Without inherent fairness, the constitution would not have stood the test of time
fter its establishment in 1947, Pakistan unfortunately veered from one constitutional experience to the other with very limited success. However, the last document (1973) has stood the test of time. It may be confidently asserted that this was not possible without the inherent fairness of the constitution of 1973.
When we examine the fairness of a constitutional structure, it may broadly imply the fairness in relation to:
u Individual citizen
uGender based fairness
uFairness intra se
different political classes
uIndependent and vibrant judicial system
uSocial and economic
We shall now deal one by one with the above enumerated items in order to assess the extent of fairness provided by the Constitution of Pakistan 1973 in relation to each item.
The Constitution of Pakistan is based on the rule of law. It, therefore, provides that each citizen of Pakistan is entitled to be treated in accordance with law in relation to all rights and obligations, and further provides the rights to due process and fair trial during all civil and criminal proceedings against the citizen. Moreover, invaluable rights have been provided by means of conferring indefeasible fundamental rights. It is specifically provided that no law or executive action in derogation of the fundamental rights may be made or taken and any such action or law shall be void if it infringes any fundamental right. Fundamental rights relate to the protection of life; liberty; rights of association, assembly, movement, property; political rights; freedom of religion and speech; equal treatment of all citizens, including minorities, before the law; and in relation to public employment etc.
During the Pakistan movement, women worked shoulder to shoulder with men for the liberty of the nation. The constitution, therefore, provides special treatment for women: equality before the law (Article 25), equality in public employment (Article 27), equality of access to public places (Article 26), full participation of women in national life (Article 34), special representation of women in local, provincial and national legislatures and government (Articles 32, 51, 59,106).
Fairness intra se
Pakistan comprises four provinces and a federal capital area. It is a federation, and political power is distributed amongst the provinces and the federation. The federation has only enumerated legislative rights. Provinces have been granted residuary rights of legislation according to the principle of maximum provincial autonomy. Likewise, in the National Assembly each province is represented according to its population. But in the Senate, each province is given 14 seats while federation is allotted only two seats. In this way, there is a balance between the powers and rights of the provinces and the federation. In case of any dispute between the federation and provinces, several effective remedies are provided through the Supreme Court (Article 184), the Council of Common Interest (Article 153) and the National Finance Commission (Article 160).
Article 9 of the constitution provides an indefeasible right to approach judicial forums for individual redress of grievances. Article 175(3) lays down the principle of independence of judiciary. Judges of superior court once appointed become free from executive influence and can be removed from the judicial office only through the Supreme Judicial Council, which is a constitutional body (Article 209) comprising judges of superior courts. The grounds for removal are also given in the constitution. There is a fixed age of retirement for judges of the superior courts. Decisions of superior courts are binding on lower courts while all judicial and executive authorities are bound to act in aid of the Supreme Court (Article 190). A judge of a High Court once appointed in a High Court cannot be transferred to any other court without his consent (Article 200 and PLD 1996 SC 324).
Pakistan was conceived and created in the name of Islam. The constitution, therefore, takes special care to incorporate this public aspiration into its structure and body.
Article 2-A of the constitution guarantees that Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam. Religious rights of minorities are fully protected.
According to Article 227 of the constitution, the state is obligated to bring all existing laws in conformity with the injunctions of Islam. Further, it is mandated that no law shall be enacted which is repugnant to Islam.
Further, Article 228 constitutes an independent body by the name of the Islamic Ideology Council which is entrusted to examine all laws for reviewing their conformity with injunctions of Islam and in case change in law is required, make recommendations to the parliament and provincial assemblies for taking measures to effect desired changes in the law.
Chapter 3-A of Part VII of the constitution establishes a Federal Shariat Court with compulsory jurisdiction to pronounce any law or any one or more of its provisions as repugnant to the injunctions of the Shariah and thereupon such law, subject to appeal to the Shariat Appellate Bench of the Supreme Court, shall cease to have effect.
Social and economic justice
Special provisions have been made via “principles of policy” for establishing social and economic justice and alleviation of poverty. In this regard, mention of Article 37 (promotion of social justice) and Article 38 (promotion of social and economic well-being of people) may be made.
The writer is former caretaker federal law minister