ismail was deprived of his liberty as a result of the exercise

of his rights to freedom of movement, freedom of opinion and expression, and peaceful

assembly under articles 13, 19 and 20 of the Universal Declaration of Human Rights and

articles 12, 19 and 21 of the Covenant. The Government did not respond to these submissions.

75.

The Working Group considers that there is insufficient basis to conclude that Mr.

Ismail’s detention was related to the exercise of his right to freedom of movement or to

peaceful assembly. While Mr. Ismail has been prevented from leaving Pakistan because of

his placement on the Exit Control List, he does not appear to have been detained as a result

of exercising his right to freedom of movement.31 Indeed, Mr. Ismail is not a flight risk

because his name is on the Exit Control List and he cannot exercise his right to leave Pakistan.

His bank accounts have also been frozen. There would appear to be no point in detaining him

to prevent him from exercising his freedom of movement to leave the country, as he is already

26 A/HRC/19/57, paras. 48–58; and opinions No. 64/2020, para. 58, No. 62/2019, paras. 27–29, and

No. 5/2019, para. 26.

27 Human Rights Committee, general comment No. 35 (2014), para. 38; and opinion No. 45/2016, para.

51.

28 Human Rights Committee, general comment No. 35 (2014), para. 38.

29 Opinions No. 36/2020, para. 51, and No. 68/2019, para. 96.

30 Opinions No. 46/2020, para. 62, No. 1/2020, para. 51, No. 64/2019, para. 89, and No. 49/2019, para.

58.

31 Compare opinions No. 33/2016 (individual detained for illegally returning to his country) and

No. 36/2007 (individual detained for the crime of illegally crossing a State border).

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12

incapable of doing so. Similarly, the source has not pointed to the participation of Mr. Ismail

in any specific peaceful assemblies that resulted in his detention.

76.

The source further alleges that Mr. Ismail was detained as a result of his exercise of

the right to freedom of opinion and expression through his work as a human rights activist.

According to the source, Mr. Ismail’s detention was aimed at ending his advocacy activities.

Mr. Ismail has a long-standing history at the forefront of Pakistani civil society, including as

the Secretary of the Pakistan NGOs Forum and as the founder of several non-governmental

organizations. His work includes advocacy on peacebuilding, countering violent extremism,

democracy, youth empowerment, rural development, freedom of speech and political

empowerment of communities.

77.

Article 19 (2) of the Covenant provides that everyone has the right to freedom of

expression, which includes the freedom to seek, receive and impart information and ideas of

all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or

through any other media of his or her choice. This right includes political discourse,

commentary on public affairs and discussion of human rights through any media, such as

electronic and Internet-based modes of expression.32 It protects the holding and expression

of opinions, including those which are critical of, or not in line with, government policy.33

78.

The Working Group considers that Mr. Ismail’s conduct falls within the right to

freedom of opinion and expression protected under article 19 of the Universal Declaration of

Human Rights and article 19 of the Covenant and that he was detained for exercising this

right through his work.34 Moreover, Mr. Ismail’s work involved advocacy on key areas of

government policy and human rights, and as such, concerned matters of public interest. In

the view of the Working Group, Mr. Ismail was also detained for exercising his right to take

part in the conduct of public affairs under article 21 (1) of the Universal Declaration of

Human Rights and article 25 (a) of the Covenant.35

79.

There is nothing to suggest – and the Government has not argued – that the permissible

restrictions on the above rights set out in articles 19 (3) and 25 of the Covenant would apply

in the present case. The Government did not explain how prosecuting Mr. Ismail is necessary

to protect a legitimate interest under these provisions, nor how bringing serious charges under

the Penal Code, the Anti-Terrorism Act and other legislation was a proportionate response to

his activities. Importantly, there is no evidence to suggest that Mr. Ismail’s activities could

reasonably be considered to pose a threat to national security, public order, public health or

morals, or the rights or reputations of others. The Human Rights Council has called upon all

States to refrain from imposing restrictions that are not consistent with article 19 (3) of the

Covenant.36

80.

As the Human Rights Committee has stated, extreme care must be taken by States to

ensure that provisions relating to national security, whether described as official secrets or

sedition laws or otherwise, are crafted and applied in a manner that conforms to the strict

requirements of article 19 (3) of the Covenant.37 It is not compatible with this provision to

invoke such laws to suppress or withhold from the public information of legitimate public

interest that does not harm national security or to prosecute human rights defenders or others

for having disseminated such information.38

81.

According to the Declaration on the Right and Responsibility of Individuals, Groups

and Organs of Society to Promote and Protect Universally Recognized Human Rights and

Fundamental Freedoms, everyone has the right, individually and in association with others,

to promote and to strive for the protection and realization of human rights and to draw public

32 Human Rights Committee, general comment No. 34 (2011), paras. 11–12.

33 Opinions No. 8/2019, para. 55, and No. 79/2017, para. 55.

34 CCPR/C/PAK/CO/1, paras. 37–38 (discussing the lack of a safe environment for human rights

defenders and others who exercise the freedom of expression), and CAT/C/PAK/CO/1, paras. 22–23.

35 Human Rights Committee, general comment No. 25 (1996), para. 8 (noting that citizens take part in

the conduct of public affairs by exerting influence through public debate). See also opinions No.

16/2020 and No. 15/2020.

36 Human Rights Council resolution 12/16, para. 5 (p).

37 Human Rights Committee, general comment No. 34 (2011), para. 30.

38 Ibid.

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13

attention to the observance of human rights.39 The source has demonstrated that Mr. Ismail

was detained for the exercise of his rights under this Declaration. The Working Group has

determined that detaining individuals on the basis of their activities as human rights defenders

violates their right to equality before the law and equal protection of the law under article 7

of the Universal Declaration of Human Rights and article 26 of the Covenant.40

82.

The Working Group finds that Mr. Ismail was detained in relation to both proceedings

against him as a result of the peaceful exercise of his right to freedom of opinion and

expression and to participate in the conduct of public affairs, and in violation of article 7 of

the Universal Declaration of Human Rights and article 26 of the Covenant. His detention was

arbitrary under category II. The Working Group refers the present case to the Special

Rapporteur on the promotion and protection of the right to freedom of opinion and

expression.

83.

Lastly, the Working Group takes note of the source’s submission that the offences of

which Mr. Ismail is accused under the Penal Code and the Anti-Terrorism Act are vague and

overly broad. The principle of legality requires that laws be formulated with sufficient

precision so that the individual can acquire access to and understand the law and regulate his

or her conduct accordingly.41 The Working Group takes this opportunity to reiterate that laws

may be so lacking in detail concerning the conduct that may be penalized that it is impossible

to invoke a legal basis justifying the deprivation of liberty.42 The Working Group refers the

present case to the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism.

Category III

84.

Given its finding that Mr. Ismail’s detention was arbitrary under category II, the

Working Group emphasizes that no trial should take place. However, while Mr. Ismail has

been released on bail, the hearings in his first proceedings are ongoing and the trial against

him and the two co-defendants in the second proceedings has commenced.

85.

The source alleges that Mr. Ismail has been denied his right to consult with his lawyer

confidentially. While the Working Group notes that the right to confidential communication

with legal counsel is well established under international human rights law,43 the source has

not provided any details of the circumstances in which the authorities denied Mr. Ismail this

right, nor any information about the impact on the proceedings against him. In these

circumstances, the Working Group is not in a position to make any findings on this issue.

86.

In addition, the source submits that Mr. Ismail’s right to the presumption of innocence

has been violated. According to the source, Mr. Ismail was called a supporter of terrorism

without having had the right to a fair trial. No concrete evidence was shown to support the

accusations against him, other than his usual daily activities. While the Working Group

determines whether proceedings meet international fair trial standards, it does not act as a

national court or appellate body and does not assess the sufficiency of the evidence presented

against a defendant.44 As a result, the Working Group is not in a position to determine

whether there was any concrete evidence presented in this case, and finds no other

information to support the alleged violation of Mr. Ismail’s right to the presumption of

innocence.

39 General Assembly resolution 53/144, annex, arts. 1 and 6 (c). See also General Assembly resolution

74/146, para. 12.

40 See, e.g., opinions No. 16/2020, No. 15/2020, No. 45/2019, No. 44/2019, No. 9/2019, No. 46/2018,

No. 45/2018 and No. 36/2018.

41 Opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59.

42 CCPR/C/PAK/CO/1, paras. 21–22 (concerning the broad nature of the Anti-Terrorism Act). See also

A/70/371, para. 46 (b) (urging States to ensure that counter-terrorism laws are sufficiently precise to

ensure that they cannot be used to target civil society on unjustified grounds).

43 Nelson Mandela Rules, rule 61 (1); Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment, principle 18 (3); A/HRC/30/37, principle 9 and guideline 8.

44 Opinions No. 64/2019, para. 89, No. 75/2018, para. 73, No. 53/2018, para. 79, and No. 57/2016, para.

115.

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14

87.

Lastly, although the source did not make any submissions relating to the duration of

the proceedings against Mr. Ismail, the Working Group considers that Mr. Ismail has been

denied his right to trial without undue delay in both proceedings. In the first proceedings, Mr.

Ismail was abducted on 24 October 2019 and the hearings relating to his bail are reportedly

ongoing, nearly two years later. In the second proceedings, the First Information Report dates

back to 6 July 2019, more than two years ago. The case was initially dismissed on 2 July

2020 but was subsequently reopened, and the trial of Mr. Ismail and the other two co-

defendants is ongoing with additional charges having been brought by the authorities. Mr.

Ismail is currently released on bail in relation to both matters. The Government has not

provided any information that would address this issue.

88.

The reasonableness of any delay in bringing a case to trial must be assessed in the

circumstances of each case, taking into account the complexity of the case, the conduct of

the accused, and the manner in which the matter was dealt with by the authorities.45 This

guarantee relates not only to the time between the formal charging of the accused and the

time by which a trial should commence, but also the time until the final judgment on appeal.

All stages, whether in first instance or on appeal, must take place without undue delay.46

89.

The Working Group has taken into account the fact that Mr. Ismail has not been

detained in relation to the first proceedings since November 2019. He was not detained in

relation to the second proceedings in the period between the initiation of the case in July 2019

and his arrest in February 2021, and he was released on bail on 15 April 2021. However, the

Working Group considers that the delay in finalizing both matters is still unacceptably long,

in violation of article 14 (3) (c) of the Covenant. Given the above finding that Mr. Ismail’s

detention was arbitrary under category II, he should never have been detained for the peaceful

exercise of his rights under international human rights law, and any delay in trying his case

would be unreasonable.47

90.

The Working Group concludes that this violation of the right to a fair trial through

undue delay in concluding the proceedings against Mr. Ismail is of such gravity as to give

his detention an arbitrary character under category III.

Category V

91.

While the source did not make any submissions under category V, the Working Group

has decided to analyse Mr. Ismail’s detention under this category of its methods of work.

92.

The Working Group considers that Mr. Ismail was targeted because of his peaceful

activities in support of human rights. As noted earlier, he has a long-standing record as a

human rights activist and defender, having established several non-governmental

organizations and served in leadership roles of human rights bodies such as the Pakistan

NGOs Forum, the Pakistan National AIDS Consortium and the Joint Action Committee.

Notably, the authorities appear to have targeted Mr. Ismail and his family, having reopened

the second proceedings against him after it was initially dismissed. The authorities also took

Mr. Ismail, bound in chains, to his home village in February 2021, which would appear to be

excessive and disproportionate to any risk posed by Mr. Ismail. The likelihood of a well-

known 66-year-old human rights defender with chronic health conditions whose name is on

the Exit Control List attempting to escape or commit any crimes was presumably minimal.

93.

Moreover, in the discussion above concerning category II, the Working Group

established that Mr. Ismail’s detention resulted from the peaceful exercise of his rights under

international law. When detention results from the active exercise of civil and political rights,

there is a strong presumption that the detention also constitutes a violation of international

law on the grounds of discrimination based on political or other views.48 The Government

has submitted no information to rebut this presumption. In particular, the Government has

not provided any information suggesting that Mr. Ismail was involved in the alleged offences

45 Human Rights Committee, general comments No. 35 (2014), para. 37, and No. 32 (2007), para. 35.

46 Human Rights Committee, general comment No. 32 (2007), para. 35.

47 See opinions No. 10/2021, No. 16/2020 and No. 15/2020.

48 Opinions No. 4/2021, para. 108, No. 59/2019, para. 79, No. 13/2018, para. 34, and No. 88/2017, para.

43.

A/HRC/WGAD/2021/37

15

or that he has a prior criminal record involving violence and terrorism. In these

circumstances, the Working Group concludes that Mr. Ismail was detained because of his

status as a human rights defender49 and for his political or other opinions expressed through

his advocacy work. The Working Group refers the present case to the Special Rapporteur on

the situation of human rights defenders.

94.

Furthermore, the source has submitted a credible prima facie case, which was not

rebutted by the Government, that Mr. Ismail was detained because of the human rights

advocacy of his daughter, Gulalai Ismail. This included her participation in a protest in May

2019 condemning sexual violence, which resulted in three cases being filed against her,

numerous raids on her home, and the alleged surveillance and torture of her relatives and

friends. According to the source, Ms. Ismail fled Pakistan to live in exile abroad. It appears

that when the authorities failed to apprehend Ms. Ismail, they pursued proceedings against

Mr. Ismail and his spouse.

95.

Accordingly, the Working Group considers that Mr. Ismail’s detention resulted from

discrimination based on birth and family ties, namely, his association with his daughter. This

appears to be a case of guilt by association.50 The Working Group reaffirms that no one

should be deprived of their liberty for the crimes, real or not, committed by a family member

by birth or marriage, in a free, democratic society.51

96.

The Working Group finds that Mr. Ismail was detained on discriminatory grounds,

that is, on the basis of his status as a human rights defender, his political or other opinion,

and his birth and family ties, contrary to articles 2 and 7 of the Universal Declaration of

Human Rights and articles 2 (1) and 26 of the Covenant. His detention in both proceedings

was arbitrary according to category V.

Concluding remarks

97.

The Working Group expresses its serious concern about the reported conditions in

which Mr. Ismail was previously detained and his chronic health conditions. According to

the source, Mr. Ismail was held in poor conditions in Peshawar Central Jail, forced to sleep

on the floor, and was not allowed to receive medicines, food, clothes or toiletries. He was

given substandard food despite his medical conditions, including a neurological disorder,

dislocated discs in his back, kidney pain and high creatinine levels. Mr. Ismail was allegedly

denied medical care for his hypertension and other chronic conditions. He contracted

COVID-19 when he was forced to stay in an overcrowded yard in the prison.

98.

The Working Group urges the Government to ensure that the conditions in all places

of deprivation of liberty throughout Pakistan meet international standards.52 This includes the

Nelson Mandela Rules, particularly rules 12 to 27 relating to living conditions and health

care. In accordance with article 10 (1) of the Covenant, the Government is obliged to treat all

persons deprived of their liberty with humanity and with respect for the inherent dignity of

the human person. Given that Mr. Ismail was arbitrarily detained despite his poor health, the

Working Group urges the Government to unconditionally release him and ensure that he

receives the necessary medical care.

99.

The Working Group notes with concern the charges reportedly brought against Mr.

Ismail’s spouse, as well as actions taken against Mr. Ismail’s daughter for her advocacy in

support of the Pashtun community. Those actions reportedly include several serious charges,

raids on her home, surveillance and torture of her relatives and friends, attempts to block her

access to social media, and inclusion on an alleged State kill list. While the Working Group

was not asked to consider the situation of Mr. Ismail’s family members, and they do not

appear to have been detained, the alleged violation of their human rights should be subject to

further investigation by the authorities.

49 See opinion No. 45/2016; and A/HRC/36/37, para. 49 (identifying human rights defenders as a

protected group that is entitled to equal protection of the law under article 26 of the Covenant).

50 Opinions No. 65/2019, para. 85, No. 83/2017, paras. 87–88, No. 33/2017, para. 98, and No. 1/2017,

para. 59.

51 Opinions No. 2/2021, para. 82, and No. 65/2019, para. 83.

52 CCPR/C/PAK/CO/1, paras. 27–28, and CAT/C/PAK/CO/1, paras. 28–29.

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16

100.

Lastly, the Working Group would welcome the opportunity to undertake a country

visit to Pakistan to work constructively with the authorities in addressing its concerns in

relation to the arbitrary deprivation of liberty. The Working Group made a request to the

Government on 11 June 2018 to conduct a country visit. As an elected member of the Human

Rights Council from 2021 to 2023, Pakistan is well placed to demonstrate its commitment to

human rights by inviting the Working Group to undertake a visit.53

Disposition

101.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Muhammad Ismail, being in contravention of articles 2,

7, 8, 9, 10, 11 (1), 19 and 21 (1) of the Universal Declaration of Human Rights and

articles 2 (1) and (3), 9, 14, 19, 25 (a) and 26 of the International Covenant on Civil

and Political Rights, is arbitrary and falls within categories I, II, III and V.

102.

The Working Group requests the Government of Pakistan to take the steps necessary

to remedy the situation of Mr. Ismail without delay and bring it into conformity with the

relevant international norms, including those set out in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

103.

The Working Group considers that, taking into account all the circumstances of the

case, including the risk to Mr. Ismail’s health and well-being, the appropriate remedy would

be to release Mr. Ismail unconditionally and accord him an enforceable right to compensation

and other reparations, in accordance with international law.54

104.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary detention of Mr. Ismail and to

take appropriate measures against those responsible for the violation of his rights.

105.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

this case to the Working Group on Enforced or Involuntary Disappearances, the Special

Rapporteur on the promotion and protection of the right to freedom of opinion and

expression, the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism, and the Special Rapporteur on the

situation of human rights defenders, for appropriate action.

106.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

107.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Ismail has been released unconditionally and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Ismail;

(c)

Whether an investigation has been conducted into the violation of Mr. Ismail’s

rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Pakistan with its international obligations in line with

the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

108.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

53 The Government made a voluntary commitment prior to its election to the Human Rights Council to

“continue to strengthen cooperation with the special procedures, including by arranging visits of the

High Commissioner for Human Rights and the special rapporteurs” (A/75/119, para. 30 (p)).

54 See the Working Group’s deliberation No. 10 (A/HRC/45/16, annex I).

A/HRC/WGAD/2021/37

17

whether further technical assistance is required, for example through a visit by the Working

Group.

109.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

110.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.55

[Adopted on 9 September 2021]

55 Human Rights Council resolution 42/22, paras. 3 and 7.