FUNDAMENTAL RIGHTS

AND PRINCIPLES OF
POLICY
 Definition of the State and law inconsistent with or in
derogation of fundamental rights to be void

• Federal Government, Majlis-e-Shoora, a Provincial Government, a

Provincial Assembly, and such local or other authorities in Pakistan
as are by law empowered to impose any tax or cess.

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• Court cannot and should not base its decision on expediency or on
consideration of the consequences which may follow as a result of
enforcing the Constitution. Court cannot base its judgments on the
anticipated consequences of its decision, else court will be reverting
to the malignant doctrine of necessity which has already been
buried because of valiant struggle of the people of Pakistan.

• Political stability and the rule of law will flow as a natural

consequence of giving sanctity and respect to the Constitution,
both in letter and in sprit. Court can only strengthen the rule of law
by upholding the Constitution, which is, in fact, the supreme law.
(PLD 2012 SC 466)
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• A right is an interest recognized and protected by law.
Fundamental rights are those natural rights which are personal to
the individual as a citizen of a free and civilized community and
belong alike to every man, woman and child.
• The essential characteristic of fundamental rights is that they
impose limitations, express or implied, on public authorities
interfering with their exercise. (PLD 1969 SC 387)

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• Under no circumstances any right, be it fundamental and expressed
in the Constitution ever be declared as absolute. No one could be
allowed to exercise one’s right so as to infringe upon the rights of
another.
• Each was to enjoy his rights within the confines of the law, morality
and social justice. Transgression by any person whether powerful or
weak could not be allowed so as to disturb the social harmony of
society. PLD 2014 Pesh 199

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Significance/ • Fundamental Rights for Pakistanis are
Characteristic aimed at overturning the inequities of
past social practices

• Guarantee that all citizens can and will

lead their lives in peace as long as they
live in Pakistan

• Essential for development

• Democracy gave rise to various freedoms

in the form of Fundamental Rights

• Helps prevention of gross violation of

Human Rights 6
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FUNDAMENTAL RIGHT

Fundamental Rights and Principles of Policy are incorporated from

Article 08 to 40 in the First Chapter of the 1973 Constitution Rights are
the basic facilites which we need for our growth. These are the claims of
individual recognised by the society and enforced by the State. The
existence of Democracy can’t be imagined without Fundamental Rights
in Pakistan because Rights are the pillars of Democracy
Nature of • These rights are all interrelated,
interdependent and indivisible.
Rights • Fundamental right are equal for all
• Fundamental rights distinguish
between citizens and foreign nationals
• Parliament can amend Fundamental
rights
• They can be suspended during
emergency

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CONSTITUTION OF ISLAMIC
REPUBLIC OF PAKISTAN 1973

• The 1973 Constitution of Islamic Republic of Pakistan 1973 contains

Fundamental Rights and Principles of Policies which give basic rights to
citizens
• Some of the Articles pertaining to Human Dignity & Respect given in
Constitution of Pakistan are as follows:-
• Security of persons: (Art.9)
• No person shall be deprived of life or liberty save in accordance with law
• Life includes all such amenities and facilities which a person born in a free country is
entitled to enjoy with dignity, legally and constitutionally. PLD 2012 S.C 292
• The word “life” in a Constitution has not been used in a limited manner, a wide meaning
should be given to enable a man not only to sustain life but to enjoy it. PLD 2005 SC 1
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193
 • The petitioners contested the
Ms. construction of a high-power electric
grid station in their neighbourhood by

Shehla WAPDA on the basis of the potential

health risk and hazards of an

Zia v electromagnetic field to which the locals

WAPDA
(Supreme Court of Pakistan, Ms. Shehla
Zia and others v WAPDA,PLD1994
Supreme Court 93,p. 18.)
would be exposed. The Supreme Court
held that the right to health is to be
considered essential for the right to life
and ruled for the preparation of a report
by the consent of both parties to evaluate
the effects of such grid station on the
health of the residents. The court also
ordered WAPDA to initiate public
consultation and objection procedures
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regarding all such projects. 1
THE OBLIGATION OF STATE

State must protect an individual’s rights from violations by third parties.

Effective framework, laws, regulations, enforcement mechanisms.
Example: The Right to Health
-Regulating third party activities associated with the right to health e.g.
medical equipment and medicine, the educational and professional
standard of medical practitioners, etc.
  State must fulfil an individual’s
The rights either by direct provision or
facilitation.
Obligatio  Depending on the right/source of
n to Fulfil rights, this may involve taking
appropriate administrative, judicial,
legislative and financial measures for
realization of the rights.
 Example: The Right to Health
- Necessary
measures regarding policy,
infrastructure, training, accessibility.
-
Ms. Shehla Zia v WAPDA
 The  Ms. Shehla Zia v WAPDA
 The order of the Supreme Court of
Obligatio Pakistan in Ms. Shehla Zia v

n to Fulfil WAPDA, reflects that the state had

an obligation to fulfil the right to
health by initiation of public
consultation and objection
procedures in potentially
hazardous or harmful projects.
1
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 Constitution of Islamic Republic of Pakistan
1973
• Safeguards as to arrest and detention:(Art 10)
• No person who is arrested shall be detained in custody without being informed, of the
grounds for such arrest
• Nor shall he be denied the right to consult and be defended by a legal practitioner of his
choice

• Miranda Rights
• You have the right to remain silent. Anything you say can and will be used against you in
a court of law. You have the right to an attorney. If you cannot afford an attorney, one
will be provided for you. Do you understand the rights I have just read to you? With these
rights in mind, do you wish to speak to me?”
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Constitution of Islamic Republic of Pakistan
1973
• Right to fair trial (10A): for the determination of his civil rights and
obligations or in any criminal charge against him a person shall be entitle
to a fair trial and due process.
– “Delay” in the conclusion of a criminal trial is antithetic to the very concept of a “fair
trial” and “due process” guaranteed by Article 10A of the Constitution. The right to a fair
trial is a cardinal requirement of the rule of law. If an accused cannot be tried fairly for an
offence, he should not be tried for it at all.Court observed in Chairman NAB thr P.G,
Accountability (In all cases)V. Nasar Ullah (in CP-1809/2020)

• Slavery, forced labor, etc., prohibited:(Art.11)

• Slavery is forbidden and no law shall permit or facilitate its introduction
into Pakistan in any form.
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 Art 12 • No law shall authorize the punishment
of a person—

Retrospec • (a) for an act or omission that was not

punishable by law at the time of the act
tive Effect or omission; or
• (b) for an offence by a penalty greater
than, or of a kind different from, the
penalty prescribed by law for that
offence at the time the offence was
committed.

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 Cont.
• The protection given by Art 12 may avail against those offences which are
offences at the time when they are sought to be punished but were not
offences at the time when they are done.

• The purpose and intent of the constitution framers behind framing this concept
is to avoid harassment which shall be caused due to the successive criminal
proceedings for the one and same crime.

• It means that there are two facets for the protection against double jeopardy.
Firstly, it will not punish the person who has been previously convicted in
respect of the same offence and secondly, it will not inquire into the person
who has been acquitted on a same charge on which he is being prosecuted. The
Constitution bars double punishment for the same offence. 1
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Art 12 • Exceptions includes,
• Art 6,
• “of having committed an act of
abrogation or subversion of a
constitution in force in Pakistan at any
time since the twenty-third day of
March, 1956;”
• NAB Ordinance 1999;
• “This Ordinance shall come into force at
once and shall be deemed to have come
into force from the 1st day of January
1985.”

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 KHAN • The repayment of loan is a matter of
civil nature and by the promulgation of
ASFANDYA the Ordinance such default had been
converted into an offence under section
R WALI 5 of the said Ordinance.
versus • The petitioners argued that the

FEDERATI conversion of such default into an

offence of willful default retrospectively
ON OF was against fundamental rights
envisaged under Articles 12 and 18 of
PAKISTAN the Constitution.

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 Cont.
• Disagreeing with the petitioners, the court responded that the
offence of willful default committed by the accused was in the
nature of a continuing breach, hence, the cause of action had been
recurring. As far as the plea taken by the petitioners was
concerned, whereby entering into a contractual obligation before
the promulgation of the impugned Ordinance could not be
converted into an offence, the plea was rejected by the court on the
grounds that extraordinary circumstances had been prevailing in
the country.

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Cont. • The court relied on the Syed Zafar Ali
Shah case (PLD 2000 SC 869) wherein
the court had allowed the Chief
Executive to take all steps necessary to
accomplish the objectives referred in his
speech and bring back looted money
which had also been one of the main
objectives declared in his speech dated
October 17, 1999. PLD 2001 SC 607.

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3
 Rana • Any amendment in the procedural law
would always apply retrospectively.

Abdul Procedural law would always operate

retrospectively, unless contrary

Ghaffar intention was expressed.

• Where a person has committed an
V/S Abdul offence before the commencement of
this Act which if committed after the
Shakoor date on which this Act comes into force
would constitute a terrorist act there
under he shall be tried under this Act
but shall be liable to punishment as
authorized by law at the time the
offence was committed. PLD 2006
Lahore 64. 2
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Art 13 • No person—
• (a) shall be prosecuted or punished for
the same offence more than once; or

• (b) shall, when accused of an offence, be

compelled to be a witness against
himself.

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 Sentence:
• This modern law is derived from the doctrines
of autrefois acquit and autrefois convict (a
person cannot be tried for the same offence

either again if previously he has been either

convicted or acquitted) continued as part of
the common law at the time of the Norman
Acquittal Conquest. These doctrines are regarded as
necessary element to the protection of liberty

or of the accused and to abide by the due process

of law that what has been decided should be
held final.
conviction • The Hon'ble Supreme Court of Pakistan has
interpreted this rule by observing in case Syed
Alamdar Hussain Shah v. Abdul Baseer
Qureshi & two others . It was held that where
the prosecution finally concluded ended either
in acquittal or conviction that a fresh
prosecution for the same would be barred. PLJ
1978 Supreme Court 221.
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Constitution of Islamic Republic of Pakistan
1973
• Sacredness of Dignity of Man, etc.: (Art 14)
– (1) The dignity of man and, subject to law, the privacy of home, shall be
inviolable.
– (2) No person shall be subjected to torture for the purpose of extracting
evidence.

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Constitution of Islamic Republic of Pakistan
1973

• Freedom of Movement, etc.: (Art 15)

– Every citizen shall have the right to remain in, and subject to any reasonable
restriction imposed by law in the public interest, enter and move freely throughout
Pakistan and to reside and settle in any part thereof.
– Every citizen shall have the right to assemble peacefully and without arms, subject to
any reasonable restrictions imposed by law in the interest of public order.
– Every citizen shall have the right to form associations or unions, subject to any
reasonable restrictions imposed by law in the interest of (sovereignty or integrity of
Pakistan, public order or morality.)

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Freedom of • Freedoms of assembly and association
under Articles 16 and 17 of the
Constitution of Pakistan are not
Assembly: unfettered and the state may impose
reasonable restrictions in the interest of
(Art 16) “public order”.
• The term “public order” has not been
& specifically defined, but it was held by the
Lahore High Court in Abdul Hameed
Freedom of Qadri v. S.D.M. Lahore and subsequently
in Shukar Din v. Government of West

Association Pakistan that danger to property, human

life, and safety and the disturbance of
public tranquility fall within the purview of
: (Art 17) reasonable restrictions that may be
imposed in the public interest by state
officials and law enforcement agencies to
avert danger or disturbances.
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 Freedom
• Freedom of Speech, etc: (Art 19)
Every citizen shall have the right to freedom
of speech and expression, and there shall be
of Speech freedom to the Press, subject to any
reasonable restrictions imposed by law in
the interest of the glory of Islam or the
integrity, security or defense or Pakistan or
any part thereof, friendly relations with
foreign States, public order, decency or
morality, or in relation to contempt of Court,
commission of or incitement to an offence.
• In Islamic Republic of Pakistan v. Abdul
Wali Khan, the Supreme Court held:
“Freedoms of speech, press, and assembly
are dependent upon the power of the
constitutional government to survive. If it is
to survive, it must have the power to protect
itself against unlawful conduct and under
some circumstances, against incitements to
commit unlawful acts.” 3
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In November • a peaceful protest staged by unarmed persons is a
constitutionally protected right…. This right stems from the

2019, in the fundamental rights of freedom of assembly, freedom of

association and freedom of speech/expression, which are

Islamabad guaranteed the Articles 16, 17 and 19 of the constitution

respectively…No law-abiding citizen can, therefore, be

High Court, denied the right of protest…. The state only in

extraordinary and exceptional circumstances can restrain a
person from exercising their right to protest on the grounds
Chief Justice of national security….

Athar • Peaceful protesters cannot be allowed to infringe the

fundamental rights of other citizens. It is thus the duty of

Minallah public functionaries to ensure that the constitutionally

guaranteed rights of every citizen are protected.

stated that, Maintaining public order is a crucial responsibility of the

state and its functionaries….
• The right to protest is indeed not an absolute right but it is
subject to reasonable conditions. It is the responsibility of
the law enforcing authorities to consider several factors
while imposing restrictions or conditions for the purposes of
regulating a peaceful protest so that the rights of other 3
citizens also remain protected. 1
 In February • the powers under Section 144 of the
Criminal Procedure Code, 1898, ["Power
2020, the to issue order absolute at once in urgent
Chief Justice cases of nuisance or apprehended
danger"] cannot be exercised in
of the derogation to the fundamental rights
Islamabad guaranteed under the Constitution.

High Court
declared that

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International Covenant on Civil and
Political Rights
• According to Article 22 of the International Covenant on Civil and Political
Rights, the right to freedom of assembly and association can only be
restricted in cases specified by domestic law and as long as it is necessary
and proportionate to protect
– national security or public safety;
– prevent disorder or crime;
– protect health or good morals, or
– protect the rights and freedoms of others.

• On any other case, the right to freedom of assembly and association

should be fully protected and even promoted.
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– For ex. Imposition of Section 144 3
 Constitution of Islamic Republic of Pakistan
1973
 Freedom of Trade, Business or Profession: (Art 18)
• Subject to such qualifications, if any, as may be prescribed by law, every citizen
shall have the right to enter upon any lawful profession or occupation, and to
conduct any lawful trade or business.

• 20. Freedom to profess religion and to manage religious institutions

• 21. Safeguard against taxation for purposes of any particular religion
• 22. Safeguards as to educational institutions in respect of religion, etc.

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Constitution of Islamic Republic of Pakistan
1973
• 23 & 24 Guarantee property rights
• 25. Equality before law, No Discrimination, Special Laws for Women, Children
• 25A. Right to Education
• 26. Non-discrimination in respect of access to public places
• 27. Safeguard against discrimination in services (QUOTA SYSTEM)
• 28. Preservation of language, script and culture

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Principe • 31. Islamic way of life
• 32. Promotion of Local government
of Policy Institution
• 33. Parochial and other similar
prejudices to be discouraged
• 34. Full participation of women in
national life
• 35. Protection of family, etc.
• 36. Protection of minorities

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Principe • 37. Promotion of social justice and
eradication of social evils

of Policy • 38. Promotion of social and economic

well being of the people
• 39. Participation of people in Armed
Forces
• 40. Strengthening bonds with Muslim
world and promoting international
peace

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 Difference
• Fundamental rights are enforceable by courts.
• Fundamental rights have more importance than

between •
principles of policy.
Fundamental rights provide legal remedy

Fundament • Fundamental rights create legal rights.

al Rights
• Fundamental rights are of permanent nature and can
taken away by amending the appropriate article.

and
Principles •
•
Principles of policy cannot be enforced by the courts.
Principles of policy are subsidiary to the fundamental
of Policy •
rights.
Principles of policy provide no legal remedy.
• Principles of policy create no legal right.
• Principles policy are not permanent. These are
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dependent on the availability of sources. 8