The Constitution of Pakistan and Fundamental Rights

 

 
The Constitution of Pakistan and Fundamental Rights
What to do if your Rights have been Violated?
 
The Constitution of Pakistan and Fundamental Rights

The currently enforced 1973 Constitution is the supreme law of the country and all laws passed should be in line with the Constitution. However, this Constitution has undergone various amendments, specially during the previous Martial Law period (1 977-1 985), which have weakened the guarantees it provides for equal rights.

Articles 8 to Article 28 of the 1973 Constitution describe the Fundamental Rights which are to be available to all citizens, women as well as men wherever they may be, as well as all people temporarily or permanently in Pakistan. However, the freedoms guaranteed can be curtailed or taken away by the government on the grounds of the sovereignty or integrity of Pakistan, maintenance of public order, public morality. BUT these restrictions can be challenged in the superior courts – see What to do if your Rights have been Violated below. The executive is bound to implement these rights while the judiciary is bound to take notice of any violations and provide redress on individual complaints or take notice of its own (called ‘suo moto’ notice) of any gross violations of a collective right. For example, the Supreme Court has recently taken suo moto notice of the killings in Karachi.

The basis of fundamental rights is laid out in Article 4, which states that it is the inalienable right (i.e., can never be taken away) of individuals (citizens wherever they may be as well as individuals currently in Pakistan) to enjoy the protection of law and be treated in accordance with law. It also guarantees the protection of life, liberty, body, reputation & property of an individual.

A person cannot be:

  • prevented from doing something which is legal
  • compelled to do something which the law does not require him/her to do

Fundamental Rights in the Constitution

In this chart, rather than going in numerical order as they appear in the Constitution, we have grouped Fundamental Rights according to the issues they deal with.

Topic Rights
Fundamental
Rights are
Supreme:Article 8
any law or custom or usage having force of law inconsistent with Fundamental Rights shall be void
Right to Life &
Liberty:
Articles 9, 10, 12 & 13
  • no person can be deprived of life or liberty, save in accordance with law
  • on arrest or detention in custody, person is to be told grounds for such action & has the right to consult and be defended by legal practitioner of his/her choice.
  • arrested person is to be produced before the Magistrate within 24 hours of arrest; any detention beyond this period without the Magistrate’s authority is illegal.
    (Exceptions: people taken into preventive detention. However, there is also a specified procedure for such detention.)
  • a person cannot be punished for an act which was legally not a crime at the time of its occurrence
  • no punishment other than that prescribed in law at the time of occurrence
  • for one crime/offence the accused cannot be punished twice
  • the accused cannot be forced to give witness against herself/himself
Prohibition of
Slavery &
Forced Labour:
Article 11
  • slavery, all forms of forced labour and trafficking of human beings are prohibited
  • no child under 14 can work in a factory or a mine or any other hazardous employment.
    (Exceptions: prisoners and any duty for public service required by law.
    but compulsory service cannot be cruel or incompatible with human dignity)
Dignity of Man
and Privacy of
Home:Article 14
  • guarantees privacy of home and forbids torture for the purpose of extraction of evidence
  • Police or any other state agency can enter a home only after obtaining lawful authority (in writing, naming person & purpose of entry – e.g., arrest or recovery of stolen goods)
Basic Freedoms:
Articles 15, 16,
17, 18 & 19
  • every citizen is free to: move, live and settle in any part of the country, and also has the right to a passport and to travel abroad
  • every citizen has the right to assemble peacefully (Exceptions: these can be restricted by law in the public interest)
  • every citizen has the right to: join an association/union; freedom of speech and expression; freedom of the Press is guaranteed
    (Exceptions: can be restricted by law on grounds of sovereignty& integrity of Pakistan, public order or morality; government servant cannot be member of a political party)
  • every citizen, subject to qualifications can enter a trade, business or profession of his/her choice (Exceptions: regulations of trade & commerce can be made by the government)
Religious
Freedom &
Safeguards:
Articles 20, 21 & 22
every citizen has the right to believe, practice and propagate their religion

every religious denomination/sect has the right to establish, maintain and manage its religious institutions

no person can be compelled to pay any special tax to be spent on the propagation or maintenance of a particular religion or religious institution other than his/her own

no person attending any educational institution can be required to attend religious ceremonies, worship or receive education of a religion other than his/her own.

no discrimination against any community in grant of tax exemption or concessions for religious institutions

no discrimination in admission to educational institutions receiving public funds on grounds of race, religion, caste or place of birth
(Exceptions: quota system is permissible for advancement of any socially or educationally backward class of citizens)

Property Rights:
Articles 23 & 24
  • every citizen is allowed to own, sell his/her property in any part of the country
  • no person can be deprived of her/his property compulsorily. If property, land is needed in public interest, then the government has to give reasonable compensation to the owner.
Guarantees of
Equality & Non-
Discrimination:
Articles 25, 26 &
27
  • all citizens are equal before law and are entitled to equal protection of law
  • there shall be no discrimination on the basis of sex alone
    (Exceptions: the state can make special provisions for the protection of women and children)
  • no discrimination on any basis in access to public places, except those specifically reserved for religious purposes (Exceptions: the state can make special provisions for women and children)
  • no person otherwise qualified can be discriminated against in the matter of employment on the basis of race, religion, caste, sex,. residence or place of birth (Exceptions: specific services can be reserved for members of either sex if such posts/services require duties which cannot be adequately performed by the members of other sex, e.g. Lady Health Visitor)
Preservation of
Culture:
Article 28
citizens have a right to preserve their language, script and culture

In addition to the Fundamental Rights described in the table above, the Constitution also lists several ‘Principles of Policy’. The government is to make policies accordingly, which the government, all public institutions and all government servants are expected to uphold. A number of the Principles of Policy specifically relate to women:

Article 32 – special representation shall be given to women in local government institutions (i.e., local bodies).

Article 34 – steps shall be taken to ensure full participation of women in all spheres of national life.

Article 35 – the State shall protect marriage, the family, the mother and the child.

Article 37(e) – make sure women are not employed in vocations unsuited to their sex, and that working women get maternity benefits.

Article 38(a) – secure well-being of the people, irrespective of sex.

Article 38(d) – provide basic necessities of life, irrespective of sex.

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