One of the most important aspects of the Pakistani Constitution, fundamental rights serve as the cornerstone of Pakistani democracy. These rights are essential for protecting the individual from the capricious actions of the state and for promoting justice, equality, and fraternity. This blog explores the key elements, importance, reach, and objections related to these fundamental rights under the Pakistani Constitution.
Concerning fundamental rights
The term “fundamental rights” refers to a collection of fundamental freedoms and rights that each and every person of a nation is entitled to under its constitution. By safeguarding fundamental human rights and liberties and shielding citizens against capricious state actions, these rights form the cornerstone of individual freedom. They are essential to maintaining equality, justice, and democracy in a country. In short, they aim to establish ‘a government of laws and not of men’.
The Constitution, which is the fundamental law of the state, guarantees and protects the fundamental rights, hence their name. These rights are seen as fundamental since they are necessary for people’s overall growth, dignity, and well-being. A set of rights known as fundamental rights are those that are widely protected from infringement. These rights have been established via due process of law or are specifically mentioned in a constitution.
CIVIL LIBERTIES CONFUSED WITH FUNDAMENTAL RIGHTS
The two expressions “fundamental rights” and “ Civil Liberties” have at times been taken as synonyms although “fundamental rights” more comprehensive then “civil liberties” which is concern with the rights of liberty, life and property. Blackstone defined civil liberty to be nothing other than natural liberty. It also involve the existence of an organized society maintaining public order .
CONSTITUTIONAL HISTORY OF PAKISTAN AND FUNDAMENTAL RIGHTS
It was decided by the committee on fundamental rights to appoint two separate sub- committees to deal with
- Fundamental rights
- Minorities
Report of that committee was included in the constitution of 1956 as “Fundamental rights”.
1956 CONSTITUTION
Special emphasis given to inclusion of fundamental rights in Constitution of Pakistan by first constituent assembly.
1962 CONSTITUTION
Fundamental Rights omitted in 1962 constitution. Backlash from public because it was repugnant to basic principles of constitution-making for a civilized society. Ultimately, amendment was made and a chapter on the fundamental rights was added.
1973 CONSTITUTION
Fundamental rights, civil liberties were given recognition, protection and enforcement in this constitution. They were enforceable by giving power to Supreme Court and High Court to issue orders, writs and directives. It is mentioned in Article 184/3 and 199.
ENCROACHMENT OF CIVIL LIBERTIES AND HUMAN RIGHTS
Fundamental rights were not fully given. When on 7 Oct, 1958 constitution was abrogated.
Fundamental rights again suspended on proclamation of emergency on 6 Sept 1965 due to Indo-Pak war.
Fundamental rights also remained suspended during martial law of Zia in July 1977.
On may 28,1988, emergency was proclaimed and fundamental rights were suspended.
A DETAIL STUDY OF FUNDAMENTAL RIGHTS IN 1973 CONSTITUTION
In Pakistan, fundamental rights have been enshrined in Chapter 2 and article 8-28 of the Constitution of Pakistan, 1973.
FUNDAMENTAL RIGHTS OF CITIZEN IN PAKISTAN
In the opinion of Justice A.R Cornelius, in State vs Dosso, fundamental rights are more important than constitution itself.
Law inconsistent with or in derogation with fundamental right to be void (Article 8 )
Security of person ( Article 9)
Safeguard to arrest and detention ( Article 10)
Right to fair trial ( Article 10 A)
Forced labor , slavery prohibited ( Article 11 )
Protection against retrospective punishment ( Article 12 )
Protection against double punishment and self incrimination ( Article 13 )
Inviolability of dignity of man ( Article 14)
Freedom of movement ( Article 15)
Freedom of assembly ( Article 16 )
Freedom of association ( Article 17)
Freedom of trade, business or profession ( Article 18 )
Freedom of speech ( Article 19 )
Right to information ( Article 19 A)
Freedom to profess religion and to manage religious institution ( Article 20 )
Safeguard against taxation for purpose of any particular religion ( Article 21 )
Safeguard as to educational institution in respect of religion etc ( Article 22)
Provisions as to property (Article 23 )
Protection of property rights ( Article 24 )
Equality of citizen ( Article 25 )
Right to education ( Article 25 A)
Non discrimination in respect to access to public places (Article 26)
Safeguard against determination in services ( Article 27)
Preservation of language, spirit and culture ( Article 28 )
FUNDAMENTAL RIGHTS AND TRANSGENDER
Transgender are most neglected segments of society
In may 2018, Parliament of Pakistan passed “ The Transgender Persons Act 2018” Act was a ray of hope as Section 3 of the Act gives them opportunity to select their gender and get registered with NADRA. Chapter 3 of Act prohibits eight acts of discrimination against transgender community. Moreover, Act now provides definite share for transgender in inheritance. Article 25A of constitution ensures right of education for all and Article 14 ensures that dignity of everyone must be protected.
FUNDAMENTAL RIGHTS AND MINORITIES
Minority rights are now a crucial component of civil rights, which are represented in the fundamental rights that all citizens of the nation are entitled to. Article 36 of the Constitution guarantees protection to minorities. Furthermore, the constitution’s articles 25 and 26—which declare that all citizens are equal and that no citizen is subject to discrimination—can also be connected to minorities. Islam has acknowledged everyone’s rights, regardless of their faith
Remedies for fundamental rights
JUDICIAL REVIEW :
The supreme court possesses power of judicial review. Under article 8 of constitution, the SC as apex court has the power to declare any law invalid.
PUBLIC INTEREST LITIGATION UNDER ARTICLE 184 (3) :
The supreme court can entertain cases related to the interest of public and socially disadvantaged people under Article 184(3) of constitution of Pakistan. “It must be matter in which the public at large or at least a substantial section of the population is interested” (PLD 2011 KAR 177)
WRIT PETITION UNDER ARTICLE 199 OF CONSTITUTION :
Under article 199, High court may issue any of the following 5 writs:
CERTIORARI :An order by a higher court directing a lower court to send the record in given case for review.
HABEAS CORPUS : A demand to present a person (produce a body) before the court .
MANDAMUS :An order to perform an action .
PROHBITION : A direction to stop something or stop performing an action .
QUO WARRANTO : A requirement for a body to show by what authority it has exercised a certain power.
Author
Muhammad Muneeb Ur Rehman
Member Pakistan Youth Parliament
