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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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