Lecture 2

Part II, Fundamental rights and

Principles of Policy [the most
important lecture for students]
 chapter one is fundamental rights

• -A8(1), law inconsistent with or in derogation of fundamental

rights and any such law made will be void.
[who will check/interpret? supremacy of judiciary?]
• -A8(2), state cannot take away rights and any such law made
will be void.
• -A8(3a), laws among armed forces, police are exceptions
because they maintain public order (they do not have many
rights like union etc.) [expanding essential services ordinance?]
• -A8(3b), exception to this clause are laws in the first schedule
[most of laws in first schedule are about property]
• -A8(5), these rights cannot be suspended
 security of person,A9-10
• A9, security of person, this is life and liberty
• -A10, safeguards to arrest and detention, one should be informed about arrest, grounds, should
be given the right to consult and defence by a legal practitioner.
• -A10(2), one should be produced before a magistrate within 24 hours
• -A10(3), preventive detention is different
• -A10(4), preventive detention for those working against integrity and security of Pakistan, public
order.
• -preventive detention for 3 months, otherwise review board will extend.
• -review board is explanation i and ii. [all this is during Bhutto regime]
• -A10(5), authorities will disclose reasons of preventive detention within 15days but can refuse if
there is public interest involved.
• -A10(6), authority will give documents to review board
• -A10(8),RB will determine place of detention and reasonable subsistence allowance for his family
• -A10(9), nothing in this article shall apply to any person who for the time being is an enemy alien.
• -A10A, right to fair trial [18th amendment]
 Rights…cont…
• A11, slavery, forced labour etc prohibited
• -A11(1), slavery prohibited
• - A11(2), forced labour prohibited
• - A11(3), child labour prohibited [under 14 years]
• - A11(4), exceptions are labor undergoing punishment of offence,
compulsory service for public purpose, but there should not be compulsory
labor of cruel nature or incompatible with human dignity.
• -A12, protection against retrospective punishment-- any new law and its
punishment is not applicable to any act or omission done before this new
law
• -A13, protection against double punishment and self incrimination
• -A13(a), one cannot be punished more than once for the same offence
• -A13(b), one cannot be compelled to be a witness against himself
 Rights..cont…
• A14, inviolability of man etc, dignity and privacy of home
• - A15, freedom of movement
• -A16, freedom of assembly, it should be without arms and not against public order
• -A17(1), freedom of association or union but not against the sovereignty, morality,
public order
• -A17(2), one can be a member of a political party but not in the service of Pakistan
[but not against the sovereignty, morality, public order]
• -A17(3), parties to account for the source of funds
• -A18, freedom of trade, business or profession but government can do lisencing
system, regulation of trade, commerce, or industry for free competition
• -A19, freedom of speech, freedom of press (again same restrictions)
• -A19, right to information (18th amendment)
• -A20, freedom to profess religion and to manage religious institutions (subject to
law, public order and morality)
 Rights..cont..
• -A21, safeguards against taxation for the purpose of any
particular religion- one is bound to pay tax to his/her own
religion and not otherwise
• - A22(1), no one is bound to participate in any other religion
• - A22(2), no discrimination and concession of taxation w.r.t.
religion
• - A22(3), if any institution is running out of public revenue,
no one can be refused admission
• - A22(4), but there can be exceptions and exemptions for
socially or educationally backward classes.
 Rights..cont..
• -A23, provisions as to property, to acquire, hold, and dispose of—except public interest
• -A24, protection of property rights, one is compulsorily deprived [A23 is right to property
and A24 is protection of property]
• -A24(2), if deprived should be compensated
• -A25, equality before law, equal protection of law
• -A25(2), no discrimination on the basis of sex (“alone” is omitted by 18th amendment)
• -A225(3), special provisions to protect women and children are not challenged under this
article.
• -A25A, right to education [18th amendment]
• -A26, non discrimination in respect of access to public places
• -A27, safeguards against discrimination in service on the grounds of race, religion, caste,
sex, residence, or place of birth (exceptions are for any class or area for representation like
SindH)
• -A28, preservation of language, script and culture
• What about Punjabi language in Punjab?
 Article 8—laws inconsistent with or in derogation of fundamental rights

• -Supremacy of the Constitution as Supremacy of the Judiciary

• -In the 1970s, the judiciary had an explicit stance that it was not above
the constitution and could not strike down any provisions of the
constitution, even if a particular provision ousted the jurisprudence of
the Court. [State v Zia-ur-Rahman, 1973 PLD S. C. 49]
• -Until 1988, Pakistani courts were reluctant to assume the functions of
the legislature and always interpreted under well-settled canons of
construction.
• [S. M. Haider (1988) claimed this on the basis of observation of Justice
S. M Murshed Chief Justice East Pakistan High Court in Abdus Sattar v.
Arag Ltd. and others, 1964 PLD, Dacca 773. See S. M. Haider, “American
Constitution and Assimilation of Modern Legal Norms in Pakistan”
(1988) XL PLD 121-131]
 Asma Jilani case
• LHC challenged the detention of Malik Ghulam
Jilani under Courts (Romoval of Doubts)
Ordiannce, 1969
• Similar writ petition in LHC
• SC gave a decision challenging Kelson’s theory
and doctrine of necessity
 Zia-ur-Rahman case
• Yahya’s Martial Law
• 1971, Bhutto’s civil martial law
• April 1972, Bhutto lifted martial and gave Interim
Constitution of
• Arrests detentions challenged in LHC
• LHC used Objective Resolution
• Legislators were annoyed
• Courts had to step back and accepted that they are
not superior
 new constitutional construction

• From the mid-1990s,the new constitutional

construction was done through three areas:
• 1-constitutional litigation,
• 2-alternate rulings that have social consequences,
and
• 3-through rulings regarding how to balance
opposing societal interests or values.
• [A G Chaudhry, “Half- Hundred Canons of
Constitutional Construction” (1994) PLJ 74 at 75.]
progressive approach of constitutional construction---

• Journey of progressive approach

from Munir to Haleem CJs
• 1-Munir Chief Justice Federal Court in Jibendra Kishore v. East
Pakistan, 1957 PLD 1957 Supreme Court 942
• Cornelius Chief Justice Supreme Court in Abdul Aala Mounddodi
v.Govt of West Pakistan 1964 PLD S. C. 673
• Chief Justice Haleem in Benazir Bhuttoo v Federation of Pakistan
1988 PLD S. C. 416 to Benazir Bhutto v. Federation of Pakistan PLD
1989 Supreme Court 66.
• Nasim CJ made a clear statement in favour of progressive approach
in Muhammad Nawaz Sharif v. Federation of Pakistan PLJ 1993, 473.
• [all this was over and above an already undermined legislature]
 Official advocacy of PIL and Nature of Rights

• The origin of Rights in Chapter 1 of Part II of the Constitution of

1973 of Pakistan
• 1- the Bill of Rights of the U.S. Constitution,
• 2-the 1789 Declaration of Rights of Man and Citizen of the French
Revolution,
• 3- the Irish Constitution of 1935 and
• 4- the Universal Declaration of Human Rights of 1948.
• Philosophies
• Locke, Rousseau, the theory of natural law and English Common
Law, and the economic theory of individualism that is, Laissez Faire.[
A. G. Chaudhary, “Definition of the State” (1994) PLJ, Magazine
Section, 232 at 232]
 Sources of PIL
• 1-US civil liberties movement
[Khan claimed that roots of Public Interest Litigation can be found
in the U.S. system [Mansoor Hassan Khan, “The Concept of
Public Interest Litigation and its Meaning in Pakistan” (1992)
PLD, Journal, 84-95; also Mansoor Hassan Khan, Public Interest
Litigation: Growth of the Concept and its Meaning in Pakistan
(Karach: Pakistan Law House, 1993).] 
2-
South Asian phenomenon
Menski, on the other hand, claim its origin as purely South Asian.
-

[Werner Menski, “Introductory Over View of Public Interest

Litigation in Pakistan: Past and future” in Menski et al.eds.]
 My position
• My position is that in Pakistan, Public Interest
Litigation developed very strongly within the
ambit of western legal discourse of rights and
constitutionalism. A poor grafting of Islam on
Western ideals was done in the late 1980s.
 PIL and rights

• -Debate in Pakistan
• 1-Asif Saeed Khan Khosa objected to the relaxation of locus standi and the suo
moto exercise of power by the High Court and found it ultra vires of the law and
in violation of the Constitution.
• -He advised the courts to follow the Common Law notion of judicial neutrality,
impartiality and adversarial nature and not to play an activist role or that of a
social reformer.
• 2-Dr. Faqir Hussain, Joint Secretary of the Pakistan Law Commission
• supported the “liberalized standing” of the superior courts to hear the case ofany
person or citizen as an aggrieved person who claims to come on behalf of poor
persons.
• He elaborated at length on the “genesis and evolution” of the law so to enable
the jurists to meet the challenges of “modern time” and to benefit from the “rule
of law.” [Dr. Faqir Hussain, “Access to Justice” (1993) 1994 PLD Journal at 10-23]
 Gender, rights and Courts –debate

• Gender and Public Interest Litigation

• The most highlighted contribution of the judiciary was its
protection of the right to property for women.
• 1-In the Ghulam Ali case, PLD 1990 Supreme Court 1, the
court clearly stood for female’s (daughter’s) rights in
inheritance even if the legislature was lagging.
• 2- in the Kalsoom Bibi case, 2005 SCMR 135, the court took
notice of deprivation of females from property in the form of
gift and relaxed the rule of the burden of proof on the
respondent beneficiary.
• 3-See also the Muhammad Ashraf case 1989 SCMR 1390.]
 constitution and women rights
• The constitution of Pakistan gives ample opportunities
for women’s rights
• The Constitution -three sets of provisions related to
rights.
• First, background provisions (2A, 3, and 4) which are
preamble of the Constitution.
• Second, the provisions relating to fundamental rights
(Article 8, 9, 14, 23, 24, 25 etc)
• third set of provisions are principles of policy (Article
33, 35, 37 (a), 37e, etc)
 Judiciary and women

• Gender bias in Subordinate and superior judiciaries

• they could not surpass their various prejudices.

“judges are ready to believe the worst about women”

• 1- sending the women back to their homes from where they ran away from
forced marriages (judges are supporting male aggressors)
• 2-by and also lowering the threshold of provocation (which is a defense in a
murder case) in honour killings and in punishing the rapists.
• -example: Afzal Zullah
Unfortunately, the pioneer of PIL, Afzal Zullah Supreme Court Chief Justice
(January 1, 1990 to April 18, 1993) was in favour of the reduction of sentences
on the question of family honour-[Nasira Javed Iqbal JLHC (ret., as she then was),
Judiciary and Gender Bias, A paper read at the International Jurists conference,
Islamabad, 2006, ]
 liberation of women and ‘enlightened’ scholars

• The liberation of women always comes with a proviso

among the most enlightened jurists.
• While talking about how male-dominated thinking is
suppressing women, in the very next sentence, a jurist can
jump to a proviso, such as this “does not mean that there
should be a license to obscenity or that women should be
let completely loose and encouraged to become paranoid
about their rights, independence and feminism.” [Dr.
Muhammad FaroghNaseem, “Constitutional Guarantees
for the Rights of Women and their Implementation”
(1998) PLJ 1998, Journal, 31 at 35]
 Retired Justice of Lahore High Court,
Fukhrunisa Khokhar claimed

• -The problem exists at every level of the judicial structure.

• -Female judges are not given proper courtrooms, residential facilities,
medical facilities or promotions by the male-dominated judiciary.
• -only 6% women in the subordinate judiciary and there is no female
judge in the Supreme Court.
• -In 1994 (while Benazir Bhutto was Prime Minister), five female judges
were appointed but none of them was allowed to work as Chief
Justices of High Courts, though two of them could easily be considered
for Lahore High Court and Peshawar High Court of North Western
Province-NWFP. Both were superseded and were allowed to retire
without elevating to Supreme Court.
 women’s emancipation in Public Interest Litigation.

• Suffice it to say that, in Pakistan, 80% of rapes are never

reported and only the most resilient and resourceful go
for First Information Report-FIR.
• Secondly, the following factors reduces the relief further:
• 1)Gender bias in judiciary itself
• 2) What percentagereaches the higher judiciary
• 3)What percentage of cases the courttakes notice of
• 4) What percentageit can implement the decisions
• 5)To what extent legal relief is relief when social,
economic and political relief arenot available,
 women’s emancipation in Public Interest
Litigation..cont..
• 6) Even in those cases which were reported and persuaded on behalf of weak
and
• very poor, the actual motivators have beenNGOs for the last two decades.
The media also claims credit as in Mukhtaran Mai case. So one is compelled
to conclude that activism and political struggle are the saviors, not the
judiciary.
• 7)Even when these activist groups gofor relief to these judges, it is a minor
partof their own work.
• Like the famous Mukhtran Mai case.
• NajamSethi, Role of Media in Dispensation of Justice. A paper read at the
International Jurists conference, Islamabad, 2006, supra note 1. He was the
Editor-in-Chief, Daily Times and the Friday Times, Pakistan.
• [what to do for women’s liberation?....legal, political or social struggle …OR
all at the same time?]