The International League Against Arbitrary Detention urges the Government of Pakistan to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 65/2023 concerning Shahzad Masih, starting for the Pakistani Government to immediately and unconditionally release him and to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Shahzad Masih (Pakistan) : Opinion 65/2023.
ARRESTED FOR HAVING TALKED ABOUT MUSLIM PROPHETS
Shahzad Masih is a Christian Pakistani born on 13 October 2000, and was a janitor working in a hospital.
On 13 july 2017, as he was with Muslim co-workers discussing about Christian and Muslim prophets, Mr. Masih explained that one of his family’s friends often used derogatory words against Muslim prophets. Even though he clarified that it was another person’s words, his co-workers got angry. Mr. Masih was later called to a shop where members of an Islamic organisation asked him to repeat what he said, which he did out of fear. The group decided to take him to an Islamic religious school, where the police came and arrested him immediately.
On 14 July 2017, Mr. Masih was charged with blasphemy under section 295C of the Penal Code. The following day, he was presented before a judge who extended his detention. Following a delayed procedure, Mr. Masih was eventually tried as an adult and sentenced to death by hanging on 22 November 2022.
Though given the opportunity to answer those allegations, the Pakistani Government chose not to.
A MINOR TRIED AS AN ADULT AND SUBJECTED TO ENFORCED DISAPPEARANCE
Contrary to the police record which stated that Mr. Masih was arrested on 17 August 2017, it seems Mr. Masih was truly arrested on 13 July 2017, and first presented before a judge on 18 August 2017. As such, the Working Group found that Mr. Masih's right to be brought promptly before a judge, enshrined in article 9 (3) of the Covenant, was violated. Besides, the Working Group stressed that as a minor, Mr. Masih should have been presented within 24 hours following his arrest, according to articles 37 (b) and 40 (2) (b) (ii) of the Convention on the Rights of the Child.
From his arrest in 2017 until his sentencing in 2022, Mr. Masih was detained in pre-trial detention, without an individualised assessment justifying it. Considering this in light of the fact that pre-trial detention must be exceptional, the Working Group established his pre-trial detention lacked a legal basis, in violation of article 9 (3) of the Covenant. Besides, considering he was a minor at the time of his arrest, the Working Group also established his right to be brought to trial in especially speedy fashion, as guaranteed by article 10 (2) (b) of the Covenant, was violated. All in all, the Working Group thus considered Mr. Masih was deprived of his right to bring proceedings before a court, in violation of article 9 (4) of the Covenant and articles 3, 8 and 9 of the Universal Declaration of Human Rights.
Eventually, following his arrest, his whereabouts were kept secret from his family for days. The Working Group thus found that during this period, Mr. Masih was subjected to enforced disappearance, and as such was unable to exercise his right to challenge the legality of his detention, in violation of article 9(3) and (4) of the Covenant.
Therefore, the Working Group found that Mr. Masih's arrest and detention lacked a legal basis, thus being arbitrary under category I.
DETAINED FOR EXERCISING HIS RIGHT TO FREEDOM OF EXPRESSION
In the present case, Mr. Masih was deprived of his liberty for mentioning someone else’s words about Muslim prophets. The Working Group thus found Mr. Masih was deprived of his right to freedom of expression, in violation of article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights.
Besides, the Working Group noted the concern emitted by the Human Rights Committee concerning the blasphemy laws, notably sections 295 and 298 of the Pakistan Penal Code. Indeed, not only these laws have a discriminatory effect, but judges working on cases involving violations of these laws are frequently harassed and subjected to intimidation and threats. As such, the Working Group called upon Pakistan to repeal all blasphemy laws or amend them in compliance with the strict requirements of the Covenant.
Eventually, the Working Group also recalled that Mr. Masih has a right to freedom of conscience and religion, as guaranteed by article 18 of the Covenant. However, no violation of this right was found.
Henceforth, the Working Group found Mr. Masih's detention was arbitrary under category II.
VIOLATIONS OF HIS RIGHT TO A FAIR TRIAL
The Working Group considered that as the deprivation of liberty in the present case falls under category II, no trial should have been held.
First, at the beginning of the trial, Mr. Masih’s legal counsel petitioned the Court requesting Mr. Masih to be tried as a juvenile because he was 16 years old when he was arrested and charged. The Court denied this request and tried him as an adult instead. As such, the Working Group found that Mr. Masih’s right to have the legal procedure against him to consider his age - and so his juvenile status - was violated, under article 14 (4) of the ICCPR. Besides, the Working Group also reminded the Government of its obligation under articles 37 and 40 of the Convention on the Rights of the Child to try minors adequately to their age.
The legal proceedings against Mr. Masih were delayed because he was not given a bail hearing and his detention was not reviewed by a judicial authority. As such, the Working Group considered that his right to be tried within a reasonable time and without undue delay, guaranteed by article 14 (3) (c) of the Covenant, was violated.
Additionally, Mr. Masih did not have access to a lawyer from the outset of his detention and at other key stages of the proceedings, including during his interrogation. Thus, the Working Group found that his right to prompt recourse to effective legal counsel had been denied, in violation of article 10 of the UDHR and article 14 (1), (3) (b) and (d) of the ICCPR. Besides, the Working Group also found this situation seriously affected his ability to prepare a defence, in violation of his right to do so under articles 14 (3) (b) and (d) of the ICCPR. The Working Group also recalled that Mr. Masih had a right to legal assistance under the Convention on the Rights of the Child, and emphasised that in cases involving capital punishment, such as this one, this assistance was axiomatic. Lastly, considering Mr. Masih's age at the time of his arrest, the Working Group found that the prohibition to decide on a death sentence for crimes committed by minors, under article 6 (5) of the ICCPR, was violated.
Eventually, different circumstances impaired the quality of the legal proceedings of Mr. Masih. Notably, different courts disregarded the petition and appeal in which his counsel sought dismissal of the charges because no offence could be established, and he was convicted without any evidence. According to the source, this is due to the fact that judges were intimidated by members of a Muslim organisation present during the hearings, and which stated on their social media that they would kill Mr. Masih themselves if the judge did not convict him. On this matter, the Working Group shared the concern of various Special Rapporteur as of the influence of such organisations during legal proceedings. Moreover, the Working Group also noted that under section 295 C of the Penal Code, blasphemy cases such as this one had to be tried by Muslims judges, which was considered as undermining the credibility of the proceedings. In light of the above, the Working Group thus found that Mr. Masih’s right in full equality to a fair and public hearing by an independent and impartial tribunal, guaranteed by article 10 of the Universal Declaration of Human Rights and 14 (1) and (2) of the Covenant, had been violated.
Therefore, the Working Group concluded that the breaches of Mr. Masih’s fair trial and due process rights were of such gravity as to make his detention fall under category III.
A POTENTIAL PATTERN OF PERSECUTION BASED ON RELIGIOUS BELIEFS
The Working Group recalled that it has repeatedly stated that, 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.
In the present case, Mr. Masih was arrested on the basis of comments about Muslim prophets made by an acquaintance and that he repeated. The Working Group recalled his previous findings, as well as the ones of several Special Rapporteurs, on the persecution of religious minorities in Pakistan. Notably, the use of anti-blasphemy laws to target Christians. Furthermore, the Working Group also recalled the numerous procedural irregularities that have permeated Mr. Masih’s case, among which the role played by extremist Islamic organisations within the proceedings.
Considering the above, the Working Group found that Mr. Masih was deprived of his liberty on discriminatory grounds, namely based on his religious faith, in violation of articles 2 and 7 of the Universal Declaration of Human Rights and article 26 of the Covenant.
As such, the Working concluded that Mr. Masih's detention was arbitrary under category V.
CONCLUSION OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the foregoing, the Working Group considered that the deprivation of liberty of Shahzad Masih was arbitrary and fell under categories I, II, III and V, as it contravened articles 2, 3, 7, 8, 9, 10 and 19 of the Universal Declaration of Human Rights and articles 2, 9, 14, 19 and 26 of the International Covenant on Civil and Political Rights.
The Working Group requested the Government of Pakistan to take the steps necessary to remedy the situation of Mr. Masih without delay and bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Masih immediately and to accord him an enforceable right to compensation and other reparations, in accordance with international law.
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