THE STRUCTURE OF FUNDAMENTAL RIGHTS IN THE 1973 CONSTITUTION
Ambivalence towards the enshrinement of fundamental rights affected the draft of the 1973 Constitution and this is apparent both in the limitations defined for these rights as well the structure and content of the Preamble.
While much of the language of the Preamble carried over the content of the Objectives Resolution, a three-way ideological battle with unlikely alliances drawn across seemingly incommensurate positions also influenced drafting. As described elsewhere, the National Awami Party (NAP) situated itself further to the left of the ideological spectrum from where Bhutto drew his populist support. The NAP, in its alliance with the Jamat-e-Ulema-e-Islam (JUI) repeatedly toned down its demands, most remarkably so by ceding that secularism need not be amongst the guiding principles stated in the Preamble. Bhutto, [468] [469] in the midst of his heightened rift with the NAP/JUI, and having marginalised much of his own left party cadre, was also thus willing to trade in specific mention of the programme of Islamic socialism and placate the centrist non-ideological base of his main allies in this parliament.[470]Shortly after East Pakistan was lost and the project of Muslim nationalism seemingly damaged, the notion of secular power being in sovereign trust for Allah, reflecting thereby a unitariness of state power over society, was the overwhelming sentiment of the Preamble. In it, the first mention of rights is halfway down in an unnumbered clause. The specific clause provides a guarantee of fundamental rights inclusive of ‘equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association’. The statement also provides that they will be ‘subject to law and morality’. Significantly, the enumerations of these rights, which are included in the Second Chapter of the Constitution, are even in the Preamble qualified by limitations and their possible circumscription.
Part II of the Constitution, following the Preamble and Introductory clauses, is entitled Fundamental Rights and Principles of Policy. Chapter I of Part II comprises Articles 8—28, and each of these Articles recognises a liberty, immunity or capacity as fundamental and protected for either all persons or for citizens of Pakistan. Chapter II, Articles 29—40, provides the Principles of Policy, the aspirational goals meant to guide legislators in the act of creating law and policy, considered non-justiciable in the strict sense.
Analogous to a provision of the 1956 Constitution, Article 8(1) reads ‘Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.’ Article 8(2) further provides that the ‘State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.’ It also defines wholesale exemptions where a law governs ‘members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them.’ Additionally, laws contained within Schedule I to the Constitution are immunised against being held to the standard of rights abidance.[471]
Article 8 of the 1973 Constitution heralded at least the possibility of refounding a thorough review of laws to accord with fundamental rights when they were enacted. Furthermore, the prospect of such a review was bolstered by way of Articles 184 and 199, which provide the High and Supreme Courts with extensive powers to try cases related to fundamental rights. Under Article 199, the High Courts could offer traditional remedies associated with the prerogative writs and also the power to give an(y) order to any person for the enforcement of any of the fundamental rights upon the petition of an ‘aggrieved person’.
The Supreme Court was conferred an additional jurisdiction under Article 184(3) to take up any matter of ‘public importance’ pertaining to the enforcement of fundamental rights and grant a suitably- fashioned remedy. These are quite expansive powers but remained mostly unpracticed until an Indian-inspired programme of fostering public interest litigation started to impact superior courts’ judges in Pakistan in the 1990s.[472] It was in this context that Article 9, which reads ‘No person shall be deprived of life or liberty save in accordance with laW (emphasis added), has become a vehicle for the judicial conferral of specific entitlements, such as to a safe environment, education, access to utilities, all as subsidiary features of this right.To accord with the rights of liberty are a set of rights and safeguards for fair arrest and trial, which are often read in conjunction with Article 9. Article 10 ‘Safeguards as to arrest and detention’, is discussed in the greatest detail below in a case study of preventive detention practices from Partition onwards. Article 10A, introduced in 2010, the ‘Right to fair trial’ provides for due process guarantees in criminal trials; Article 12 provides protection against retrospective punishment; Article 13 provides protection against double punishment and self-incrimination. Finally, Article 14, which safeguards the ‘Dignity of man’ and ‘subject to law, privacy of home’ also provides in Article 14(2) a prohibition against torture ‘for the purposes of extracting evidence’. This body of rights is protected against suspension during emergencies.[473]
A further array of traditional civil and political rights appear together in Articles 15—19 as freedom of movement, assembly, association, speech and the right to information. Each of these is conditioned by an enumeration of conditions for the imposition of reasonable restrictions. For instance, freedom of movement is subject to ‘any reasonable restriction imposed by law and in the public interest’.
For the right of association such reasonable restrictions may be ‘in the interest of sovereignty or integrity of Pakistan, public order or morality’. The list of restrictive conditions applicable to the exercise of speech has grown to include, in addition to those listed above, ‘the glory of Islam, friendly relations with foreign states, decency, contempt of court’,[474] commission or incitement to an offence.The hard distinction between civil and political on the one hand, and on the other, economic and social, is effaced somewhat by the inclusion of Articles 22 and 27, which bar discrimination in state or state-funded education and employment. The material redistributive aspect of this can be located in the possibilities opened up for quotas and other preferential treatment on the grounds of regional origin, sex etc. The complementary Principles of Policy address matters such as increasing the participation of women in national life (Article 34); protection of minorities (Article 36); the promotion of social justice, the eradication of social evils (Article 37) and the furtherance of the economic wellbeing of the people (Article 38). These principles have often been read in conjunction with Articles 22 and 27 and in public interest cases to introduce conditions for the realisation of rights.
Provisions within the fundamental rights chapter which bespeak the rejection of official secularism include the circumspect Article 20, ‘Freedom to profess religion and manage religious institutions,’ which provides every citizen the right to ‘profess, practice and propagate
The Structure of Fundamental Rights in the 1973 Constitution 191 his religion’[475] and for religious communities to establish, maintain and manage their institutions. The right is not a broad ‘freedom of religious conscience’ provision. In line with the prevailing view amongst Islamic states in which a bar on apostasy was enforced, the international instrument’s insistence that people be able to freely convert out of their religions was not considered appropriate for incorporation and thus this right is a lesser one than is advocated for in such instruments.[476] Additionally, and perhaps only of historical interest, is how far Article 11 bears the imprint of the interventions of the Ulema in the constituent Assembly debates from 1973.
After much debate, the prohibition on slavery and forced labour was written into the Constitution in the declaratory language of ‘slavery is non-existent and forbidden’ so as not to attract the cover of Islamic legal precepts that regulate slave holding and manumission where it does exist.[477]Property protections as per Articles 23 and 24 include both the private right to hold and acquire property as well as the right to be compensated in cases of state acquisition of private property. This latter provision was resisted by the NAP in particular, which would have preferred that property be capable of expropriation without guarantees of compensation.[478] Its own marginal position without the support of the JUI led to the toning down of this initial stance and thus a justiciable property right has existed alongside the now more expansive reading of a fundamental Islamic right to property as per a Federal Shariat Court reading of 1993.[479]
Altogether then, while the ambit of rights and perhaps the conceptual lineaments of their form were in many ways the bequest of more globalised movements, the manner of their elaboration within local environment has been a markedly local and political affair.
III.