The Mockery of the Fundamental Rights in Pakistan

By Asad Ali.

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.

“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”

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 born.

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 encounters. 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.

the clause (2) of the article 14 reads as “No person shall be subjected to torture for the purpose of extracting evidence”

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 Pakistan. 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 Trial” 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 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”

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”.

“an average fifty religiously motivated deaths are reported annually in Pakistan”

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”. 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”

“all citizens are equal before the law and are entitled to equal protection of the law”

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”. 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 Sahil. 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 school”. 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.

“a fundamental right is something that a government cannot arbitrarily take away from its citizens and a right guaranteed by the constitution cannot be taken away by the law”

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.

About Author:

Asad Ameer Chaudhary; Lahore based lawyer and has keen interest in International law and Politics. He can be reached at; asadali141@gmail.com 

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