Fundamental Rights in Pakistan
Fundamental Rights are enshrined in
the Constitution of Islamic Republic
of Pakistan. Chapter 1 of the
Constitution contains articles about
the fundamental rights. Articles 8 to
28 of the constitution deals with the
all fundamental rights provided to the
citizens of Pakistan. Followings are
the fundamental rights guaranteed to
the citizens of Pakistan under
constitution.
No person shall be deprived of life or
liberty, save in accordance with law
(article 9)
Safeguard as to arrest and detention.
All arrested person must be informed
of grounds of their arrest, they have
right to consult and defended by
lawyer of their choice.
Right of fair trial under article 10A
Slavery, FORCED labour is prohibited
and no child under age of 14 year be
employed in factory and mines.
There shall be protection against
retrospective punishment
There shall be protection against
double punishment and self-
incrimination.
Freedom of movement to everyone
Freedom of assembly for all citizens
Freedom of association for all
citizens
There shall be freedom of TRADE,
business and profession for all
citizens.
Freedom of speech for all citizens
All citizens shall have right to have
access to information in all matters of
public importance under article 19A.
Freedom to profess religion and to
manage religious institution in
country
Safeguard against the taxation for the
purposes of any particular religion.
Safeguard as to educational
institutes in respect of religion etc.
All citizens have right to acquire, hold
and dispose of property in any part of
Pakistan.
Protection of property rights of
owners.
All citizens are equal and there shall
be no discrimination on bases of sex
etc.
Free and compulsory education to all
children of age 5 to 16 by Government
No discrimination in respect of
access to public places.
Safeguard against discrimination in
services.
All citizens have right to preserve
their particular language, script and
culture
Article 199: Jurisdiction of High Court
1. Subject to the Constitution, a High
Court may, if it is satisfied that no
other adequate remedy is provided
by law-
a. on the application of any aggrieved
party, make an order-
i. directing a person performing,
within the territorial jurisdiction of the
Court, functions in connection with
the affairs of the Federation, a
Province or a local authority, to
refrain from doing anything he is not
permitted by law to do, or to do
anything he is required by law to do;
or
ii. declaring that any act done or
proceeding taken within the
territorial jurisdiction of the Court by
a person performing functions in
connection with the affairs of the
Federation, a Province or a local
authority has been done or taken
without lawful authority and is of no
legal effect; or
b. on the application of any person,
make an order-
i. directing that a person in custody
within the territorial jurisdiction of the
Court be brought before it so that the
Court may satisfy itself that he is not
being held in custody without lawful
authority or in an unlawful manner; or
ii. requiring a person within the
territorial jurisdiction of the Court
holding or purporting to hold a public
office to show under what authority of
law he claims to hold that office; or
c. on the application of any aggrieved
person, make an order giving such
directions to any person or authority,
including any Government exercising
any power or performing any function
in, or in relation to, any territory
within the jurisdiction of that Court as
may be appropriate for the
enforcement of any of the
Fundamental Rights conferred by
Chapter 1 of Part II.
2. Subject to the Constitution, the
right to move a High Court for the
enforcement of any of the
Fundamental Rights conferred by
Chapter 1 of Part II shall not be
abridged.
3. An order shall not be made under
clause (1) on application made by or
in relation to a person who is a
member of the Armed FORCES of
Pakistan, or who is for the time being
subject to any law relating to any of
those FORCES , in respect of his
terms and conditions of service, in
respect of any matter arising out of
his service, or in respect of any action
taken in relation to him as a member
of the Armed Forces of Pakistan or as
a person subject to such law.
4. Where-a. an application is made to
a High Court for an order under
paragraph (a) or paragraph (c) of
clause (1), and
b. the making of an interim order
would have the effect of prejudicing
or interfering with the carrying out of
a public work or of otherwise being
harmful to public interest or State
property or of impeding the
assessment or collection of public
revenues, the Court shall not make an
interim order unless the prescribed
law officer has been given notice of
the application and he or any person
authorised by him in that behalf has
had an opportunity of being heard
and the Court, for reasons to be
recorded in writing, is satisfied that
the interim order-
i. would not have such effect as
aforesaid; or
ii. would have the effect of
suspending an order or proceeding
which on the face of the record is
without jurisdiction.
4A. An interim order made by a High
Court on an application made to it to
question the validity or legal effect of
any order made, proceeding taken or
act done by any authority or person,
which has been made, taken or done
or purports to have been made, taken
or done under any law which is
specified in Part I of the First
Schedule or relates to, or is
connected with, State property or
assessment or collection of public
revenues shall cease to have effect
on the expiration of a period of six
months following the day on
which it is made:
Provided that the matter shall be
finally decided by the High Court
within six months from the date on
which the interim order is made.
5. In this Article, unless the context
otherwise requires,- "person"
includes any body politic or
corporate, any authority of or under
the control of the Federal
Government or of a Provincial
Government, and any Court or
tribunal, other than the Supreme
Court, a High Court or a Court or
tribunal established under a law
relating to the Armed Forces of
Pakistan; and "prescribed law
officer" means
a. in relation to an application
affecting the Federal Government or
an authority of or under the control of
the Federal Government, the
Attorney-General, and
b. in any other case, the Advocate-
General for the Province in which the
application is made.
Writ
The term “Writ” has its origin from
Common Law. Basically, it means
formal written orders issued by
Superior Courts to subordinate
courts or Government Officials. The
purpose of write is to preserve and
protects the fundamental rights of an
individual.
In Pakistan Article 199 of the
Constitution is about write in High
Court. When there is no other remedy
available to person, he can file write
petition under article 199 of the
Constitution of Pakistan.
Types of Writ
There are many types of writes but in
Pakistan followings are commonly
used.
1-Writ of Habeas Corpus
The Latin Term Habeas Corpus
means “to produce the body”. This
write is issued to institution or prison
to release the prisoner or bring it
before the court.
2-Writ of Mandamus
This writ is issued for lower courts or
government official in case where
courts or officials are not following
the laws. Simply it means an order to
do an act which a person is bound by
law to do.
3-Writ of Certiorari
This write is issued when a lower
court made a decision which is
incorrect or inappropriate in eyes of
higher court. In this write higher
courts are allowed to call for record
and revise the decision of lower
courts or officials.
4-Writ of Quo Warranto
It simply means “under what
authority you are holding this office”.
This write is issued when a person
claims any power without legal
authority behind it or when official
done any act without backing of law.
5-Write of Prohibition
In circumstances where the case is
outside the jurisdiction of lower
courts, the higher courts can issue
the Write of Prohibition to stop the
lower court’s proceedings
Short Notes on Writs
Habeas Corpus
A writ of Habeas Corpus is in the
nature of an order calling upon the
person who has detained another to
produce the latter before the court in
order to let the court know on what
ground he has been confined and to
set him free if there is no legal
justification for the imprisonment.
The words 'Habeas Corpus' literally
mean 'You may have the body'. The
writ may be addressed to any person
whatever, an official or a private
person who has another person in his
custody and disobedience to the writ
is met with punishment for contempt
of court.
The different purposes for which the
writ of Habeas Corpus is available are
as follows: (a) for the enforcement of
fundamental rights (b) It will also
issue where the order of
imprisonment or detention is ultra-
wires the state which authorises the
imprisonment or detention.
The writ of habeas corpus is,
however, not issued in the following
cases: (i) where the person against
whom the writ is issued or the person
who is detained is not within the
jurisdiction of the court (ii) To secure
the release of a person who has been
imprisoned by a court of law on a
criminal charge (ii) To interfere with a
proceeding for contempt by a court of
record or by parliament.
Mandamus
The Latin word mandamus means
"we order". The writ of mandamus is
an order of the High Court or the
Supreme Court commanding a
person or a body to do that which it is
his, of its, duty to do. Usually, it is an
order directing the performance of
ministerial acts. A ministerial act is
one which a person or body is obliged
by law to perform under given
circumstances.
For instance, a licensing officer is
obliged to issue a license to an
applicant if the latter fulfils all the
conditions laid down for the issue of
such license. Similarly, an appointing
authority should issue a letter of
appointment to a candidate if all the
formalities of selection are over and if
the candidate is declared fit for the
appointment.
But despite the fulfilment of such
conditions, if the officer or the
authority concerned refuses or fails
to issue the appointment letter, the
aggrieved person has a right to seek
the remedy through a writ of
mandamus.
There are three essential conditions
for the issue of a writ of mandamus.
First, the applicant must show that he
has a real and special interest in the
subject matter and a specific legal
right to enforce. Secondly, he must
show that there resides in him a legal
right to the performance sought, and
finally, that there is no other equally
effective, convenient and beneficial
remedy.
Certiorari
Writ of certiorari is a writ which is
issued against body enjoying legal
authority and through this authority
this body enjoys the powers to
scrutinize the legal aspect of legally
enforceable rights and duties, their
outcome and other related matters.
This body is under legal duty to not
only exercise its legal authority but to
exercise it duly on the floor of well-
established principle of law. Legal
authority implies obligation to see
and appreciate legal pros and cons in
legal manner, what is legal and
proper is deserved to be appreciated
by the learned world of experts and
what is arbitrary is deserved to be
corrected through issuance of writs.
Thus, writ of certiorari is an order of
the High Court issued against
subordinate courts, tribunals,
authorities to transfer to it the record
of proceedings pending with them for
scrutiny. After scrutiny and
adjudging the case in reference to
the objection raised court will pass
appropriate order which may include
quashing of proceedings at
subordinate court/tribunal/authority.
Writ can be issued against judicial as
well as quasi- judicial body.
"Grounds for issuance of Certiorari",
Writ of certiorari can be issued at any
of the following grounds.
(a) Want or excess of jurisdiction
(b) Violation of procedure required to
be followed.
(c) Violation of principle of natural
justice.
(d) Error of law apparent on the face
of the record.
Prohibition:
Writ of certiorari and writ of
prohibition both lie against body
exercising legal authority. Like
certiorari writ of prohibition can also
be issued against body exercising
judicial or quasi-judicial powers.
Writ of prohibition is nugatory in
nature. It prevents/prohibits the
inferior court from exercising
assuming jurisdiction which is not
vested in it by law. Writ of prohibition
lies for both excess and absence of
jurisdiction.
Both writs look alike but there is
major difference between the two on
the basis of stage at which they are
issued. If a legal authority takes up a
dispute on which it has no jurisdiction
and decides the matter, then other
party can approach High Court on the
ground of absence of jurisdiction
through a petition for issuance of writ
of certiorari, however if the case is
still pending and has not been finally
decided yet then the aggrieved party
can ask for issuance of writ of
prohibition and thereby can prevent
the inferior authority from
proceeding further in the case.
There may be a case where
proceeding of an inferior court is
partly within and partly without
jurisdiction. In those cases, writ of
prohibition will lie only against acts
which are in excess/without
jurisdiction.
Quo Warranto
The writ of quo warranto is a common
law process of great antiquity.
According to this, the High Courts or
the Supreme Court may grant an
injunction to restrain a person from
acting in an office to which he is not
entitled and may also declare the
office to be vacant.
What the Court has to consider in an
application for a writ of quo warranto
is whether there has been usurpation
of an office of a public nature and an
office substantive in character, i.e.,
an office independent in title. It is a
remedy given by law at the discretion
of the Court and is not issued as a
matter of course.
An application for the issue of a writ
of quo warranto is maintainable only
in respect of offices of public nature
which are the creation of statute and
not against private institutions. In the
case of domestic tribunals, the order
of the tribunal will not be disturbed
unless it is attacked on the ground of
bonafides or vires.
Thus, it has been held that a member
of a Legislative Assembly has every
right to know by what authority the
Speaker of the body functions as
such, if he bonafide thinks that the
Speaker holds his office without
authority and the application for a
writ of quo warranto is maintainable.
The president of Pakistan
There shall be a head of state as a
president in Pakistan according to its
constitution under the article 41. He
shall represent the unity of the
Islamic republic of Pakistan and shall
be a nominal head of the state with
the real powers exercise by the prime
minister and his/her cabinet.
Emergency Powers:
The president of India can declare
three kinds of emergencies as:
Emergency arising out of war,
external aggression or armed
rebellion.
Emergency arising out of the failure
of the constitutional machinery in the
states.
Emergency arising out of the threat to
financial stability.
Powers of the President of Pakistan
Executive Powers:
The federation shall exercise its
authority in the name of the president
under article 90 of the constitution.
The elected prime minister is called
to assume the PM office by the
president who also takes oath of
office from the elected prime
minister.
A federal minister or minister of state
shall also make before the president
oath of their office.
The PM may resign his/her office
by writing under his/her
hand addressed to the president.
The president also
appoints provincial governors,
members of the Islamic Council,
members of the council of common
interests, members of Council,
members of the National Finance
Commission and chairman and
members of the Public Service
Commission.
Legislative Powers
The president can summon either
house or both the houses of the
parliament at joint sitting as he thinks
fit.
He/she may address either house or
houses assembled together.
The president can dissolve the
National Assembly only on the advice
of the prime minister.
A bill passed by both the houses of
the parliament is to be presented to
the president for his/her assent to
make it an act of parliament.
The president may issue and
promulgate an Ordinance which shall
have the same force and effect as an
act of parliament.
Judicial Powers:
The president appoints the Chief
Justice of Pakistan and other judges
of the Supreme Court after
consultation with the Chief Justice.
He/she can remove the judges of the
Supreme Court and high courts only
on the recommendation of the
supreme judicial council.
The president has power to grant
pardon, reprieve and respite and to
remit, suspend or commute any
sentence passed by any court.
Financial Powers:
The president appoints the Auditor-
General, members of the National
Economic Council and
National Finance Commission.
A money bill also be presented before
president for his/her assent.
No bill or amendment which imposes
a tax or duty, whose income is
assigned to any province, shall be
introduced or removed in the
National Assembly except with the
previous sanctions of the president.
He/she can also declare financial
emergency in accordance with a
financial crisis.
Explain the composition of the
Parliament of Pakistan and discuss
membership, function and power of
the National Assembly?
Composition of Parliament
According to section 50 of the
constitution, there shall be a
Parliament of Pakistan consisting of
the President and two Houses to be
known respectively as the National
Assembly and the senate.
Explanation The constitution of 1973
by providing bi-cameral legislature
has met a long-standing demand of
the people of the small Provinces.
Article 50 proclaims that there shall
be a Parliament consisting of the
President and two houses to be
known as the National Assembly and
the Senate.
The national legislature of Pakistan
consists of the National Assembly,
the senate and the President. In the
matter of enactment of law all of them
are to act together, each bring
complimentary to the other.
Membership
The National Assembly consist of 332
members to the Senate 87 members.
The national assembly is to be
elected on the basis of adult
franchise by direct, free and secret
vote.
Composition of National Assembly
The National Assembly presently
consist of 332 members to be elected
on the basis of adult franchise by
direct free and secret vote. The seats
in the national assembly have been
allocated to each Province, the
federally administered tribal areas
and federal capital on the basis of
population.
Qualification of voter – A person is
entitled to vote if –
(1). He is a citizen of Pakistan,
(2). He is not less than 18 years of
age,
(3). His name appears on the
electoral roll and,
(4). He is not declared by a
competent court to be unsound mind.
Duration – The term of the National
Assembly is 5 years to be counted
from the day of its first meeting, after
the expiry of which period it will
automatically stand dissolved, unless
sooner dissolved under Article 58 of
the Constitution.
Function and powers
The National Assembly is competent
to pass laws on the matters relating
to part-I of the federal legislative list.
It may also pass laws with regard to
matters in part-II of the federal
legislative list or the concurrent
legislative list. Besides the National
Assembly has the power of
controlling the finances of the
federation. The budget and all
proposals for expenditure or taxation
are to be submitted to the National
Assembly. But certain items of
expenditure such as the salaries ad
allowance of the President, Judges of
the Supreme Court, the Chief election
Commissioner and the attorney
general are not to be submitted for
vote in the National Assembly.
Power to control executive
The National Assembly has also the
power to control the Executive. The
Ministers are usually to be chosen
from the members of the National
Assembly and are the Government of
the country.
Money bill
A money bill can only originate in the
National Assembly and after it has
been passed by it, it is not required to
be transmitted to the senate, but is to
be presented to the President for his
assent.
Speaker of National Assembly
Introduction
National Assembly is lower house of
bicameral Parliament of Pakistan.
Speaker is the presiding officer of the
National Assembly. Speaker enjoys
great respect in the house In
Pakistan, speaker is impartial
person.
Relevant Provisions
Article 53 constitution of Pakistan
Qualification
He should be member of National
Assembly.
Procedure for Election of Speaker of
National Assembly
Following points are important to
explain it
1. Election in First Meeting of New
National Assembly
After a general election, new National
Assembly elects its Speaker at its
first meeting.
2. Exclusion of any Other Business
All its first meeting, new National
Assembly elects its Speaker and
does this to the exclusion of any other
business.
3. Presiding Officer of First Meeting of
New National Assembly
Speaker of former National Assembly
presides over first meeting of new
National Assembly for election of
Speaker of new National Assembly.
4. Election of Speaker when Office of
Speaker Become Vacant
Whenever office of Speaker of
National Assembly becomes vacant,
National Assembly elects another
member as Speaker.
5. Oath of Office: A- 53(2) The
Speaker shall take oath of office
before National Assembly. The form
of oath set out in the third schedule.
Term of Office
Term of office of the Speaker is
usually 5 years.
Removal or Terminat6ion of Speaker
The Assembly shall give the notice of
resolution of non-confidence seven
days earlier. If the resolution is
passed by the majority of the total
membership, the speaker shall cease
to hold the office and when such
resolution is under process the
speaker cannot preside over the
house.
Power and Functions of Speaker of
National Assembly
Following are the power and
functions of speaker of National
Assembly
1. Judging the Validity of Money Bill
It is the power of speaker to judge the
validity of money bill. He decides
whether a bill is money bill or
otherwise.
2. Preside the Session of House
It is the most important duty of the
speaker to preside over the house.
3. Maintenance of Disciplines
Speaker has power to maintain the
discipline of the house.
4. Casting Vote
Speaker has no right to vote but when
there are Duality votes he can use his
vote.
5. Grant Permission of Questions
Speaker is empowered to grant
permission of question to members in
the house. Speaker can approve or
over-rule the adjournment motion in
the house.
6. Acting President
In absence of chairman of senate.
Speaker is officiating president.
7. Summon the Session of National
Assembly
Speaker is empowered to summon
the session of National Assembly on
the request of one fourth of total
members of the Assembly.
Conclusion
To conclude that Speaker is the
presiding office of National
Assembly. He is elected by the house.
He is not a party man. His most
important function is to preside over
the Assembly and maintain discipline
in the house.
Salient Feature of the 1973
Constitution of Pakistan:
The present Constitution is the third
constitution of the country which was
drafted and passed by the National
Assembly of Pakistan on April 10,
1973. It was authenticated by the
president on April 12, 1973 and
enforced on August 14, 1973.
Following are the main
characteristics of this constitution.
1) A Written Constitution
The Constitution of 1973 is written
with a preamble, 280 Article, 6
Schedules and a few Amendments.
Political Usage’s and Traditions are
yet to emerge and develop side by
side with the constitution of Pakistan.
2) Flexibility
The Constitution is neither too rigid
like the American Constitution nor
too flexible like the British
Constitution. It can he amended if 2/3
majority of the total strength of the
National Assembly approves an
amendment in it and when the same
is absented to by the Senate with
majority of its total strength.
3) Republican Form of Government
According to the Constitution,
Pakistan shall be an Islamic Republic.
The Head of the State shall be elected
by the parliament in a joint sitting for
a term of five years. He may be re-
elected for another term also.
4) Federal Form of Government
Pakistan shall be a Federation
consisting of the provinces of Sind,
Punjab, N.W.F.P and Baluchistan.
Powers of the Federation have been
enumerated in the Federal
Legislative list part-I and II and
residuary powers belong to the
provinces Powers common to both
the federal and the provincial
Governments have been enumerated
in the Concurrent List.
5) Parliamentary Form of
Government
The Constitution provides for
Parliamentary form of Government
both at the centre and in the
provinces. Both the Prime Minister
and the Chief Ministers are held
responsible to the National and
Provincial Assemblies. They continue
in office as long as they command
confidence of the assemblies.
They may be removed by the
assemblies through a vote of No-
Confidence.
6) Bicameral Legislature
The Legislature will Bicameral. The
Lower House is called the National
Assembly directly elected by the
people on the basis of one man one
vote for a term of 5 years. The upper
House is called the Senate elected by
the Provincial Assemblies on the
basis of Proportional Representation.
The National Assembly is subject to
dissolution but not the Senate.
7) Fundamental Rights
The Constitution grants and protects
the fundamental rights of the citizens
of Pakistan. They include the right to
life, property, profession, liberty of
thought and expression, freedom of
association, religion, equality of
citizens etc. In case of their violation,
the affected person may go to the
Courts for seeking redress of his
grievances.
8) Pakistan to be a Welfare State
The Constitution reflects the spirit of
a Welfare State. It provides that
•illiteracy shall be removed;
educational and economic interests
of backward classes and areas shall
be promoted; just and human
conditions of work shall be provided;
prostitution, gambling and
consumption of alcoholic liquor shall
be prohibited and well-being of the
people, irrespective of caste, sex,
creed or race will be secured by
raising their standard of living. Basic
necessities of life like food, housing,
clothing, education, and medical
relief shall be provided to the citizens
who are permanently or temporarily
unable to earn their livelihood.
9) Independence of Judiciary
Although the members of the
judiciary are appointed by the
president yet the powers to remove
them from their offices have not been
given to him for ensuring
independence of judiciary. The
judges can be removed by the
president only when the Supreme
Judicial Council of Pakistan so
advises him. The Constitution also
provides independence of the
judiciary from the Executive.
Council of Islamic Ideology
Council of Islamic
Ideology (Urdu: ‫ )اِسالمی نظریاتی کونسل‬is
a constitutional body of the Islamic
Republic of Pakistan, responsible for
giving legal advice on Islamic issues
to the government and
[1]
the Parliament. The body was
founded in 1962 under the 1st Constituent Assembly of
government of Ayub Khan. Pakistan. The dismissal was legally
Functions challenged by Maulvi Tamizuddin
The council has the following Khan, the president of the assembly.
functions:[2] Except one dissenting opinion, the
To recommend laws conforming majority of the court supported the
to Qur'an and Sunnah to dismissal on grounds of the doctrine
the Parliament and Provincial of necessity. The verdict was
Assemblies. considered a blow to democratic
To advise the Parliament, norms, which had ramifications in
Government of Pakistan, President of modern-
Pakistan, or Governor on any day Pakistan and Bangladesh.
question referred to the Council as to Facts
whether a proposed law is or is not In 1954, Governor General Ghulam
repugnant to the Injunctions of Islam. Muhammad dissolved the
To make recommendations to bring Constituent Assembly of Pakistan.
current laws into conformity with Earlier, he dismissed Prime
Islamic injunctions. Minister Khawaja Nazimuddin who
To compile guidance for enjoyed the confidence of the
the Parliament and Provincial constituent assembly. Maulvi
Assemblies. Tamizuddin Khan, the President of
However, the Government can make the Constituent Assembly and a
a law before advice is furnished by representative from East Bengal,
the council. The council is also challenged the Governor General's
responsible for submitting an annual actions in the Sindh High Court,
interim report, which is discussed in where the dissolution was ruled
the Parliament and Provincial as ultra vires. The federal
Assemblies within six months of its government appealed in the
receipt.[2] Recently, the Council was country's apex Federal Court.
strongly criticized in many Judgement
traditionalist quarters for its In 1955, the Federal Court led
recommendations on the procedure by Chief Justice Muhammad Munir
for khula. ruled in support of the Governor
General. The court suspended the
Federation of Pakistan v. Maulvi decision of the High Court and held
Tamizuddin Khan the Governor General, and not the
Federation of Pakistan v. Maulvi Constituent Assembly, to be
Tamizuddin Khan (1955) is a court the sovereign authority. The court
case of the Dominion of Pakistan. The opined that royal assent can only be
Federal Court of Pakistan (now given by the Governor General as
the Supreme Court of Pakistan) ruled Pakistan was still a dominion and
in favor of the Governor General of hence not a fully independent
Pakistan's dismissal of the country. It gave the doctrine of
necessity as the grounds for its
decision.
Nawaz Sharif vs President of
Pakistan
After independence, Pakistan
popular it’s weak political institutions
and powerful Army. So, these major
factors, Pakistan not constitutional
development and many civil
Governments have been dismissed.
When National Assembly has been
dissolved and Prime Minister has
been sent home, than the political
leader have filed cases in superior
courts against such undemocratic
steps and Judiciary plays a very
important role in the interpretation of
the law. The important and leading
case in the History of Pakistan is
Muhammad Nawaz Sharif vs
President of Pakistan case is one of
them.
Bench of Supreme Court
Chief Justice: Nasim Hassan Shah
Justice: Shafi-ur-Rehman
Justice: Saad Saood Jan
Justice: Abdul Qadeer Chaudhary
Justice: Ajmal Mian
Justice: Muhammad Afzal Lone
Justice: Sajjad Ali Shah
Justice: Muhammad Rafique Tarar
Justice: Saleem Akhter
Justice: Saeed uz Zaman Siddiqui
Justice: Fazal Elahi Khan
Facts of Case
Following are the facts of case Nawaz
Sharif vs President of Pakistan
1. Differences with President
Although both Prime Minister Nawaz
Sharif and President Ghulam Ishaq
Khan were conservatives, yet
difference over authority emerged
between them and such difference
were intensified in 1993.
2. Address to Nation
In April 1993, Prime Minister Nawaz
Sharif addressed nation and alleged
that some political elements had
gathered under umbrella of President
Ghulam Ishaq Khan and were
conspiring to overthrow his elected
government.
3. Dissolution of National Assembly
and Dismissal of PM
After Nawaz Sharif’s address to
nation, President Ghulam Ishaq Khan
states that government of federation
could not be carried out in
accordance with provisions of
constitution of Pakistan. Therefore,
he dissolved National Assembly and
dismissed Prime Minister Nawaz
Sharif with his cabinet.
4. Institution of Case
After dissolution of National
Assembly and dismissal of
government, Nawaz Sharif filed this
case in Supreme Court of Pakistan.
Decision of Supreme Court
Following points are important to
discuss decision of Supreme Court
1. Unlawful action of President
In these circumstances, the dismissal
of the Prime Minister along with his
Cabinet and the dissolution of the
National Assembly under the
purported exercise of powers
conferred on the President under
Article 58(2)(b) could be upheld. The
action taken did not fall within the
ambit of this provision. This unlawful
action moreover was also violation of
Fundamental right.
2. Majority basis decision
By majority (of 10 to 1) it was held that
the order of the April 1993, passed by
the President of Pakistan is not within
the powers conferred on the
President under Article 58(2)(b) of
the constitution and other enabling
powers available to him in that behalf
and has, therefore, been passed
without lawful authority and is of no
legal effect.
3. Consequence of Court order
As consequences of our order, the
National Assembly, Prime Minster
and Minister and the Cabinet shall
stand restored and entitled to
function as immediately before the
impugned order was passed.
Conclusion
To conclude, it can be stated that
some political critics consider
judgment of Supreme Court in this
case as a milestone in history of
judiciary of Pakistan. They explain
this reason in favor of their opinion
that it was for first time that
President’s exercise of powers under
Article 58(2)(b) of constitution was
not accepted and was declared
unconstitutional and illegal.
Benazir Butto vs Federation of
Pakistan
During General Zial-ulHaq’s regime,
amendments were made in various
laws and different orders and
ordinances were passed. Benazir
Bhutto challenged some of these
amendments and orders through two
cases. Among these case first is
remembered as Benazir Bhutto vs
Federation of Pakistan PLD 1988 SC
416 and other is remembered as
Benazir Bhutto vs Federation of
Pakistan PLD 1988 SC 66.
Bench of Supreme Court
Chief Justice: Sajjad Ali Shah
Justice: Saleem Akhtar
Justice: Fazal Ilahi Khan
Justice: Zia Mahmood Mirza
Justice: Irshad Hasan Khan
Justice: Raja Afrasiab Khan
Justice: Munawar Ahmad Mirza
Facts of Cases
Following are the Facts of the case
1. Facts of Case of Benazir Bhutto vs
Federation of Pakistan PLD 1988 SC
416
Following are the points are
important to explain it.
1.1 Political Parties Act, 1962
General Zia-ul-Haq’s government
made different amendments in
Political Parties Act, 1962. Through
this case, it was alleged that these
amendments were in violation of
those fundamental rights, which
constitution of Pakistan has provided
in form of freedom of association and
equality of citizens.
1.2 Freedom of Association Order,
1978
Different powers were granted under
Freedom of Association Order, 1978.
Through this case, these granted
powers were alleged as
unconstitutional.
1.3 Article 270-A of Constitution of
Pakistan
Article 270-A of constitution of
Pakistan affirmed different laws,
order and ordinances, which General
Zia-ul-Haq passed after imposition of
martial law. Through this case, it was
alleged that Article 270-A curtailed
rights of citizens especially right to
form some political party or to be
member of some political party. Even
it was also alleged that Article 270-A
was in contradiction of Article 2-A of
constitution.
Facts of Case of Benazir Bhutto vs
Federation of Pakistan PLD 1988 SC
66
Section 21(1)(b) of Representation of
People Act provided provisions for
allocation of prescribed symbols to
each contesting candidate. Through
this case, this section was
challenged as unconstitutional.
Conclusion
To conclude, it can be stated that a
comparison can be made between
these two cases and case of Asma
Jillani vs Federation of
Pakistan judgments of all these three
case were announced after end of
military regimes of General Yahya
Khan and General Zia-ul-Haq.
Asma Jilani vs Federation of Pakistan
Judiciary plays a very important role
in the interpretation of the statutes
and laws. The judiciary has a pivotal
role in the development of law. It
develops law by giving judgments
which become precedents. So
precedents may be regarded as
source of law. In Pakistan to the
superior Courts gave judgments
which became precedents. There
have been a lot of important and
leading cases in the history of
Pakistan. Asma Jilani vs Government
of the Punjab case is one of them.
Bench of Supreme Court
Chief Justice: Hamood ur Rehman
Justice: Waheed ud Din
Ahmad
Justice: Muhammad Yaqub
Ali
Justice: Salahud din Ahmad
and
Justice: Sajjad Ahmad
Facts of Case
The facts of the Asma Jalani v/s
Government of Punjab case are
following:
1. Challenge of Malik Altaf Gauhar’s
Detention
The appeals were filed because of the
detention of Malik Altaf Gauhar and
Malik Ghulam Gillni. The detention of
both of them was challenged.
2. Persons challenged the detention
The persons who challenged the
detention were Miss Asma Jilani who
filed appeal for the release of Malik
Ghulam Jilani and the other one was
Zarina Gauhar who filed appeal for
the release of her husband Altaf
Gauhar.
3. Court in which Petition filed
The writ petition was filed by Asma
Jilani in the Lahore High Court for
release of her father Ghulam Jillani
and Mrs Zarina Gohar filed an appeal
in Sindh-Balochistan High Court.
4. Law under which Mr. Altaf
Detained
Altaf Gauhar and Malik Ghulam Jilani
were detained under Martial Law
Regulation No. 78 of 1971.
Principles of Law or Rule of Law
Following are the Principles of law or
Rule of law.
i. Principle laid down in State Vs
Dosso
It was held in this appeal that
principles, which were laid down in
State vs Dosso, were not justified.
ii. Constitution of Pakistan 1962
It was settled in this appeal that
courts gave full effect to constitution
of 1962, and all laws made and acts of
various civil and military
governments became lawful and
valid due to that recognition, which
constitution of 1962 and courts gave
them.
iii. Court Duty
It was held in this appeal that court’s
judicial function was to adjudicate
upon a real and present controversy,
which a litigant raised before it, and if
litigant did not chose to raise a
question, it was not for court to raise
it suo motu.
iv. Bias in Judge
It was settled in this appeal that mere
association with drafting of a law
could not disqualify a judge from
interpreting that law in light of those
arguments, which presented before
him.
v. Jurisdiction
It was held in this appeal that superior
courts are judge of their own
jurisdiction.
vi. Proclamation of Martial Law
It was decided in this appeal that
General Yahya Khan’s proclamation
of martial law was illegal.
vii. Doctrine of Necessity
Although doctrine of necessity was
once again pleaded to defend military
regime of General Yahya Khan, yet
same was rejected through judgment
of this appeal.
Conclusion
To conclude, it can be stated that
judgment of case of Miss Asma Jillani
was though announced after end of
General Yahya Khan’s rule, yet it
initially led to end of Bhutto’s martial
law and finally it paved way for
restoration of democracy and for
adoption of constitution of 1973.
Supreme Judicial Council and its
Functions
Introduction
Supreme Judicial Council is a unique
institution. Supreme Judicial Council
has been established under
constitution of Pakistan to investigate
incapability of a judge of Supreme
Court or High Court to perform duties
of his office or his guilt of misconduct.
Relevant Provisions
Article 209 to 211 of 1973
Constitution of Pakistan are relating
to supreme judicial council.
Organization of Supreme Judicial
Council; Article 209 (2)
Supreme Judicial Council consists of;
The Chief Justice of Pakistan
The two next most senior Judges of
Supreme Court and
The two most senior Chief Justices of
High court
Functions of Supreme Judicial
Council
Following are the functions of
supreme judicial council
1. Making Inquiry
Inquiry regarding incapability of
judge of Supreme Court or High court
due to physical or mental incapacity
or inquiry regarding guilt misconduct
of judge of Supreme Court or High
Court.
2. Opinion
If there is a difference of opinion
amongst members of Supreme
Judicial Council, opinion of majority
prevails, and the report of the Council
to the President is expressed is terms
of view of the majority.
3. Removal of Judge
If the Supreme Judicial Council
reports to the President that it is of
the opinion that judge of Supreme
Court or High Court is incapable of
performing the duties of his office or
has been guilty of misconduct, and
that he should be removed from
office, the President can remove the
Judge from office.
4. Code of Conduct; Article 209(8):
Supreme Judicial Council issue a
code of conduct, which is to be
observed by Judges of Supreme
Court and High Courts.
5. Powers
It is also the function of the council
and its power of issuing directions or
orders for securing the attendance of
any person or for discovery or
production of documents. The orders
issued by the council in this
connection are enforceable as
though, had been issued by the
Supreme Court.
6. Bar of Jurisdiction; Article 211:
The actions taken or reports made by
the council shall not be questioned in
any court of law.
Conclusion
To conclude, it can be stated that
Supreme Judicial Council cannot be
completed without Chief Justice of
Pakistan and its verdict is not valid
without Chief Justice of Pakistan.
Election of the chairman and deputy
chairman, Duties of the Chairman
Before, transacting any business,
except the oath taking ceremony, the
senate will choose its Chairman and
Deputy Chairman among its
members. If the office of Chairman or
Deputy Chairman becomes vacant,
the Senate will elect another member
as a Chairman or Deputy Chairman as
the case may be. Oath of the office. It
is circumventing upon the Chairman
and Deputy Chairman to take an oath
before the Senate before entering
upon their offices in the form set out
in the Third Schedule.
Vacancy in the office
The office of the Chairman or Deputy
Chairman may become vacant if.
He resigns his office,
He ceases to be a member of the
senate,
He is removed from the office.
Duties of the Chairman under
constitution
The duties of the Chairman are the
same as of the Speaker. Further he is
to act as President of the State when
the office of President is vacant, or
the President is absent or is unable to
perform his functions due to any
reason. Chairman or Deputy
Chairman is not provided at a
meeting of Senate when a resolution
for his removal is being considered.
Term of office
The term of office of the Chairman or
the Deputy Chairman is three year
from the day of on which he enters
upon his office.
Resignation
The Chairman can resign his office by
writing under his hand addressed to
the President. The resignation of the
Deputy Chairman is to be addressed
to the Chairman.
ow chief election commissioner can
be appointed and removed from
the office?
How chief election commissioner can
be appointed and removed from the
office?
The chief election commissioner is
appointed by the president in his
direction and no person shall be
appointed as commissioner unless he
is, or has been a judge of the
Supreme Court or is, or has been, a
judge of the high court. But it is a
condition precedent that the judge of
high court must be such who can be
eligible for appointment as judge of
Supreme Court as provided under
article 177, clause 2(a). it means that
the judge of high court must have got
the standing of five years for
appointment. Before entering upon
office, the commissioner shall make
before the chief justice of Pakistan
oath in the manner prescribed in
schedule-III. The term of the office of
the commissioner is three years
provided that the national assembly
may be resolution extent the term of
the commissioner by a period not
exceeding one year.
Removal of the chief election
commissioner
The commissioner shall be removed
from office in the manner prescribed
under article 209 says that on
information received from the
supreme judicial council or from any
other source the president is of the
opinion that the chief election
commissioner.
(A). May be incapable of properly
performing the duties of his office by
reason of physical and mental
incapacity.
(B). May have been guilty of
misconduct…
The president shall direct the council
inquire into the matter, and when
after inquiry the council report to the
president that,
(A). The chief election com: is
incapable of performing the duties of
his office, or has been guilty of
misconduct.
(B). He should be removed from
office.
The president may remove the chief
election commissioner from office.
The constitution of the election
commissioner and also explain the
duties to be performed by the
commissioner?
Election commission
An election commissioner is prior to
each election of the national
assembly and provincial assemblies.
It’s constituted in accordance with
article 216 of the constitution of 1973.
Article 218 of the constitution lays
down the following constitution of the
election commission. The election
commission shall consist of…
(A). The commissioner, who shall be
the chairman of the commission
and…
(B). Two members, each of whom
shall be a judge of high court
concerned and with the
commissioner.
It shall be they duty of the election
commission constituted in relation to
an election to organize and conduct
the election and make such
arrangements as are necessary to
ensure that the election is conducted
honestly, justly, fairly and in
accordance with law, and that
corrupt practices are guarded
against.
Duties of commissioner
It is the duty of the commissioner to
prepare electoral rolls for election to
the national assembly and the
provincial assemblies and revising
such rolls annually. The
commissioner organizes and
conducts the election to senate or to
fill casual vacancies in a house or a
provincial assembly. It is also
function of election commissioner to
appoint election tribunals.
Executive authorities to assist
commissioner
it shall be duty of executive
authorities in the federation and in
the provinces to assist the
commissioner and election
commission in the discharge of his or
their function. (Art. 220)
Rigid constitution
A constitution, whether rigid or
fixable, can be tested by seeing the
producer laid down for its change or
amendment. A fixable constitution
can legally be amended by the same
process of law making as an ordinary
law, while in a rigid constitution
specific machinery is provided in
itself by which any change or
amendment can be effected.
Qualification, appointment and
duties of Governor.
Qualification
According to article 101.
1). There shall be a Governor for each
province who shall be appointed by
the President [in his discretion (after
consultation with) the prime
minister].
2). A person shall not be appointed a
governor unless he is qualified to be
elected as a member of National
Assembly and is not less than thirty-
five year of age.
3). The Governor shall hold office
during the pleasure of the president
(and shall be entitles to such salary,
allowances and privileges as the
President may determine).
4). The Governor may, by writing
under his hand address to the
President raising his office.
5). The President may make such
provisions he thinks fit for the
discharge of function of a Governor
(in any contingency not provided for
in this part).
Duties of Governor
The Governor of the province was
requiring to perform his function
subject to the direction of the
President after consultation with the
Prime minister and hold office during
his pleasure. Under article 105 it is
laid down that as an Agent of the
President the Governor may, be
required by the President to perform
such functions, generally or in any
particular matter, as desired by him,
relating to such area in the
Federation, which are not included in
any province.
Qualification of Governor
A person eligible for the office of
Governor should possess the
following qualifications.
1). He should be a citizen of Pakistan.
2). He should be qualified to be
elected as a member of the National
Assembly.
3). He should be not less than thirty-
five years of age.
4). He should not hold any office or
profit in the service of Pakistan or
occupy any other position carrying a
right to remuneration.
5). He shall not be a candidate for
election as a member of Parliament
or a Provencal Assembly is appointed
as Governor his seat shall become
vacant.
Glimpses
1). The Governor of a province is
appointed by the president after
consultation with the Prime Minister
and hold office during his pleasure.
2). The Governor of a Province, was
required to perform his functions
subject to the directions of the
president.
3). Governor to bound by the advice
of the chief minster in discharge of
his function.
4). The Governor shall appoint
from among the member of the
Provencal assembly a chief minister
who, in his opinion is likely to
command the confidence of the
majority of the members of the
Provincial Assembly.
Rule of Law
means principles of general
application given by state to control
human behavior. It is a body of
principles, recognized and applied by
state in the administration of justice.
Any principle, which governs human
behavior generally, is law. Every law
curtail, restricts our liberty. Why we
accept law, we are slaves of law.
In simple term it means that all the
people should be governed and
controlled according to principle and
should no discrimination among them
at all. It has been generally in our
civilization that people prefer rule of
law and they are governed by rule
and not by the will of a single one. In
primitive societies principles were
provided by the customs. By using
customs law was made. They had
legal status. How one can dispose of
his property, how the price is
determined, all were dealt by the
customs. Customs were used to
provide principles. Customs could
not be changed easily and sometime
they could not be used to provide
principles and failed. Customs are
changed very slowly; even there is
not change in 100 years. All was dealt
with old style. If change is required,
then customs are failed to
accompany the social needs.
Customs had no role after a long
period. When customs diminished
then religion came and filled in the
place of customs. Apostles came with
revelation and they provided moral
conduct. This rule of conduct was
based for the controlling of human
being. The King/Queen governed
once a time people. They were
superior of the society. A new era
emerged. Society was peaceful and
customary law was available to
control people. All was OK. Society
was gaining strength. All were free to
choose their profession. They joined
different professions. A new set up
came with new values that people
would be governed by the will of
single one person and by the law and
principles. Concept of natural law
emerged. It was higher than the man
made laws. There was no defect in
religion. People were governed by
the natural law and not by the will of
ruler. Now concept arises:
1. No will be tried in two cases at a
time.
2. Law of evidence emerged.
3. Safeguards are provided for the
retention of property.
4. Impartial judgement came into
existence.
5. No torture will be used for
getting of confession, etc.
With the passage of time, natural law
gave national law. Internal nature
was same while external nature was
different. Every state in modern time
has right to have her-own law.
Natural law made national law.
Natural law comes to focus of
national law. Now people respect the
parliament because it is composed of
the people of their own
representative, they have authority;
they act according to the wishes of
the people. Parties follow manifestos.
This system is better than of judges
who sit in a closed room and decide
the fate of people without knowing
their wills. New political system
contains upper and lower houses,
parties, oppositions, and people
wishes. Now another problem came
into being. Representatives come
from upper class and they make laws
for upper class negating the lower
class of labour, tenants, common
people etc.
What is constitution? Constitution
does mean structure and
composition. Its ordinary meaning is
composition. According to political
science it means structure of the
government. Legally it means an
instrument which gives the structure
of government and which is generally
considered supreme. It is in writing
generally except British constitution
most part of which is unwritten. The
entire rest world has written
document, which is called
constitution. It provides structure of
government. State contains
population, government, people, and
sovereignty. Government of the
people runs the affairs of state.
Government has three organs, i.e.,
legislation which is parliament,
executive consists on President and
Prime Minister, and judiciary which
are courts.
Legislation is the body, which makes
the laws. People link to keep them
together. Government rules and runs
affairs of state by policy decisions
and serves and helps the
people. Constitutions considered
supreme law of the land/state. Its
organs are relationship with people.
Original jurisdiction of Supreme
Court: The Supreme Court has
exclusive jurisdiction in the inter-
government disputes, such as:
1. Punjab v Sind
2. Punjab v Pakistan
3. Punjab v Sind and Pakistan
4. Pakistan v All Provinces
This provision is based on principle
that all the disputes whether consist
on law or fact, must be determined by
Supreme Court if the parties in case
are governments either provinces or
provinces and federation. It is
undesirable that governments fight in
subordinate courts like common
litigation. This jurisdiction is
exclusive because it excludes the
jurisdiction of all other courts in
respect of disputes related with
Governments.
A Court is said to have original
jurisdiction when it has power to hear
and adjudicate upon the matter in the
first instance.
Exclusive jurisdiction means
jurisdiction when Court has powers
to hear, try, and decide a case
excluding any other Court.
Where Public importance is involved
with reference to Fundamental
Rights: Supreme Court is competent
to entertain a petition if considers
that a question of public importance
is involved with reference to
enforcement of any of the
Fundamental Rights conferred by the
Constitution. These are the cases,
which should not be prolonged
keeping in view of their importance.
Nusrat Bhutto Case, Martial law of
1962 case, Non-Party Based
Elections are the best examples of
the public importance.
Supreme Court decides the question
of public importance. Supreme Court
may or may not entertain the case
being considering of public interest
or not.
Appellate jurisdiction of Supreme
Court: Appellate jurisdiction of
Supreme Court includes:
1. Decisions of High Court such as
judgements, decrees, final order, or
sentence.
2. Cases from Federal Shariat
Court.
3. Cases from Federal Services
Tribunal.
Appeal can be instituted in Supreme
Court against the decision of High
Court provided:
1. Reversal of acquittal of High
Court: If the High Court has reversed
the acquittal and enhanced the
sentence in following cases:
1. Death
2. Transportation for life.
3. Imprisonment for life.
4. Enhancement of sentence.
2. Withdrawal of Cases: Where
High Court has withdrawn a case
from subordinate Court, convicted an
accused, and sentenced serious
punishment like death,
transportation for life, imprisonment
for life, or enchantment of sentence.
3. Contempt of High Court: Where
High Court has convicted a person on
the grounds of contempt of Court.
4. Value of subject matter: Where
value and subject matter is equal or
greater than Rs. 50,000/- or any other
amount which parliament specifies is
involved.
5. Certified appeal: Where High Court
certifies that case involves
substantial question of law as to the
interpretation of constitution.
Provisions of the Constitution have to
be interpreted to make it a living
document which may accommodate
past, satisfy the present, and serve to
the future.[1]
Appeal against the judgement of High
Court shall lie in Supreme Court, if
Supreme Court grants permission for
appeal.
Advisory jurisdiction: Where
President considers any matter of
public opinion may refer this question
to Supreme Court for obtaining its demoralization, perversion, evil,
decision. sinfulness) and false evidence.
Supreme Court is obliged to consider 7. Pakistan ideology: He must not
the question so raised and must be opponent of Pakistan Ideology and
submit reply to the President. worker against integrity of Pakistan,
Specific and precise question: The after its creation.
question, which is referred to Islamic qualifications are not
Supreme Court, must be specific and applicable on non-Muslims, but such
precise and Court may refuse to person must have good moral
answer a question if it is too general. reputation.
Qualification for membership of Disqualification for membership of
parliament: Membership of parliament: Member of Parliament
parliament is allowed subject to becomes disqualified on the following
certain conditions such as: conditions:
1. Pakistani: Candidature is 1. Person of unsound
subject to citizenship or mind: Court has declared him person
naturalization of Pakistan. of unsound mind.
2. Age: He must attain age upto 25 2. Insolvent: If his insolvency is
years for the membership of National continued.
Assembly, along-with enrollment as 3. Cessation of
voter in any electoral roll in Pakistan. citizenship: Cessation being
Age limit extends to 30 years for the Pakistani or acquisition of alien
election as senator and the citizenship disentitles from being
enrollment as a voter in the territory Member of Parliament.
from where he has to contest. 4. Service of Pakistan: Profit in
3. Islamic injunctions: He must be service of Pakistan debars him to act
the follower of Islamic injunctions as parliamentarian.
having good moral character and 5. Service in statutory body: If
commonly known as good Muslim. he is in service of statutory body
4. Practice of Islam: He must of Pakistan, it shall cease his
aware of Islamic teaching, practicing membership to exit.
Islamic obligatory duties, and abstain 6. Disqualified in Kashmir: Any
from major sins. Kashmiri can contest in Pakistan if he
5. Religious responsibilities: He is is not declared disqualified
sagacious (wise, intelligent, sharp, in Kashmir.
rational), righteous (fair, noble, 7. Anti Pakistan activities: Opp
honest, good, ethical, moral), non- osition of Pakistan ideology or acting
profligate, and honest and Ameen against integrity and sovereignty
(ÅοA). of Pakistan.
6. Non-convicted: He must not be 8. Election offence: If Chief
convicted against moral turpitude Election Commissioner convicts him.
(depravity, corruption,
9. Dismissal from service
of Pakistan: Till five years after
dismissal from service of Pakistan.
10. Removal or compulsorily
retirement: Till three years after
removal or compulsorily retirement
from the service of Pakistan.
11. Cessation of service
of Pakistan: Till two years after
cessation from service of Pakistan.
12. Guilty of corruption and illegal
practice: Till five years after he is
found guilty of corruption or illegal
practice.
13. Political conviction: Till five
years after conviction under Pakistan
Political Parties Act, 1962.
14. Contractual obligations
towards government: If he has any
contract to provide goods or supply
to government.
Principles of policy: Chapter 2 of the
constitution provides principles
against which every organ of state
including all relevant authorities are
liable and obliged to follow them in so
far as they relate to the functions of
the organs or authority.
Observance of principles shall be
subject to the availability of
resources. Government has to act
within the available resources.
President and governments of each
province shall prepare report on the
compliance/observance of principles
each year and discuss in their
respective assemblies.
Concerned organ and authority shall
determine the compliance of
principles. It provides the rule of self-
accountability. Organ or authority
responsible is also responsible of
accountability or determination
whether principles are complied
with.
This is responsibility of organ or
authority to follow these principles
but they are not accountable as for as
legal responsibility is concerned.
Courts are not competent to review
the due compliance or hear the case
against the non-compliance of
principles. Principles are not
questionable in any Court.
Articles 31 to 40 provide such
principles for which state is
responsible to observe in law making.
Freedom of movement: Under
Article 15, every citizen is free to
move and may remain in Pakistan.
Entry in Pakistan, movement,
residing, and settlement cannot be
restricted unless law demands it or
national interest.
Restriction are divided into three (3)
kinds:
(1) Restrictions with relation to
places, i.e., airport and defence
areas etc.
(2) Regulatory movement, i.e.,
restrictions by law, like you may drive
but on left side with license, on
reasonable speed etc.
(3) With relation to persons, i.e.,
police custody and prisoners etc.
Reasonable restrictions can be
imposed in public interest.
Preamble of the Constitution of
Pakistan 1973?
1.INTRODUCTION:
The preamble of the constitution is a
brief and well worded statement of
the principle which guided the
constitution makers. Preamble
means an introductory statement in a
constitution, statute or other
document, and it explains basis and
objective of such document. A
preamble often consists of a series of
clauses. Contrary to this preamble of
constitution of Pakistan consists of
objective resolution. It is not the part
of the constitutions as article. It is
merely a statement affined to statute
indicating the principles used as
guidelines by its framer.
2. MEANING OF PREAMBLE:
According to oxford dictionary of law:
“The part of a statue that sets outs its
purpose and effects”. According to
black law dictionary: “An
introductory in a constitution, statute
or other document explaining the
document’s basis and objective”.
According to Osborn's concise law
dictionary: The recitals set out in the
beginning of a statute showing the
reason for the act.
3. PURPOSE OF PREAMBLE:
The preamble of the constitution is
not justifiable as other parts of the
constitution. The preamble is written
in the constitution just to determine
the ideals and the objects for the
government to achieve. It helps in the
interpretation of the provisions of the
constitution when they are
ambiguous or resolve a dispute
between two conflicting provisions of
the constitution.
4. NATURE OF PREAMBLE:
Preamble is not legally enforceable. It
states principles and brief statement.
All the principles laid down in the
preamble find expression in the
enactment and provides guiding light
true appreciation and understanding
of document.
5. WHEN DID PREAMBLE OF
CONSTITUTION OF 1973 BECAME
ARTICLE 2-A:
Preamble of constitution of 1973 has
become article 2-A in 1985 through
President order.
6. SALIENT FEATURE OF PREAMBLE
OF CONSTITUTION OF 1973:
Following are the salient feature of
the preamble of the constitution of
1973:-
6.1 SOVEREIGNTY:
Main salient feature of preamble of
constitution of Pakistan is that it
presents an important principle that
sovereignty belongs to Allah alone.
However he has delegated it to state
of Pakistan through its people. But it
should be exercised within those
limits, which have been prescribed by
him. And it should be exercised as a
sacred trust.
6.2 DEMOCRATIC SYSTEM:
Pakistan is a democratic state. the
preamble declares that 'state shall
exercise its power and authority
through chosen representatives of
the people" and " where in the
principles of democracy, freedom,
equality, tolerance as enumerated by
Islam shall be fully observed. It is
representative form of the
democratic state.
6.3 INJUNCTIONS OF ISLAM:
The preamble declares that in the
Pakistan the Muslim shall be enabled
to order their lives in the individual
and collective spheres in accordance
with teachings and requirement of
Islam as set out in the Holy Quran and
Sunnah.
6.4 FEDERATION WITH
AUTONOMOUS UNITS:
The territories in Pakistan or those
which in accession with Pakistan and
such other territories as may
hereafter by included in or accede to
Pakistan shall form a federation. In
which the units will be autonomous
with such boundaries and limitations
on their powers and authority as may
be prescribed. It is clear that the
preamble upholds the principle of
federation and provincial autonomy
as the basis of the constitution.
6.5 SAFEGUARD INTEGRITY OF
PAKISTAN:
The territories consisting Pakistan
are integral to it. It says “the integrity
of the territories of the federation its
independence and all its rights
including its sovereign rights on land,
sea and air shall be safeguard.
6.6 GUARANTEE OF FUNDAMENTAL
RIGHTS:
The constitution of Islamic republic of
Pakistan provides the fundamental
rights to its citizen. The fundamental
rights guaranteed include: i. Equality
of status. ii. Equality of opportunity iii.
Equality before law. iv. Social,
economic and political justice etc.
6.7 PROTECTION OF MINORITIES
RIGHTS:
Preamble of constitution of Pakistan
has provided that adequate provision
should be made for minorities so that
they can freely profess and practice
their religions and develop their
cultures.
6.8 INDEPENDENCE OF JUDICIARY:
It also declares that the
independence of judiciary should be
fully secured.
6.9 FOR THE PROSPERITY AND
HAPPINESS OF THE PEOPLE OF
PAKISTAN AND THE WORLD:
So that the people of Pakistan may
propose and attain their rightful and
honored place amongst the nations of
the world and make their full
contribution towards international
peace and progress and happiness of
humanity.
7. CONCLUSION:
To conclude we can say that
preamble is an introductory clause in
the constitution. It is not a
substantive part of the constitution
because it does not enlarge or
control its words. But it has
constitutional significance as it
indicates the sources, the basis and
the contents of the constitution.
Federal Shariat Court, it’s
Jurisdiction and Powers
1. Introduction
Federal Shariat Court of Pakistan is a
court, which has Power to examine
and determine whether Laws of the
country according to Islamic
injunctions or not. It consists of eight
Muslim judges, and Chief Justice of
this court is from these eight Judges.
Chief Justice of this Court is
appointed by President of Pakistan
and other Judges of this court are
appointed by President of Pakistan
after consulting the Chief Justice of
this court.
2. Qualification
The Chief Justice shall be a person,
who is or has been or is qualified to be
a Judge of the Supreme Court or who
is or has been a Permanent Judge of
a high Court.
3. Tenure
Tenure of Chief Justice and other
Judges is for three years.
4. Resignation
The Chief Justice or judge may resign
from their office by his hand writing
application to the President of
Pakistan.
5. Jurisdiction of Federal Shariat
Court
Following points are important for
explanation of Jurisdiction of Federal
Shariat Court.
5.1 Jurisdiction about Un-Islamic
Laws
Federal Shariat Court possesses
Jurisdiction to examines whether any
law or Provision of Law is against to
injunctions of Islamic or not. Federal
Shariat Court can exercise such
Jurisdiction, either through its own
motion or on petition of a citizen of
Pakistan.
5.2 Jurisdiction to decide a Law as a
un-Islamic Law
Federal Shariat court possesses
Jurisdiction to decide that any law or
Provision of law is repugnant to
injunction of Islam.
5.3 Jurisdiction of Revision
Following point for jurisdiction of
Revision
5.3.1 Calling for and Examination of
Record of a Case
Federal Shariat Court can call for and
examine record of any case, which
has been decided by an criminal
court in relation to enforcement of
Hudood.
5.3.2 Suspension of Execution of any
Sentence
While calling for and examining
record of any case, which has been
decided by any criminal court in
relation to enforcement of Hudood,
Federal Shariat Court can suspend
execution of any sentence.
5.3.3 Enhancement of any Sentence
Federal Shariat Court can enhance
sentence in any case, Record of
which is called for.
5.3.4 Release of an accused
While calling for and examining
record of any case, which has been
decided by any Criminal Court in
relation to enforcement of Hudood.
Federal Shariat court can release an
accused on bail.
6. Power and Procedure of Federal
Shariat Court
Following point are important
6.1 Contempt of Court
Federal Shariat court has power to a
high court to punish its own
contempt.
6.2 Power of Review
Federal Shariat Court possesses
power to review any of its own
decisions or orders.
6.3 Framing of Rules
The Federal Shariat court can frame
the Rules for the conduct of its own
Proceeding.
6.4 Opinion of an Expert
The Federal Shariat can seek opinion
of an expert on Islamic law.
6.5 Attendance of any Person
Federal Shariat Court has power to
summon and enforce attendance of
any person.
6.6 Discovery and Production of any
Document
Federal Shariat Court possesses
power to production of documents.
6.7 Evidence on Affidavits
Federal Shariat court has power to
receive evidence on affidavits.
6.8 Issuing of Commissions
Federal Shariat Court possesses
Power to issue commission for
examination of documents.
6.9 No Court Fee
No court fee is payable in respect of
any petition or application, which is
made to Federal Shariat Court.
7. Conclusion
To conclude, it can be stated that no
court, tribunal, Supreme Court or
High Court can exercise power or
jurisdiction of Federal Shariat Court.
Even a proceeding or matter, which is
within power or jurisdiction of
Federal Shariat Court, cannot be
entertained by any other court,
tribunal, supreme Court or High
Court.