RIGHTS AND REVIEW UNTIL 1973

Building upon a colonial history in which the judiciary had in some ways exercised its review capacities aggressively, the 1956 Constitution extended the powers of judicial review by formalising rights guaran­tees and allowing for the invalidation of governmental actions where these rights were contravened.^[459] The structure of rights could readily be mapped onto those acquiring the status of universal human rights.

In a context of continuing political tumult in which judges saw themselves as co-managers rather than watchdogs of the budding state, the courts exercised extreme caution in the brief period of this Constitution’s existence, preferring to read rights-offending statutes so as to harmonise their provisions with the constitutional right at stake. They also chose the course of determining that not every listed right was universal or absolute.^[461] Even laws of the colonial era, in which an unequal justice was doled out to those once classified as criminal, tribes were upheld in such a climate.^[462] While steering clear of finding repugnancy and exercising invalidation, the courts nevertheless did start to elaborate principles by which the limitations clauses of rights state­ments could themselves be delimited.

Limitations are seemingly widest when not qualified by substantive criteria, and appear as ‘subject to law’ or ‘in accordance with law’. They are narrowed when only ‘reasonable restrictions’ are allowed, and nar­rower still when the grounds for such restriction are expressly provided.

In Achharyya^[463] the court grappled specifically with the question of whether rights made ‘subject to law’ can be taken away by validly enacted law. Chief Justice Muhammad Munir declared unequivocally that they could not, and that to allow the same would be to perpe­trate a ‘fraud on the citizens’. Laws that imposed limitations upon the right would be subject to review This case has also come to stand for the principle that rights can be unequally distributed amongst a diverse population but that the mode of classifying different classes and groups to mark this distribution itself has to meet a reasonability standard. While specifying that classifications on irrelevant criteria, those that are capricious and arbitrary, will be disallowed,^[464] the court accepts however that certain classifications are warranted.

In the year 1958, both the declaration of martial law as well as the Supreme Court’s judgment in Dosso^[465] resulted in the 1956 Constitution being abrogated. As a consequence, no fundamental right ‘nor any provision of the abrogated constitution could now be a source or basis for any legal right’.^[466] This was a prelude to the subsequent experience in which the 1962 Constitution sought initially to confine judicial review to entertaining writs on governmental action outside any enforcement of fundamental rights. However, again, that would change with the First Amendment to the 1962 Constitution, and in subsequent years further principles for review on the basis of fundamental rights would be defined.

The 1964 case of Abulala Maudoodi^[467] discusses some of the param­eters of review that were introduced to assess what might constitute ‘reasonable restriction’ on rights. The Ayub Khan government had enacted the Political Parties Act of 1962 in an attempt to augur a managed transition to a controlled democracy.

The Supreme Court in this case responded by specifying that a ‘rea­sonable restriction cannot amount to a complete denial or total prohi­bition of the right for all times to come or for an indefinite period’. Use of the word ‘restriction’ makes the extent of the encroachment a relevant factor in determining the reasonableness thereof. However, the court was deferential to executive powers broadly and was thereby unwilling to accept that the vesting of unfettered discretion in a single administrator would matter for purposes of reasonability or compromise the law-like quality of the restriction, where a right was made ‘subject to law’. Instead, Justice Cornelius states:

It is not difficult to conceive of situations where power must be vested in some authority to take immediate action to prevent acts fraught with imminent danger, even though such prevention encroaches upon the fun­damental rights guaranteed to citizens by the Constitution of the country.

A case that has less universal approval within the Pakistani courts is Shorish Kashmiri.¹ In a line of important detention cases that include both Dosso and Achharyya, the bench defined the protection of law as broad and incorporative, not only of statuary law but also judicial principles. Law is ‘comprehensive’ and ‘postulates a strict performance of all the functions and duties laid down by the law’. This was an early statement approving a due process standard for judicial review. However, altogether far more narrow views of what constitute law were already in the field as per Maudoodi, as noted above, and there would be an equal push in both directions within jurisprudence for some time.¹¹

II.