ENFORCEMENT AND SUSPENSION OF FUNDAMENTAL RIGHTS IN PAKISTAN: A CONSTITUTIONAL PERSPECTIVE

By :
MUHAMMAD NAWAZ DOGAR
Assistant Professor
University Law College Punjab University, Lahore.

CONCEPT AND HISTORICAL OVER VIEW OF FUNDAMENTAL RIGHTS

The term "Right" in civil society is defined to mean that which a person is entitled to have, to do, or to receive from others, within the limits prescribed by law1. In its legal sense a right is an interest which is created and enforced either by the Constitution or by ordinary law2. When a right is protected by a Constitution then it becomes a fundamental rights.3

Fundamental rights guaranteed in any Constitution are not capable of precise or permanent definition. The fundamental rights are to be construed in consonance with the changed conditions of the society and must be viewed and interpreted with the vision to the future.4

The concept of fundamental rights can be traced in the works of the Holy Prophets, sages, philosophers/ juristic from various parts of the world and religious faiths. Cyrus the great some 2000 years back recognized and protect the right to liberty and security, freedom of movement, right to property and even certain economic and political rights.5

The modern concept of fundamental rights has its roots in English, French and American Revolution of 17th and 18th century.6 In England the Magna Carta7 1215 was considered to be the first land mark document dealing with the rights of the citizens. Now the British parliament passed a statute (Human rights act 1998) for the protection and enforcement of human rights. Where as in France the French Declaration of Rights of Man and citizen 1789 is considered as a Constitutional document which secured the individual liberty and sacred rights of citizens. In US Constitution the first ten amendments are called Bill of Rights and 5th and 14th amendments which expressively protects the rights of the individuals. In the nut shell we can say that the English French and American Constitutions in their own way contributed towards the development of human rights.8 Whereas in Pakistan the fundamental rights are derived from the various Constitutional documents of the history. Now these are existing from Art. 9 to Art. 28 in 1973 Constitution.

ROLE OF COURTS FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS

The Constitution of the Islamic Republic of Pakistan is in impressive document in the regard that a separate chapter under Part-11 of the Constitution is guaranteed fundamental rights to every citizen of Pakistan.9 It is Constitutional duty of the superior Courts to protect and enforce the fundamental rights of the citizen against any arbitrary and illegal action on the part of the public and administrative functionaries of the Government. The Supreme Court of Pakistan in its verdict held that High Court must protect Fundamental Rights when they are encroached by any person or authority of the Government.10

The Constitution of Islamic Republic of Pakistan in its clear terms prohibits that no person shall be subjected to torture for the purpose of extracting evidence. These provisions which confer Fundamental Rights on a citizen whenever violated and complaint is made to a High Court about their violation, the Court must step in to investigate such facts under the discretionary jurisdiction conferred on it under Article 199 and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case.11

CONSTITUTIONAL PROVISIONS FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS IN PAKISTAN

The Constitution provides the machinery for the enforcement of fundamental rights against the public authorities contravening it i.e. to be enforced only against person acting in exercise of the powers given to them by the law namely the public officers. When a private individual violates any fundamental right, the aggrieved party has remedy under ordinary law.

Article 8 of the Constitution provides enforcement procedure according to which the fundamental law is paramount to other laws therefore, if there be a law, existing or in future, not in conformity with the Constitution, it must, in its application to a particular case yield to the superior law.12 It was observed in a case13 that law couldn't validate an order, which is contrary to the provision of the Constitution.

With regards to enforcement of fundamental rights, the Constitution has expressly provided two forums under Articles 18414 and 19915. Under the former Article the Supreme Court has jurisdiction and under the latter one the High Court has jurisdiction to decide the validity of any law unconstitutional. The Article 184(3) allows Supreme Court to interfere only if a question of public importance involving the enforcement of fundamental rights arises, and the Article 199(1)(c) gives powers to High Courts to issue orders and directions, where fundamental rights are involved and it may issue writs of prohibition, mandamus, ceriorari, habeas carpus and quo waranto, without using their technical names but the limits with in which this jurisdiction is to be exercised are in some respects narrower and in some wider. However, this special Constitutional jurisdiction conferred upon High Court which in simple term may be stated as,

(a) the jurisdiction is subject to Constitution

(b) is discretionary to High Court i.e. to exercise or refuse to exercise this jurisdiction,

(c) the person must be aggrieved person,

(d) the must show that;

. functioning is doing something which under law be cannot, or

. he is required by law to do something which he is wrongfully refusing to do, or

. that he has done something without lawful authority.

And in challenging an action, the validity of law under which it was taken may also be challenged. In each of these above cases the High Court may issue any one of the appropriate directions or orders e.g. injunction, prohibition mandamus etc. This jurisdiction of High Court to enforce fundamental rights being Constitutional cannot be taken away by the law, and where the law purports to take away, such jurisdiction it will to that extent be ineffective. So, nothing short of an amendment of the Constitution can take away this special jurisdiction of High Court.16

For enforcement of fundamental rights the person moving the Court must be an aggrieved person and other adequate remedy must not be there i.e. he has to satisfy the Court that other adequate remedy is not provided by law, then the Court takes the step for enforcement of fundamental right under Article 199(1)(C). The High Court may direct any public functioning to refrain from doing what he is not permitted by law to do. The direction so issued is in nature of writ of prohibition. But the person moving to Court cannot be permitted for such relief if any other adequate relief is available i.e. if any alternative remedies like suit, amendment of suit, an appeal or some other steps to be taken before specially constituted authority, i.e. election tribunal etc. are available then he is not entitled for any relief under this, because if there be any other remedy available under the terms of this article no order thereon can be issued, so the existence of another adequate remedy as a Constitutional bar to exercise this jurisdiction. Further, the person seeking relief for enforcement of fundamental right must satisfy the Court that he is an aggrieved person. The aggrieved person here is one, in prohibition whose right is threatened, in mandamus whose rights are denied and in certiorari whose rights are affected by a decision. Here it was further observed that a person alleging to be aggrieved has a personal interest in performance of legal duty which if not performed would result in loss of some personal advantages.17 And party who stands or losses or gains an advantages by observance or non-observance of law is an aggrieved party.18

In short we can say, if an action is not according to law then it is challenged under Article 4 and remedy is available in Article 199(1)(c) and if it is according to law and the law is in conflict with fundamental rights, then under Article 8 the law is challenged and Supreme Court under Article 184(3) is competent to try if the matter involved is of public importance and if otherwise then High Court is competent to try under Article 199(1)(c).

SUO MOTU POWERS OF THE SUPERIOR COURT IN CASES OF VIOLATION OF FUNDAMENTAL RIGHTS

The Constitution of Islamic Republic of Pakistan expressly granted powers to the superior Courts of the Pakistan to secure the life and liberties of the citizen from arbitrary and discriminatory actions. Supreme Court took suo motu notice under article 184(3) of the violation of human rights with regard to gang rapes.19 there is another case where the High Court took suo motu notice in which a news item appeared in the daily news Nawa-i-waqt according to which a minor girl lost her life as she fell in a uncovered man-hole. Tassadaq Jilani J. of the Lahore high Court took a suo motu notice. According to his lordship the negligence on the part of public functionaries is a matter of great concern and public anxiety. The public functionaries conceded their negligence in the open Court. The Court burdened the concerned authorities with
Rs. 100,00/- (rupees one lac only) to be paid to the grieved family.20

SUSPENSION, EXCLUSION AND EXCEPTIONS ETC. OF FUNDAMENTAL RIGHTS:

The Article 8(5) of the Constitution allows the suspension of fundamental right only by express provisions and not by implication and this express provision regarding the suspension of the rights must be provided in Constitution and no in other laws. So, the Article 233 is about the suspension of the fundamental rights, but what are conditions and circumstance for the suspension. These are based on the idea that fundamental rights have no real meaning if the state is in danger. The Article 233(1) provides about suspension of some rights in case of national emergency and these are right of movement, association, trade, speech and property protection and under Article 233(2), the remedies of the others are suspended i.e. the rights to move Court are suspended and not the rights itself. It means that apart from the rights under 233(1), the remaining fundamental rights remain in existence during proclamation of emergency but no remedy is available during such period in presence of an order under Article 233(2).

The right of an aggrieved person to move Court and the power of the Court to enforce that fundamental right can be suspended by an order passed by the President to that effect therefore, we can say that only a clog is there on application to move and on power of Court to grant any relief for enforcement of those fundamental rights which fall within purview of the order of the President under Article 233(2), in case when proclamation of emergency.

This is only when the rights are subsisting one and available then the right to move and power of the Court to grant a relief are suspended. The fundamental rights are there to exist permanently.21

In Article 237 indemnity is provided to the authority for the action taken during emergency regarding the suspension of fundamental rights. In other words we can say that the law in contravention of fundamental rights should be considered repealed when emergency. The fundamental rights 'which are removed during the period of emergency, and any law made during this period, to the extent of incompetence ceases to have effect and shall be deemed to have effect.22

RECENT SCENARIO

The President of Pakistan has promulgated the provisional Constitution order (PCO) No. 1 of 2007 on Nov 3, 2007 where he suspended the fundamental rights of the citizens under Articles 9, 10, 15, 16, 17, 19 and 25. Keeping in view the prevailing circumstances of the country. But later on December 16, 2007 the President issued an order to lift emergency, repealed the provisional Constitution order (PCO) and revived the 1973 Constitution with some amendments.23

CONCLUSION

Rights are those conditions of social life without which man cannot be at his best or give of his best what is needful to the adequate development and expression of his personality. In recent history, England, United States and France have played an important role in the development of fundamental rights and civil liberties. In Britain, the Magna Carta of 1215 was primarily the result of the efforts of nobles to stop encroachment by the king. In USA, the Bill of Rights and 5th and 14th amendments protect the rights of the citizens but despites all the facts Islam is the pioneer in the history of mankind in granting human rights and civil liberties some fourteen centuries ago, which had not been hither-to heard of. Islamic concept of human rights is essentially based on the idea of human dignity and equality of mankind. According to Islam, Almighty Allah has given to humankind dignity and honour over all of His creation. As far as Pakistan Constitution is concerned fundamental rights are neither indefeasible nor permanent, for their operation may be suspended after a Proclamation of Emergency under Part X.24 The effect of a Proclamation is to be judged from the term in which it is promulgated. If any of the fundamental rights is not included in the Notifications, that right is not affected or if what is suspended is merely the right to have recourse to Courts, the fundamental rights exist; only the remedy on their basis is barred.25

In the last I feel no hesitation to claim that uptill now we have never been able to allow our people to enjoy their fundamental rights in the true sense as guaranteed by our Constitution. It is obligatory for "Constitutional authorities" to implement the fundamental rights in their true letter and spirit as annunciated by the Constitution so that a balance can be created between the state and its instruments for the smooth functioning and prosperity of the country, the sooner the better it would be.

References

1. 16 C.J.S, Constitutional Law, Art. 199 at p. 974.

2. The Constitution of the Islamic Republic of Pakistan, by Justice Munir, Abridged Edition, Page 78.

3. Authors own view.

4. M. Nawaz Sharif Vs President of Pakistan PLD 1993, Supreme Court, Page 473.

5. Visit the web site http/www.google.com. Conceptual Foundations of Human Rights.

6. Ibid.

7. Magna Carta was a compromise on the distribution of power between King John and his nobles. However, the language used later on assumed a wider significance because it guaranteed to the citizen's freedom from imprisonment, right to fair trial, freedom from exile and prosecution etc. Its importance can be judged from the fact that it was confirmed and re-issued by the later sovereign's in succeeding centuries.

8. See generally All rights are by nature inherent, universal and inalienable and can be protected within a democratic framework. Davidson Scott. P5.

9. See generally Section-Ill Pakistan's Response to Human Rights at National and International Level.

10. Government of Sindh V. Raeesa Farooq, 1994 SCMR 1283.

11. Ibid.

12. P.L.D. 1965 Dacca 156 (Ghulam Zaman's case).

13. See article 8 (1) of 1973 Constitution of Islamic Republic of Pakistan.

14. See Article 184(3).

15. See Article 199 (1)(c).

16. P.L.D 1972 S.C 139 (Asima Jilani's case).

17. P.L.D 1975 Lah.7 (Irshad Ali Vs Pakistan).

18. P.L.D 1968 Lah.1155 (M. Ashraf Vs Board of Revenue).

19. Human Rights Cases: In the matter of 1993 SCMR 2001.

20. State Vs. M.D.WASA etc. PLJ 1999 Lahore 1704.

21. Habiba Jilani Vs. Federation of Pakistan PLD 1974 Lah. 153.

22. P.L.D 1978 Lah.1298 (Gulzar Hussain's case).

23. Revocation of Proclamation of Emergency Order, 2007; http://www.brecorder.com.

24. The Constitution of the Islamic Republic of Pakistan, by Justice Munir, Abridged Edition, Page 80.

25. Habiba Jilani Vs. Federation of Pakistan PLD 1974 Lah. 153