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
A/HRC/WGAD/2021/37
2
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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4
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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9
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.
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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.