The Mockery of the Fundamental Rights in Pakistan

We are living in the age of laws. The first gift for a child in this world is the citizenship. This is the
beginning of the long contractual journey between the state and the citizens. Since the child is entered
into the ambit of the citizenship, he gets the fundamental rights provided in the constitution of Pakistan.
Our constitution has also provided us with the sense of protection like the citizen of the other countries.
But, every day we are witnessing the substantial violations of different articles more frequently than the
citizen of any others country. At the place, I will pinpoint the most vulnerable articles from the chapter
of fundamental rights of the constitution of Pakistan 1973.

Article 9 of the constitution talks about the “security of persons” in the following proceeding words; No
person shall be deprived of life or liberty save in accordance with law. This article has a broad
interpretation which deals with all aspects of life, but I shall restrict myself only to the plain wording of
the article. The article guarantees the protection of lives and liberties of citizens. The state has the duty
to ensure such protection by the enactment of the relevant laws to protect and preserved the same.
Any attack on the life and liberty of citizens whatsoever way it occurred is a direct violation of the said
article. The incidence of children deaths by the lack of availability of the lifesaving gases and drugs in the
public hospitals to the environmental hazards and the extra-judicial killings by the police are fall in the
sphere of article nine.

This grim picture of the deteriorating child health situation could be seen in the annual health report of
the Pakistan Medical Association (PMA) which says one child dies every minute from EPI (expanded
program on immunization diseases), diarrhoea and acute respiratory infection (ARI). The report also
reveals that every year about 400,000 infants die in the first year of their life. Child health in Pakistan is
among the most important national issues that need serious attention. Child mortality in Pakistan is a
major cause of concern, with everyone among 10 children dying before reaching the age of five and one
among 30, just after they are borni.

Despite the law provides the protection of life, nobody among the population of more than two
hundred millions feel secure. The police in Pakistan have enjoyed the license to kill; according to a
recent report during the tenure of the former senior superintendent of police for Karachi (Malir) Rao
Anwar, 742 citizens have been killed in fake encountersii. But the concerned institutions, as well as the
legislature, seem to fail to provide the effective legislation and policies to stop the abuse of this
inimitable article.

Article 10 is meant to provide safeguards to every person against arbitrary arrest and detention. An
arrested person shall be provided with the grounds of his arrest, the opportunity to consult with his
legal representative, bring the person before a magistrate within 24 hours and the arrest should be
made under the law. The clause (b) of the article 13 says “No person shall, when accused of an offence,
be compelled to be a witness against himself”. The clause (2) of the article 14 reads as “No person shall
be subjected to torture for the purpose of extracting evidence". To the extent of the said clauses, we
have seen frequent abuse of the inviolable rights of the citizens. The forced disappearance of the
citizens by the law enforcement agencies are on the high rise. According to a report, in the first seven
months of 2016, there were 510 reports of forced disappearance in Pakistaniii. Every dissenting voice is
treated with the same gun. Illegal detention has become the norm for law enforcement agencies. The
third-degree torture methods by the police and the other agencies in the name of extracting the
evidence are the routine job. The inhumane torture has turned the idea of the Islamic Republic of
Pakistan into the “police state”. The judicial organ of the state is still struggling to change the flow of
status quo.

The 18th constitutional amendment can be truly termed as the renaissance of the constitutional
development in Pakistan. Except for the other remarkable constitutional contribution, it has given us the
dynamic concept of “Right to Fair Trail” under the article 10A of the constitution read as “For the
determination of civil rights and obligation or in any criminal charges against him a person shall be
entitled to a fair trial and due process”. The scope of this article is not only restricted to the judicial
proceedings but the departmental inquiries and proceedings also fall in the domain of the article. The
concept derived from the American jurisprudence which includes; every proceeding should be once
given the right of appeal, the principles of natural justice should be strictly followed while conducting
the trial and an adherence application of the principles of laws should be pleaded. This article has often
confronted in the institutional proceedings. The personal and professional biases have clearly perceived
in everyday legal proceedings. Firm application of these principles with the true spirit of the law is
necessary to protect the essential rights of the public.

The idea of freedom of speech has been floated by the article 19 of the constitution with the subject to
certain reasonable restrictions. Freedom of expression is one of those fundamental rights which are
considered to be the cornerstone of democratic institutions. The constitutional guaranty of liberty of the
press is one of the strongest bulwarks of liberty. Freedom of speech has been regarded as the mother of
all liberties in a democratic society. But, it is very unfortunate that every dissenting voice has been
treated harshly in our society. In recent past many vocal journalists, social activist and the member of
civil society have faced the forced disappearance, bear torture and abuse by those who have taken an
oath to protect them. To its worse, some have survived attacks and even too many have lost their lives.
The intolerance level of our youth has reached to the dangerous flat; the mob lynching of the fellow
student of Abdul-Wali khan University is the case in point. In majority cases, the religious shield is being
used as an instrument of protection by the culprits. This alarming trend should be stopped for the
protection of people rights of freedom of speech. This bold initiative should first start from the daises of
legislatures which have often seen to drop patients.

Article 20 of the constitution of Pakistan deals with “Freedom to profess religion and to manage the
religious institution” In the words of justice Munir p. 153 “this article proclaims constitutional safeguard
to every citizen so as to profess, practice and propagate any religion and to establish, maintain, and
manage religious institutions in accordance with the religious belief of the denomination or the sect
concerned. This right embraces two concepts, freedom to believe and freedom to act. So far as the
former is concerned it is absolute while the latter is subject to the restriction imposed by law, public
order and morality. If a religion preaches immorality or is against the legal frame of work of the country,
the legislature may step in to regulate it”.
The word religion is not defined anywhere in the constitution. We can get the impression from the
intention of the founding father of the constitution that every religion and religious believes are
protected by the constitution. The only exception to this rule is the second constitutional amendment
separately dealing with the Ahmadies or Lahories groups. The rights of all other groups are protected by
the constitution. Being citizens of Pakistan they are equal and free to confess their respective religions.
Additionally, article 33 of the constitution provides them special protection. But minorities in Pakistan
are treated harshly. They are often facing discrimination and torture by the other fellow citizens just
because of their religious beliefs. “An average fifty religiously motivated deaths are reported annually in
Pakistan”iv. It is a general impression that they are the second-degree citizen; but, this belief lacks the
legal as well as moral grounds.

The father of the nation Quaid Azam Muhammad Ali Jinnah had discredited any ill-treatment on the
basis of religion. In his address to the first constituent assembly of Pakistan on 11th August 1947, Mr
Jinnah said: "You are free; you are free to go to your temples; free to go to your mosques or to any
other places of worship in the State of Pakistan. You may belong to any religion or caste or creed that
has nothing to do with the business of the state"

Article 25 is another most susceptible one, it deals with the “Equality of citizens” and read as “(1) All
citizens are equal before the law and are entitled to equal protection of the law. (2) There shall be no
discrimination on the basis of sex. (3) Nothing in this article shall prevent the state from making any
special provision for the protection of women and children". The concept of equality can only be talked
in the books of curricula. The glaring violation of the article has been seen daily. The resourceful people
are committing the crime with impunity. Gender-based violence has been densely penetrated in our
society. The misogyny is on the peak. Men have got a permit to kill the opposite gender in the name of
honour-killing. “According to the Human Rights Commission of Pakistan, a total of 675 women and girls
were killed in the name of honour across Pakistan from January to September 2017 by relatives on so-
called “honour" grounds”v. As many cases went unreported or were falsely described as suicides or
natural deaths, the actual number was almost certainly much higher. The laws are gender blind. The
menace of child abuse has highly infiltrated. The cases of rape and murder of innocent children have
reported frequently. In the previous year, the total number of reported child abuse cases stood at a
staggering 4,139, bringing the total number of children being abused in Pakistan per day to 11 according
to data collected by non-governmental organization Sahilvi. Despite having the special protection
according to the article, women and children are badly suffering the injustice in different forms. The
relevant authorities till the day are unsuccessful to guard them.

Article 25A has been injected into the constitution through the 18th constitutional amendment. The
article deals with the compulsory education for all children age five to sixteen. People cannot be free in
the real sense unless they are properly educated. Education is a human right, a vital sector that plays
decisive role in human resource development, social-economic growth, building human capabilities
through knowledge-based society, creativity, and knowledge-based learning organization. The
importance of education is not unknown to anyone. “Though the number of out-of-school children has
reduced from last year’s figure of 22.6 million to 21 million, statistics of 2016-17 still paint a gloomy
picture, calling for the imposition of real education emergency. As many as 42pc children between the
ages of five and 16 are still out of schoolvii”. The literacy rate is hardly above fifty-five percent, the state
of public education is in disarray. But, the authorities and concerned institutions are underestimating
the situation.

The portion of allocated resources for education department is very small. Albeit the present
government has increased the share of education budget but it is still far behind the international
standard. The syllabus is outdated and has been failed to provide the quality education. The strength of
the teaching staff is deficient. There is four parallel systems of education exist in Pakistan, which has
further amplified the confusion. This perilous division of learning has created the strong class system in
our society. The worse victims of the division are the poor of the poorer who do not have any
alternative. State failure to cater the educational need of its citizen is derision of their fundamental
rights.

We enjoy certain rights simply because we all are human. These are not given to us by a statute,
government, or a treaty. A statute may only recognize what we already have. Conceptually, these reflect
the power of an individual person, and the limits of a government. A fundamental right is something
that a government cannot arbitrarily take away from its citizens. The very conception of fundamental
rights is that it being a right guaranteed by the constitution cannot be taken away by the law or by any
person, and it is not only technically inartistic but a fraud with the citizen to say that fundamental rights
and that it can be taken away or not satisfied. The chapter fundamental rights are a milestone towards
the prosperity of Nation, what is written in the constitution of Pakistan. But after 45 years of the
enforcement of the constitution of 1973 the implementation at the grass root level has not been
granted. The people are badly suffering due to lack of availability of the fundamental human needs. The
satisfaction of the public rights have nowhere on the priority list of the government. The culture of
political victimization and ill-treatment by the state authorities are triggering dissatisfaction among the
masses. The government should undertake valuable steps to make the track correct. If the government
doesn’t take effective measures on an emergency basis, the chain of silence will not take time to be
broken. Once it cracked the antidote of nationalism will became irrelevant to tackle the situation.

i
The Annual Health Report by Pakistan Medical Association
ii
Dawn Newspaper Investigation: “Rao Anwar and the killing fields of Karachi”
iii
I. A. Rehman (25 August 2016). "Disappearances still a major issue"
iv
ResearchGate “Global suffering of minorities”
v
Human Rights Commission of Pakistan assessment 2016-17
vi
Sahil organization child abuse report 2017 www.sahil.org.com
vii
UNICEF report 2016-17 www.unicef.org
Asad Ameer Chaudhary; Lahore based lawyer and has keen interest in International law and Politics.

Reached at; asadali141@gmail.com