PAKISTAN SENATE

House of the Federation

C o n s i s t e n t P a r l i a m e n t a r y C o r d

F U N DA M E N TA L
o f
RIGHTS
t h e C i t i z e n s o f P a k i s t a n

Zafarullah Khan

Published by Senate of Pakistan

C o n s i s t e n t P a r l i a m e n t a r y C o r d

F U N DA M E N TA L
RIGHTS
o f t h e C i t i z e n s o f P a k i s t a n

Zafarullah Khan

Published by Senate of Pakistan

Consistent Parliamentary Cord
Fundamental Rights
of the Citizens of Pakistan

Author
Zafarullah Khan

First Edition: March, 2016

 2

1
 contents
Foreword 03

Introduction 06

Chapter-I 10
Foundational vision for Pakistani
bill of rights
Chapter-II 18

The consistent parliamentary cord:

Fundamental Rights for the citizens
2 of Pakistan
Chapter-III 42

The First Republic: Short lived

Fundamental Rights

Chapter-IV 66
The Third Republic: We the People

Chapter-V 94
The institutional responses by
the Parliament

Chapter VI 112
Federal laws to protect
Fundamental Human Rights

Epilogue 119
2
Foreword

A state cannot circumvent its challenges, let alone develop a roadmap,

in the absence of a collective political and social ethos that something is amiss
and must be corrected.
Measured against this yardstick, Pakistan's progression on account of
human rights appears anything but linear. Dictatorial autocrats not only
suspended, abrogated and amended the Constitution, but also suspended human
rights at will – and it would not be the first time, nor the last, in human history that
Law will have been used (or abused) towards protecting lawlessness.
History bears witness that even during pre-modern civilizations and
rigid imperialistic autocracies, an effort was made to govern through codified
laws, though often implemented through quasi-representative or hand-picked
forums, as in Pakistan's case.
It is a reality that Pakistan has, and continues to, face challenges on
account of human rights, mainly due to inadequacies on part of the executive and
judiciary in terms of implementation and interpretations of laws.
Fortunately, that is all there is to the seamy side and gray clouds. As also
rightly depicted in this book, our human rights silver lining has always been
Parliament and public representatives.
Since the first Parliamentary Committee on Human Rights, was formed
in the Constituent Assembly of Pakistan on 12th August, 1947, to the very

3
formation of the National Commission for Human Rights created by an Act of
Parliament, Pakistan's Parliament and legislators have been playing a key role –
through legislation, debate and oversight – in protecting and promoting human
rights in the country.
I commend Zafarullah Khan for authoring this well-researched, factual
and objective publication on Pakistan's human rights journey, in its true
historical, political and constitutional context.
I believe that this book will be of immense reference and citational
value for researchers, students and even legislators working on the subject, and
as such, it would be an asset for any library.

Mian
Raza
Rabbani
NI
Chairman
Senate

4
5
Introduction

T
his is a brief snapshot of the Parliamentary efforts since 1947 to provide and

protect the Fundamental Rights of the citizens of Pakistan. It is a story of

initiatives to erect constitutional safeguards, legislative leaps, issues flagged

and highlighted and the institutional design created during the last 69-year. It also enlists

major intellectual and ideological contestations that were witnessed in the Parliament of

Pakistan while defining and determining the soul and the spirit of the nation.

One can say with a degree of confidence that the Parliament has done its job

quite well to provide a broader framework, constitutionally guaranteeing Fundamental

Rights and creating enabling platforms like the Senate Functional Committee on Human

Rights, a Parliamentary Task Force on Millennium Development Goals (MDGs) and by

creating statutory institutions like; the independent and autonomous National

Commission for Human Rights and the National Commission on the Status of Women.

Operationalization of the Articles that bestow the Fundamental Rights is the

responsibility of the State and its implementation arms at the federal, provincial and local

levels. And in case of the denial of these rights or any lethargy in their enforcement, the

Supreme Court of Pakistan and the High Courts have been constitutionally mandated to

dispense justice. The role of the Executive and the Judiciary merit separate similar

studies, meanwhile this research has attempted to document thematic contributions vis-à-

vis Fundamental Rights made by the Parliament of Pakistan. The assumption is that this

research will set the stage for future academic ventures to scrutinize the subject in greater

depth, critical evaluation and analysis. I hope that this indicative work will be useful for

future researchers and academicians to locate the original sources and explore the

6
persistent vision, various strands of arguments and the historic parliamentary outcomes.

Fundamental Rights is a constitutional term, which - in various entrenched bills

of rights – picks-up a set of rights from the broader domain of ever-evolving human rights.

Some scholars gauge the level of civility in a polity making the quantum of

constitutionally guaranteed fundamental rights as an indicator because these rights assign

practical meanings to the social contract between the citizens and the State. Since

independence the Parliament of Pakistan has passed about 88 laws that have specific

bearing in translating the abstract concept of human rights in to something tangible for the

citizens. Enforcement of the enacted laws falls in the domain of the Executive.

This research has privileged the chronological order so that one can historically

contextualize the incremental journey of constitutionalization and codification of the

Pakistani social contract. The Colonial constitutional arrangements did not offer any set

of guaranteed fundamental rights but the political leadership of that time was quite well

abreast and acquainted with this evolving concept. A write-up on the role of Quaid-i-

Azam Mohammad Ali Jinnah towards rights based polity in colonial India has been

included in this publication so that the present and the future parliamentarians continue to

benefit from the vision of the founding father of the nation.

Contemporary constitutions are not carved on stones, rather they remain a

living organic document that could be amended through due parliamentary processes to

accommodate and incorporate emerging and evolving new realities. This notion keeps the

optimism alive that in future the Chapter on Fundamental Rights will be expanded from

currently constitutionally acknowledged 24 rights to many more and also to synchronize

them with country's international commitments under various conventions and covenants

signed and ratified by the State.

Pakistan was conceived as a federal parliamentary state primarily to protect the

7
rights of the Muslim minorities and their marginalized provinces in colonial India. Our

salvation lies in adhering to these foundational principles. The notion of equality based

citizenship that resonated in the inaugural address of Quaid-i-Azam Mohammad Ali

Jinnah in the First Constituent Assembly of Pakistan and was practically demonstrated

during the initial years of our independence has to be reclaimed in the contemporary

Pakistan for lasting peace and people's prosperity in the long run.

While reading this publication a question may arise that if the Parliament has

done such wonderful work then where are the dividends? The answer lies in an odd fact

that whenever the Constitution is held in abeyance and democracy is disrupted the

'fundamental rights' are suspended. I have counted the constitutional life of the country in

this publication and till 29th January 2016 out of the total 25, 226 days of our national life

we had the umbrella of the Constitution for 928 days (Constitution of 1956) and 2,482

days (Constitution of 1962). The life of the Constitution of 1973 is 15,730 days but it was

held in abeyance for 4,390 days and a hybrid character beneath military rulers for 3,020

days. Therefore the citizens of Pakistan hardly realized the fruits of their freedom. We

must ensure the continuity of democratic order in the country because the software of

citizens' rights can operate only in this hardware determined by the citizens themselves

through their right to vote and aspirations to be governed democratically.

Now the citizens of Pakistan can quite genuinely also pin their hopes in the

promise and the potential of the National Commission for Human Rights (NCHR) an

independent statutory body created by the Parliament with a twin mandate to promote and

protect the constitutionally guaranteed fundamental rights and to apply long awaited filter

to check the veracity of various laws on the statute book vis-à-vis the fundamental rights.

Thanks:

I would like to extend my sincere thanks to Senator Mian Raza Rabbani,

8
Chairman, Senate of Pakistan for encouraging and providing an opportunity to conduct

this research along with offering highly valuable suggestions.

Mr. Amjed Pervez Malik, Secretary Senate of Pakistan for his support and

suggestions. Ms. Shugufta Shaukat, Deputy Director Library of the Senate of Pakistan for

making access to the Parliamentary records and debates possible, Mr. Qasim Omer,

Section Officer, for providing information and data about the institutional history of the

Senate Functional Committee on Human Rights.

Zafarullah Khan

Islamabad

February 2016

9
Chapter-I
Determining Pakistani Gene

10
Foundational vision for Pakistani bill of rights

The cry of liberty, fraternity and equality which was raised

during your [French] Great Revolution and officially adopted by
your great Republic [France] had its repercussions throughout
the world as is known to every student of history. These ideals
and these principles are still buoying up the hopes of many
downtrodden nations.
Quaid-i-Azam’s Remarks on 2nd, January 1948

11
Quaid-i-Azam Mohammad Ali Jinnah: an advocate of fundamental rights

T
hroughout his political and parliamentary career the founder of Pakistan

Quaid-i-Azam Mohammad Ali Jinnah remained an able, articulate and

firm advocate of fundamental human rights. He remained consistent and

persistent in his demands to humanize the colonial constitution schema by incorporating

some semblance of justice and due process.

While spearheading the democratic struggle of the South Asian Muslims for

their right to 'self-determination' Mohammad Ali Jinnah authored his famous 14-Points in

1929. The 7th articulation of this historic document called for; 'full religious liberty, i.e.

liberty of belief, worship and observance, propaganda, association and education, shall be

guaranteed to all communities.'

Quaid-i-Azam Mohammad Ali Jinnah first entered the Imperial Legislative

Council in 1909 and remained its member till 28th March, 1919-the day he resigned as a

mark of protest against the passage of the Criminal Law Emergency Power Act (the

Rowlatt Act). Mohammad Ali Jinnah vehemently opposed the Bill on 6th February, 1919

saying, 'It is against the fundamental principles of law and justice, namely that no man

should lose his liberty or be deprived of his liberty without a judicial trial in accordance

with the accepted rule of evidence and procedure."

Quaid-i-Azam Mohammad Ali Jinnah resumed his parliamentary career when

he was elected to the Central Legislative Assembly in 1923 and later to the Indian

12
Legislative Council in 1926. His speeches and stands in these institutions bear historic

testimony that he always stood for freedom and liberty, especially the freedom of speech.

There are many instances when he described restrictive colonial laws as a blot on the

Statute Book. For example he criticized the Press Act-1910 for its arbitrary provisions that

gave the executive powers to punish erring newspapers sans any judicial check.

In 1912 when Gopal Krishna Gokhale moved the Primary Education Bill,

Quaid-i-Azam Mohammad Ali Jinnah fully backed it by saying, “..we are convinced that

there is no salvation for masses unless the principle of compulsion (compulsory

education) is introduced in this country.” However he was prophetic when he said in 1912

that “…it will take 175 years (i.e. till 2087) in order to get all school-going children to

school and 600 (i.e. till 2512) years to get all the girls to school.” Quaid-i-Azam

Mohammad Ali Jinnah wanted more vigorous steps in educating the people. He also

forcefully responded to the critics who said that “if the common population is educated

they will become 'too big for their boots' and will demand more rights.” Replying to the

critics of the bill he asked; 'Are you going to keep millions and millions of people trodden

under your feet to fear that they may demand more rights, are you going to keep them in

ignorance and darkness forever and in all ages to come because they may stand up against

you and say that “we have certain rights and you must give them to us.”

Quaid-i-Azam Mohammad Ali Jinnah also successfully piloted a private

member bill; Waqf Validating Bill in 1911. The statement of the objects and reasons of that

Bill said it aimed at removing the “hardship” that had been created by certain decisions of

the Privy Council. The Bill reproduced the Muslim law of Waqf Alal Aulad in a codified

13
form with certain safeguards for the authenticity of waqfnama and for prevention of fraud

upon creditors or otherwise. The Bill was passed in 1913 as Mussalman Wakf Validating

Act and it received the assent of the Governor General on 7th March, 1913.

In April 1913 while speaking in the Imperial Legislative Council, the Quaid-i-

Azam said, "Sir, I believe in criticizing Government freely and frankly, but at the same

time, that it is the duty of every educated man to support and help the Government when

the Government is right.' On 16th September 1924 Quaid-i-Azam Mohammad Ali Jinnah

opposed the Indian Criminal Law (Amendment) Bill as it curbed and curtailed the

freedom of association. As an advocate of political parties Quaid-i-Azam is on record

saying in the context of Government of India Act 1935, '…the Parliamentary system of

Government which is being introduced in the country with the inauguration of the new

constitution presupposed the formation of parties with a well-defined policy and program

which can facilitate the education of the electorate, and cooperation between groups with

approximate aims and ideals and ensures the working of the Constitution to the best

advantage. 'Later in an interview with the Associated Press of America on 8th November,

1945 he made it clear that he did not expect that Pakistan would have one-party

Government. He said;'… he would oppose one-party rule. An opposition party or parties

are good corrective for any party which is in power.'

There are many speeches by Quaid-i-Azam Mohammad Ali Jinnah that

highlighted the issue of habeas corpus in colonial India. He strongly opposed the Bengal

Criminal Law Amendment Supplementary Bill by making a distinction between

emergency and normal time in his speech on 23rd March, 1925. On 22nd January, 1935 he

14
opposed the detention of Sarat Chandra Bose for three years saying, 'Here is a member

who though arrested in February 1932 has been kept under detention and when

challenged to put him to trial or release him, the government takes neither step. How does

the government justify the detention of Mr. Sarat Bose for one single day? Even if there is

no question of privilege, is not the Assembly entitled to censure the Government for

detaining without trial any person, in this case a member of this House.'

On 3rd May, 1944, Quaid-i-Azam Mohammad Ali Jinnah denounced the

repressive and oppressive measures which trampled the constitutional liberty of the

people during critical times. He aptly and openly demanded; "Is the present constitution

under which we are working to function fully and freely and the constitutional liberty

should not be interfered with or curtailed? The present Legislature is now seven years old.

We have repeatedly urged that fresh elections should be held, but the government has

turned a deaf ear so far. Are we not entitled to make every legitimate effort to put our

house? Either we should be allowed full freedom to work or we must be definitely told to

close down our shutters. But it will be a great blunder to interfere with constitutional

liberties under the pretext that they might interfere with the war efforts.'

Besides the evolving parliamentary institution Quaid-i-Azam voiced for

independent judiciary at the Federal Structure in the subcommittee of the Second Indian

Round Table Conference in November 1931. Dealing with the jurisdiction of the

proposed Federal Court, he was of the view that if there was any measure that infringed

any provision of the Constitution which included Fundamental Rights, it should be open

to the subject to go to the Court.

15
 Quaid-i-Azam Mohammad Ali Jinnah observed many legal squabbles and

learnt about the legislative intricacies during his student life in London when he used to

witness the proceedings of the Westminster from its gallery. He developed his

constitutionalist parliamentary acumen after meeting many liberal leaning leaders in the

Britain. Even upon creation of Pakistan he advised the Pakistani youth to read John

Morley's long essay 'On Compromise' that emphasized the civilizational learning of

accommodation and flexibility. In his many speeches and numerous statements, Quaid-i-

Azam Mohammad Ali Jinnah explicitly expressed his views on liberty, equality, justice,

fraternity, protection of property of the minorities and other rights.

Quaid-i-Azam Mohammad Ali Jinnah's thoughts were well articulated in his

famous 11th August, 1947 speech. Besides being the elected president of the First

Constituent Assembly of Pakistan he chaired the first parliamentary committee created on

12th August, 1947 that was the Committee on Fundamental Rights of Citizens and

Minorities of Pakistan. Quaid-i-Azam Mohammad Ali Jinnah led us by demonstrating his

unwavering commitment for the fundamental rights. Therefore we must not ignore our

foundational gene to create a rights based society in Pakistan.

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17
Chapter-II

The Consistent Parliamentary Cord:

Fundamental Rights for
the Citizens of Pakistan

18
 Shri Joginder Nath Mandal, first Chairman of the
Constituent Assembly of Pakistan addresses while the Quaid listens.

19
R
ight from the onset, the parliamentary institutions in Pakistan have devoted

ample time, unwavering commitment and generous energies to raise a voice

for the fundamental rights of the citizenry. The Hansard of the Constituent-

cum Legislative Assembly (1947-1956), the National Assembly of Pakistan (1956-1973)

and the Parliament since 1973 comprising of the National Assembly and the Senate of

Pakistan, confirms that the theme of fundamental rights has been a common cord among

various shades of political opinion and perspectives. It is a committed parliamentary

journey spread over 69 years.

One may ask that despite resolute efforts made by the Parliament, where are the

fruits of freedom? And why we have not been able to realize a rights based society in

Pakistan. The odd aspect of this story remains that while the mandate bearers always

stood fast for a federal-democratic Republic based on the rights of the citizens, the other

pillars within the trichotomy of power often resorted either to 'doctrine of necessity' since

the dissolution of the First Constituent Assembly in 1955 (Federation of Pakistan versus

Maulvi Tamizuddin, PLD 1955 FC 240) till the last military intervention by General

Pervez Musharraf in 1999 (Zafar Ali Shah versus General Pervez Musharraf, PLD 2000

SC 869) or perpetuated the diluted day to day governance based on a convenient

authoritarian notion; 'notwithstanding anything written in the Constitution and in any

law…..'Unfortunately Pakistan has spent more time of its national life either under the

full-fledged military or the controlled hybrid regimes beneath presidents in uniform.

(See box: 1 the Constitutional Life of Pakistan).

Monitored by the author till 29th January, 2016

20
 Constitutional Life of Pakistan
No of Days

Percentage wise distribution

In a normal democratic polity it is the organic constitution that serves as a social contract

between the citizens and the state. Invariably such social contract is articulated and

authored by the politics and legitimized in the representative democratic institutions.

Upon its adoption the constitution converts a regime in to a Republic and elevates the

populace from being mere subjects to full-fledged citizens with guaranteed substantive

fundamental rights. Quantum of rights preserved in the constitution indicates the level of

citizens-state bonding and determines the effectiveness of the social contract.

21
 The early story of Pakistan is not different. Historically the first parliamentary
committee created in the Constituent Assembly of Pakistan on 12th August, 1947 was the
Committee on Fundamental Rights of Citizens and on Matters Related to Minorities. The
Committee was headed by Quaid-i-Azam Mohammad Ali Jinnah-the President of the
Assembly and the Founding Father of the nation. This signifies the importance accorded
to the question of citizens' rights besides bearing testimony to a firm commitment at the
highest level. This also confirms that the platform to define the contours of Pakistani
social contract was the Parliament.
Subsequently the members of the Constituent Assembly of Pakistan (1947-
1956) applied historic vision and wisdom to constitutionally codify the fundamental
rights of the citizens. The Assembly twice discussed the reports produced by the
Committee on Fundamental Rights of Citizens and on Matters Related to Minorities. In
1950 for three-days to adopt an interim report and for the second time in 1954 for four-
days to adopt the final report. The timing coincided with the global wave of
acknowledging rights after the adoption of Universal Declaration of Human Rights
(UDHR) from the platform of the United Nations. The references of many of the clauses
of the UDHR resonated in the debates in the Constituent Assembly.
Later the Constituent Assembly approved the Objectives Resolution on 12th
March, 1949 after a five-day debate and discussion to indicate basis for the future
constitution of Pakistan. Finally the Constituent Assembly approved the Chapter (Article
3-22) comprised of 19 justiciable Fundamental Rights in the Constitution of Pakistan-
1956 on 4th February, 1956 after a three-day debate and discussion.
Statistically the Constituent Assembly of Pakistan worked for 197 days from
10 August, 1947 till 22nd March, 1956 and out of these 15 days (8-percent) were purely
th

devoted to defining the concept and quantum of Fundamental Rights of the citizens of
Pakistan. Here it is important to mention that the concept of rights was an essential part of
many other debates and discussions as well, especially during the consideration of

22
various reports of the Basic Principles Committee and while settling the issues pertaining
to electoral franchise etc.
If one attempts to summarize various strands of arguments during these
parliamentary debates on the question of constitutionalized fundamental rights during
1947-1956, they can broadly be classified as the following:
Ÿ The nature of the State and its future aspirations,
Ÿ Role of the religion in the affairs of the State,
Ÿ Equality of Citizenship,
Ÿ Unfettered freedoms and entitlements for the citizens, and
Ÿ Expanding the scope of the Principles of Policy for citizen-centric
governance.
Evolving Pakistani bill of rights
In order to deepen understanding about the evolution of the Pakistan’s bill of
rights it is important to look at the proceedings of the first four days of the Constituent
Assembly of Pakistan along with some other landmark moments. These will provide us
glimpses of practical demonstration of commitment towards equality of citizenship in the
post-colonial state. There were many symbolic gestures and substantive speeches that set
an optimistic tone for the rights based political narrative and inclusive Pakistan.
The first session of the Constituent Assembly of Pakistan took place in the
Assembly Chamber, Karachi from 10th August, 1947 to 14th August, 1947. The Hansard of
four sittings during the inaugural session conveys that the soul and the spirit of the new
Republic was to provide equality based citizenship and fundamental rights to the people.
This commitment was practically demonstrated and philosophically described on various
occasions during the work of the Constituent Assembly of Pakistan.
In the maiden meeting of the Constituent Assembly of Pakistan on Sunday, the
th
10 August, 1947 the first item on the agenda was the 'Election of Temporary Chairman.'
The Honourable Mr. Liaquat Ali Khan, Muslim Member from East Bengal proposed that

23
Mr. Jogendra Nath Mandal, a Dalit leader from East Bengal, be elected as temporary
Chairman. Mr. Khwaja Nazimuddin, another Muslim Member from East Bengal
seconded the proposal and Jogendra Nath Mandal became the first legislator to chair the
Constituent Assembly of Pakistan.
In his inaugural address Mr. Jogendra Nath Mandal hoped that the free
independent State of Pakistan will bring prosperity, happiness and peace to all of its
citizens. He declared that his election as 'a member from a minority community' is
concurrent with the creation of Pakistan, stating that Pakistan today is the result of a
persistent and legitimate demand of the minority community, namely, the Muslims of
India. In his address he said, “I would like to point out that not only will the people of
Pakistan and India but the people of the whole world look to Pakistan Constituent
Assembly and find for themselves that the Muslim community which was determined to
acquire their legitimate rights and privileges and determined to have a separate State of
Pakistan will never lack in the quality of doing not only justice and fairness but acts of
generosity towards the people of minority communities inhabiting Pakistan, and that is
my greatest satisfaction. People of minority communities in Pakistan may be assured, as
they have been assured repeatedly by the Muslim League leaders, and particularly Quaid-
i-Azam, Mr. Mohammad Ali Jinnah, that people of minority communities would not only
be treated justly and fairly but generously”. He also talked about corresponding loyalty
and faith in the State of Pakistan.
In the inaugural session of the Constituent Assembly, fifty five legislators
signed the Roll. The first name on the Register was of Jogendra Nath Mandal followed by
Quaid-i-Azam Mohammad Ali Jinnah. Next day i.e. 11th August, 1947, Quaid-i-Azam
Mohammad Ali Jinnah was unanimously elected as the President of the Constituent
Assembly of Pakistan.
A series of congratulatory speeches followed and the second speech was by
Kiran Sankar Roy, leader of the Congress Party. In his speech he stated, “As far as we are

24
concerned, Sir, if the Pakistan which you have in your mind means a secular democratic
State, a State which will make no difference between a citizens and a citizen, which will
deal fairly with all irrespective of caste, creed or community, I assure you that you shall
have our utmost cooperation. We shall share all the difficulties and risks as we hope to
share the prosperity and happiness which we will jointly create in this new State. And in
return, Sir, we shall expect the rights and privileges of the minority guaranteed in the
constitution, guaranteed not only in the Constitution but actually respected in the day to
day working of the Government. When I say that, Sir, I realize that mere guarantee in the
constitution is not enough. Sir, you have been a great leader of the Muslims. Time has now
come for you to take up the leadership of the State which includes not only Muslims but
Hindus and other communities.”
The foundational vision
In his inaugural speech to the House, Quaid-i-Azam Mohammad Ali Jinnah
presented his vision of a nation where equality of citizenship prevailed, particularly, a
nation whose citizens would not be differentiated on the basis of religion. The civil society
of Pakistan describes this 1,618-words speech of the Quaid-i-Azam's as the 'Magna
Carta' for the country because it broadly defined the nature and direction of the State.
While the executive attempted hard to censor the speech in the press in 1947,
the Parliament of Pakistan has preserved it well for the posterity. Besides the verbatim
proceedings of the day in the Constituent Assembly preserved in the Library of the
National Assembly of Pakistan and available on the assembly website, the complete text
of this historic speech is displayed in the precinct of the Parliament. This was done on the
orders of the then Speaker National Assembly, Malik Miraj Khalid on the suggestions of
the then Prime Minister, Mohtarma Benazir Bhutto.
On various occasions the legislators have demanded to make this speech part of
the textbooks taught in the nations' classrooms. On 13th February, 2007, Mr. M. P.
Bhindara MNA hailing from the minorities, through a private member bill unsuccessfully

25
attempted to make it a part of the Constitution. Since 2009 the government officially
celebrates 11th August as the 'Minorities Day' to reaffirm its commitment to the vision of
the Quaid-i-Azam, Mohammad Ali Jinnah.
The President's address
Mr. President, (Quaid-i-Azam Mohammad Ali Jinnah) Ladies and Gentlemen,
I cordially thank you, with the utmost sincerity, for the honour you have conferred upon
me - the greatest honour that is possible for this Sovereign Assembly to confer -- by
electing me as your first President. I also thank those leaders who have spoken in
appreciation of my services and their personal references to me. I sincerely hope that with
your support and your co-operation we shall make this Constituent Assembly an example
to the world. The Constituent Assembly has got two main functions to perform. The first is
the very onerous and responsible task of framing the future constitution of Pakistan and
the second of functioning as a full and complete Sovereign body as the Federal
Legislature of Pakistan. We have to do the best we can in adopting a provisional
constitution for the Federal Legislature of Pakistan. You know really that not only we
ourselves are wondering but, I think, the whole world is wondering at this unprecedented
cyclonic revolution which has brought about the plan of creating and establishing two
independent Sovereign Dominions in this sub-continent. As it is, it has been
unprecedented; there is no parallel in the history of the world. This mighty sub-continent
with all kinds of inhabitants has been brought under a plan which is titanic, unknown,
unparalleled. And what is very important with regard to it is that we have achieved it
peacefully and by means of an evolution of the greatest possible character.
Dealing with our first function in this Assembly, I cannot make any well-
considered pronouncement at this moment, but I shall say a few things as they occur to
me. The first and the foremost thing that I would like to emphasize is this: remember that
you are now a Sovereign Legislative body and you have got all the powers. It therefore
places on you the gravest responsibility as to how you should take your decisions. The first

26
observation that I would like to make is this: You will no doubt agree with me that the first
duty of a government is to maintain law and order, so that the life, property and religious
beliefs of its subjects are fully protected by the State.
The second thing that occurs to me is this: One of the biggest curses from which
India is suffering – I do not say that other countries are free from it, but I think our
condition is much worse – is bribery and corruption (Hear, hear). That really is a poison.
We must put that down with an iron hand, and I hope that you will take adequate measures
as soon as it is possible for this Assembly to do so.
Black-marketing is another curse. Well, I know that black-marketeers are
frequently caught and punished. According to our judicial notions sentences are passed,
and sometimes fines only are imposed. Now you have to tackle this monster, which today
is a colossal crime against society, in our distressed conditions, when we constantly face
shortage of food and other essential commodities of life. A citizen who does black-
marketing commits, I think, a greater crime than the biggest and most grievous of crimes.
These black-marketeers are really knowing, intelligent, and ordinarily responsible
people, and when they indulge in black-marketing, I think they ought to be very severely
punished, because they undermine the entire system of control and regulation of
foodstuffs and essential commodities, and cause wholesale starvation and want and even
death.
The next thing that strikes me is this. Here again is a legacy which has been
passed on to us. Along with many other things, good and bad, has arrived this great evil -
the evil of nepotism and jobbery. This evil must be crushed relentlessly. I want to make it
quite clear that I shall never tolerate any kind of jobbery, nepotism, or any influence
directly or indirectly brought to bear upon me. Whenever I will find that such a practice is
in vogue or is continuing anywhere, low or high, I shall certainly not countenance it.
I know there are people who do not quite agree with the division of India and the
partition of the Punjab and Bengal. Much has been said against it, but now that it has been

27
accepted, it is the duty of every one of us to loyally abide by it and honourably act
according to the agreement which is now final and binding on all. But you must
remember, as I have said, that this mighty revolution that has taken place is
unprecedented. One can quite understand the feeling that exists between the two
communities wherever one community is in majority and the other is in minority. But the
question is, whether it was possible or practicable to act otherwise than what has been
done. A division had to take place. On both sides, in Hindustan and Pakistan, there are
sections of people who may not agree with it, who may not like it; but in my judgment
there was no other solution, and I am sure future history will record its verdict in favour of
it. And what is more, it will be proved by actual experience as we go on that that was the
only solution of India's constitutional problem. Any idea of a United India could never
have worked, and in my judgment it would have led us to terrific disaster. Maybe that view
is correct; maybe it is not; that remains to be seen. All the same, in this division it was
impossible to avoid the question of minorities being in one Dominion or the other. Now
that was unavoidable. There is no other solution. Now what shall we do? Now, if we want
to make this great State of Pakistan happy and prosperous, we should wholly and solely
concentrate on the well-being of the people, and especially of the masses and the poor. If
you will work in co-operation, forgetting the past, burying the hatchet, you are bound to
succeed. If you change your past and work together in a spirit that every one of you, no
matter to what community he belongs, no matter what relations he had with you in the
past, no matter what is his colour, caste, or creed, is first, second, and last a citizen of this
State with equal rights, privileges, and obligations, there will be no end to the progress
you will make.
I cannot emphasize it too much. We should begin to work in that spirit, and in
course of time all these angularities of the majority and minority communities, the Hindu
community and the Muslim community – because even as regards Muslims you have
Pathans, Punjabis, Shias, Sunnis and so on, and among the Hindus you have Brahmins,

28
Vashnavas, Khatris, also Bengalis, Madrasis and so on – will vanish. Indeed if you ask me,
this has been the biggest hindrance in the way of India to attain the freedom and
independence, and but for this we would have been free people long long ago. No power
can hold another nation and specially a nation of 400 million souls in subjection; nobody
could have conquered you, and even if it had happened, nobody could have continued its
hold on you for any length of time, but for this. Therefore, we must learn a lesson from
this. You are free; you are free to go to your temples, you are free to go to your mosques or
to any other places or worship in this State of Pakistan. You may belong to any religion or
caste or creed – that has nothing to do with the business of the State. As you know, history
shows that in England conditions, some time ago, were much worse than those prevailing
in India today. The Roman Catholics and the Protestants persecuted each other. Even now
there are some States in existence where there are discriminations made and bars imposed
against a particular class. Thank God, we are not starting in those days. We are starting in
the days where there is no discrimination, no distinction between one community and
another, no discrimination between one caste or creed and another. We are starting with
this fundamental principle: that we are all citizens, and equal citizens, of one State. The
people of England in course of time had to face the realities of the situation, and had to
discharge the responsibilities and burdens placed upon them by the government of their
country; and they went through that fire step by step. Today, you might say with justice
that Roman Catholics and Protestants do not exist; what exists now is that every man is a
citizen, an equal citizen of Great Britain, and they are all members of the Nation.
Now I think we should keep that in front of us as our ideal, and you will find that
in course of time Hindus would cease to be Hindus, and Muslims would cease to be
Muslims, not in the religious sense, because that is the personal faith of each individual,
but in the political sense as citizens of the State.
Well, gentlemen, I do not wish to take up any more of your time; and thank you
again for the honour you have done to me. I shall always be guided by the principles of

29
justice and fair play without any, as is put in the political language, prejudice or ill-will; in
other words, partiality or favouritism. My guiding principle will be justice and complete
impartiality, and I am sure that with your support and co-operation, I can look forward to
Pakistan becoming one of the greatest Nations of the world.
The rst parliamentary committee
Committee on Fundamental Rights of Citizens and Minorities of Pakistan
On 12th August, 1947 the Constituent Assembly of Pakistan adopted a
resolution moved by the Honourable Mr. Liaquat Ali Khan (East Bengal: Muslim) to
appoint a sixteen member Committee on the Fundamental Rights of Citizens and
Minorities of Pakistan.
The Resolution:
“That this Assembly resolves that a committee consisting of the President and
the following member, namely:
The Honourable Sardar Abdur Rab Khan Nishtar,
Dr. Mahmud Hussain,
Mr. Bhim Sen Sachar,
Mr. M. A. Khuhro,
Sheikh Karamat Ali,
Prof. Raj Kumar Chakraverty,
Mr. Ghazanfar Ali Khan,
Mr. Prem Hari Barma,
Mr. Fazlur Rahman,
Begum Shah Nawaz,
Mr. Birat Chandra Mandal,
Dr. Ishtiaq Husain Qureshi,
Mr. Abdul Kasem Khan,
Mr. Jogendra Nath Mandal, and
the Mover,
30
 be appointed to advise this Assembly on fundamental Rights of citizens of
Pakistan and on matters relating to the minorities with power to the President to nominate
not more than seven other members who need not be Members of the Constituent
Assembly.”
Brief statement of Mr. Liaquat Ali Khan
'Sir, the resolution is self-explanatory and it is not necessary for me to make any
long speech on the motion which I have moved. It is necessary that the Constituent
Assembly should have the benefit of the advice of a committee which can examine this
question in greater detail and more conveniently than if the whole of the Constituent
Assembly were to sit together to examine the details. Power has been given under this
resolution or power is intended to be given under this resolution to the President of the
Constituent Assembly to nominate not more than seven persons as members of the
Committee that I have proposed. The object of giving this power is to be able to give
representation to those minorities that are not represented in this House and such other
interests which it may be necessary to place on this Committee. I hope, Sir, that this
motion will get the support of the Members of this Honourable House.'
The motion was unanimously adopted.
The rst right agitated in the Constituent Assembly of Pakistan: Lingua franca
On February 25, 1948 the Constituent Assembly of Pakistan met with
President, Quaid-i-Azam Mohammad Ali Jinnah in the Chair to discuss the Report of the
Committee on Rules of Procedure. Mr. Dhirendra Nath Dutta (East Bengal: General)
raised voice for 'linguistic rights' urging acknowledgement of Bengali along with
English:
“I can assure the House that I do so not in a spirit of narrow Provincialism, but,
Sir, in the spirit that this motion receives the fullest considerations at the hands of the
members present. I know, Sir, that Bengali is a Provincial language, but, so far our State is
concerned, it is the language of the majority of the people of the State and it stands on a

31
different footing therefore. Out of six crores and ninety lakhs of people inhabiting this
State, 4 crore and 40 lakhs of people speak the Bengali language. So, Sir what should be
the State language of the State?
Supporters of the move: Mr. Prem Hari Barma (East Bengal: General), Mr.
Bhupendra Kumar Datta (East Bengal: General), and Mr. Sri Chandra Chattopadhyaya
(East Bengal General)
Opponents: Mr. Liaquat Ali Khan (Prime Minister), Mr. Ghazanfar Ali Khan
(Minister for Refugees), and Alhaj Muhammad Hashim Cazder (Sindh: Muslim)
Vague opinion: Khwaja Nazimuddin (East Bengal: Muslim), and Mr.
Tamizuddin Khan (East Bengal).
Dening the ideological path and direction
While the Committee on Fundamental Rights of Citizens and Minorities could
hold only one meeting in May, 1948 to constitute its two sub-committees to tackle the
tasks separately for the fundamental rights of citizens and the matters relating to
minorities, on 7th March, 1949 during the fifth session of the Constituent Assembly of
Pakistan Mr. Liaquat Ali Khan (Prime Minister) moved a Motion titled, 'Aims and objects
of the Constitution.' Maulvi Tamizuddin presided the five day long sitting from the 7th
March till 12th March, 1949. After five days of intense debate and discussion the motion
was adopted with a majority vote on 12th March, 1949. The motion is popularly known as
'The Objectives Resolution' in subsequent political and the parliamentary parlance.
Presenting the Objectives Resolution, Prime Minister, Liaquat Ali Khan
described it as 'a most important occasion in the life of the country, next in importance
only to the achievement of independence, because by achieving independence we only
won an opportunity of building up a country and its polity in accordance with our ideals.'
Members from the opposition feared that the Objectives Resolution will convert Pakistan
in to a theocratic state. Responding to such apprehensions Liaquat Ali Khan (Prime
Minister) said, 'Authority has been delegated to the people, and to none else, and that it is

32
for the people to decide who will exercise that authority. For this reason it has been made
clear in the Resolution that the State shall exercise all its powers and authority through the
chosen representatives of the people. This is the very essence of democracy, because the
people have been recognized as the recipients of all authority and it is in them that the
power to wield it has been vested. Sir, I just now said that the people are the real recipients
of power. This naturally eliminates any danger of the establishment of a theocracy.'
Regarding the protection of fundamental rights of the citizens he maintained
that, 'It has become fashionable to guarantee certain fundamental rights, but I assure you
that it is not our intention to give these rights with one hand and take them away with the
other. I have said enough to show that we want to build up a truly liberal Government
where the greatest amount of freedom will be given to all its members.'
The other members who made speeches in favour of the motion included; Dr.
Ishtiaq Hussain Qureshi (East Bengal: Muslim), Maulana Shabbir Ahmad Osmani (East
Bengal: Muslim), Sardar Abdur Rab Khan Nishtar (West Punjab: Muslim), Sir
Muhammad Zafrulla Khan (West Punjab: Muslim), Mr. Nazir Ahmad Khan (West
Punjab: Muslim), Dr. Omar Hayat Malik (West Punjab: Muslim), Mr. Nur Ahmed (East
Bengal: Muslim), Dr. Mahmud Husain (East Bengal) and Begum Shaista Suhrawardy
Ikramullah (East Bengal: Muslim).
While opposing the motion Mr. Prem Hari Barma (East Bengal: General)
suggested to circulate the motion for eliciting public opinion by the 30th April, 1949 and
the members of the Constituent Assembly, who are entrusted with this noble work, should
have time to carefully examine the pros and cons of the proposed Objectives Resolution.
Those who spoke against the motion included; Mr. Sris Chandra Chattopadhyaya (East
Bengal: General), Mr. Bhupendra Kumar Datta (East Bengal: General), Prof. Raj Kumar
Chakraverty (East Bengal: General), Mr. Kamini Kumar Datta (East Bengal: General)
and Mr. Birat Chandra Mandal (East Bengal: General). Mian Muhammad Iftikharuddin
(West Punjab: Muslim) expressed mixed views. The speakers opposed the idea of mixing

33
religion and politics and counted its potential risks. All the seventeen amendments moved
by the opponents of the motion were rejected by 21 votes against 10 in their support.
Upon adoption of the motion, Prime Minister, Liaquat Ali Khan said that the
State will represent the organized will of the people and it will be an opportunity of
building up a country and its polity in accordance with our ideals. He said that this
resolution is a direction to the Committee that will have to prepare the draft constitution.
Major text of the Objectives Resolution had been an essential part of the
Preamble of the constitutions of 1956, 1962 and 1973. In 1985 through the 8th
Constitutional Amendment it was incorporated in the Constitution as an annexure and a
new Article 2-A was inserted in the Constitution that read, “ The principles and provisions
set out in the Objectives Resolution reproduced in the Annex are hereby made substantive
part of the Constitution and shall have effect accordingly.' However quite surprisingly the
original text of the Objective Resolution was tempered and the term 'freely' from the
following original text was dropped: 'WHEREIN adequate provision shall be made for
the minorities to freely profess and practice their religions and develop their cultures.'
After twenty five years the 18th Constitutional Amendment in April, 2010 restored the
original text by bringing back the term 'freely.'
The Objectives Resolution
“In the name of Allah, the Beneficent, the Merciful:
WHEREAS sovereignty over the entire universe belongs to God Almighty
alone and the authority which He has delegated to the State of Pakistan, through its people
for being exercised within the limits prescribed by Him is a sacred trust;
This Constituent Assembly representing the people of Pakistan resolves to

frame a Constitution for the sovereign independent State of Pakistan;

WHEREIN the State shall exercise its powers and authority through the

chosen representatives of the people;

WHEREIN the principles of democracy, freedom, equality, tolerance and

34
social justice as enunciated by Islam shall be fully observed;
WHEREIN the Muslims shall be enabled to order their lives in the individual

and collective spheres in accordance with the teachings and requirements of Islam as set

out in the Holy Quran and the Sunnah;

WHEREIN adequate provision shall be made for the minorities to freely

profess and practice their religions and develop their cultures;

WHEREIN the territories now included in or in accession with Pakistan and

such other territories as may hereafter be included in or accede to Pakistan shall form a

Federation wherein the units will be autonomous with such boundaries and limitations on

their powers and authority as may be prescribed;

WHEREIN shall be guaranteed fundamental rights including equality of

status, of opportunity and before law, social, economic and political justice, and freedom

of thought, expression, belief, faith, worship and association, subject to law and public

morality;
WHEREIN adequate provisions shall be made to safeguard the legitimate

interests of minorities and backward and depressed classes;

WHEREIN the independence of the Judiciary shall be fully secured;

WHEREIN the integrity of the territories of the Federation, its independence

and all its rights including its sovereign rights on land, sea and air shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honored

place amongst the nations of the World and make their full contribution towards

international peace and progress and happiness of humanity.”

Reports and discussions on Fundamental Rights
The Committee on the Fundamental Rights of Citizens and Minorities of

Pakistan headed by the President-Quaid-i-Azam Mohammad Ali Jinnah held its first and

35
only meeting with the founder of Pakistan on 26th May, 1948. After election of its Vice

Chairman, Liaquat Ali Khan the Committee constituted two Sub Committees to

separately deal with matters relating to:-

(1) Fundamental Rights of Citizens of Pakistan, and
(2) Matters Relating to Minorities
The Second Meeting of the Committee was held on 3rd June, 1949 and it picked

up the report of its Sub-Committee on Fundamental Rights submitted on 26th June, 1948.

The Committee decided that the consideration of the report be postponed till such time as

the Report of the Sub-Committee on Matters Relating to Minorities was ready for

consideration by the Committee and that in the meantime the Sub-Committee on

Fundamental Rights might re-examine its report in the light of Universal Declaration on

Human Rights as drafted by the United Nations Organization. The Sub-Committee on

Fundamental Rights submitted its further report on 17th June, 1949. The Third Meeting of

the Committee was held on 13th April, 1950 only to find that the report of the sub-

committee on Matters related to the Minorities was still awaited.

The Fourth Meeting of the Committee held on 8 and 9th September, 1950

decided to take-up the Report of the Sub-committee on Fundamental Rights as the Report

of Sub-Committee on Minorities had not been presented. The Committee made some

alterations and finalized the recommendations dealing with citizenship, stating the

Fundamental Rights, and giving the Directive Principles of State Policy. The Committee

authorized the Vice-Chairman, Mr. Liaquat Ali Khan to present and pilot the Report in the

Assembly. The Chairman of the Committee Mr. Tamizuddin Khan signed the Report.

Prof. Raj Kumar Chakraverty submitted his Note of Dissent on 12th September, 1950 on

two Articles related to the Fundamental Rights.

The Interim Report of the Committee was presented on 28th September 1950 in

36
the Constituent Assembly of Pakistan by Mr. Liaquat Ali Khan and was considered on 4th

and 6th October, 1950. Speaking on this occasion, Liaquat Ali Khan recalled that; 'One of

the earliest steps towards the making of the Constitution that was taken by the Constituent

Assembly was the appointment of this Committee. The task before the Committee was to

recommend fundamental rights for the citizens of Pakistan in general and rights for the

minorities in particular. The Fundamental Rights as laid down in the Report are quite

comprehensive. Within a few clauses all essential rights have been provided. Yet these are

neither of such abstract and unreal nature as not to possess legal effect of any kind nor do

they impose far-reaching and embarrassing limitations upon the law-making capacity of

the future legislatures by creating a situation in which a large number of laws may be

declared ultra vires of the Constitution.'

During the discussion on the report many members urged to expand the

Fundamental Rights and include at least three more namely; right to equal opportunity,

right to work and right to health. Mian Iftikharuddin termed the Interim Report 'miser' as

the rights offered were even less than the Objectives Resolution. The opposition member

Prof. Raj Kumar Chakraverty exposed the reason of delay in presenting the report of the

Sub-Committee on Matters related to Minorities saying that the delay was over the

unsettled proposal on 'joint' or 'separate' electorate in Pakistan. He urged not to take any

decision on the Fundamental Rights as the both issues were interlinked and will impact

each other.
The Sub-Committee on Matters related to Minorities administered a

questionnaire among the interested ones to respond on the following:

(1) What should be the political safeguards of a minority-

(a) In the Centre, and

(b) In the Province

37
 (2) What should be the economic safeguards of a minority
(a) In the Centre, and
(b) In the Province
(3) What safeguards should be provided for a minority with regard to matters-
(a) Religious
(b) Educational, and
(c) Social and Cultural
(4) What methods are suggested to make the safeguards effective?
(5) Should any of the safeguards be eliminated later, and if so, how, when and

under what circumstances?

(6) Any other remarks or suggestions with regard to safeguards for a minority.

The Sub-Committee completed its report with many notes of dissent.

Two years later on 22nd December, 1952 Sardar Abdur Rab Khan Nishtar

(Punjab: Muslim) presentation the Final Report of the Committee on Fundamental Rights

of Citizens of Pakistan and on Matters Relating to Minorities.

While presenting the report Sardar Abdur Rab Khan Nishtar said, 'So far as the

safeguards for the minorities are concerned, the Sub-Committee concerned had issued a

questionnaire to various people and organization in the country. After receipt of the

opinions-some amounted to books- the whole material was tabulated and considered and

ultimately it was decided that the matter should be submitted to the main Committee. The

main Committee after examining different point of view made this Report which finalizes

the task which was entrusted to the Committee. In this Report, Sir, you will find that a

couple of additional fundamental rights have been recommended. The matters dealt with

in these fundamental rights were considered necessary as safeguards for the minorities

but in view of their general nature the Committee considered that they should form part of

the Constitution as Fundamental Rights.'

38
 After four days discussion on 19th, 24th & 31st August, and 7th September, 1954

the report was adopted. The ecstasy of inching towards the final draft of the Constitution

remained short lived because just before the draft could be placed in the House for

approval, the Constituent Assembly was dissolved by the then Governor General,

Ghulam Muhammad on 24th October, 1954. The President of the Assembly Maulvi

Tamizuddin challenged the dissolution in the Sindh Chief Court and won the case. The

Government challenged the decision in the Federal Court that endorsed the death of the

Assembly. The second 80-Member Constituent Assembly of Pakistan came in to being on

28th May, 1955 through an indirect election for which the provincial assemblies were

made the Electoral College. Only fifteen (19 percent) members of the First Constituent

Assembly were able to return in the Second Constituent Assembly that changed the entire

complexion of the debates on the issues of Fundamental Rights. Maulvi Tamizuddin

Khan the second President of the First Constituent Assembly, who also headed the

Committee on Fundamental Rights of Citizens of Pakistan and on Matters Relating to

Minorities, didn't return in the Second Constituent Assembly.

39
Composition: The Committee on Fundamental Rights of Citizens of Pakistan
and on Matters Relating to Minorities (1947-1954)

First Chairman Second Chairman

Mr. Mohammad Ali Jinnah Mr. Tamizuddin Khan

Vice-Chairman Vice-Chairman
Mr. Liaquat Ali Khan Mr. Khwaja Nazimuddin
(Appointed in lieu of
Mr. Liaquat Ali Khan
after his assassination in 1951)

Members nominated by the President:

Sardar Abdur Rab Khan Nishtar Dr. Mahmud Hussain Mr. Bhim Sen Sachar,
(Resigned from the Assembly
was replaced by
Qazi Mohammad Isa)

40
 Mr. M. A. Khuhro Mr. Ghazanfar Ali Khan, Mr. Jamshed Nusserwanji Mehta
(Resigned from the Assembly
replaced by
Khan Sardar Bahadur Khan)

Begum Shah Nawaz Sir Mohammad Zafrulla Khan Mr. Fazlur Rahman

Khwaja Shahbuddin Mr. Abdul Kasem Khan Dr. Ishtiaq Husain Qureshi
(Resigned from the Committee:
replacement Dr. A. M. Malik)

Dewan Bahadur S. P. Singha Mr. Jogendra Nath Mandal Mr. C. E. Gibbon

(In November 1949 after his death (Left the country in 1950
Mr. Rallia Ram was appointed) after resign)

41
Chapter-III
The First Republic: Short Lived
Fundamental Rights

42
43
A
fter nine years of rigorous efforts to cobble-up a viable social contract,
Pakistan finally became 'the Republic' on 23rd March 1956 upon adoption of
its first Constitution. The joy of the First Republic unfortunately remained
short lived because only after 928 days on 7th October, 1958, the then President, Major
General (R) Iskander Mirza staged coup d'etat and abrogated the Constitution-which he
himself had authenticated. In this way the fruits of freedom were plucked prematurely and
nobody was able to actually taste them. The Pakistani dream of empowered citizenry was
diluted and destroyed.
Even before the adoption of the 1956 Constitution the Second Constituent
Assembly had destroyed the compositional diversity of the country by merging the
historic provinces and the former princely administered state in to the East Pakistan and
the West Pakistan through the One Unit scheme legislated on 30th September, 1955 and
operationalized on 14th October, 1955. In quest for parity between geographically apart
and demographically different two wings of the country the democratic principle of 'adult
franchise' was also compromised.
The draft Constitution was introduced in the Constituent Assembly on 9th
January 1956 and was passed on 29th February, 1956. The Assembly discussed the chapter
on Fundamental Rights for three days on 2nd-4th February, 1956. The debates once again
revolved around the very nature of the State and its alleged deviation from the vision
bestowed by the founding fathers. In the context of fundamental rights the relevant
chapter included twenty Articles. Out of these the Article 3 provided a definition of the
State and the Article 22 explained the powers of the Supreme Court for enforcement of
these rights. Unfortunately contrary to the suggestion made by the Committee on
Fundamental Rights the Special Areas (FATA) was excluded from the ambit of rights.
If we compare the rights offered in the Constitution of 1956 with the proposals

44
passed by the First Constituent Assembly on the recommendations of the Committee on
the Fundamental Rights of Citizens and Minorities of Pakistan the following picture
emerge:
Comparative analysis:

institution
45
 The language and approach towards the fundamental rights in the
recommendations of the Committee on the Fundamental Rights of Citizens and
Minorities of Pakistan was more affirmative. Nevertheless after numerous ideological
contestations the Constitution of 1956 had guaranteed the following Fundamental Rights:
Article 3: Definition of the State
In this Part, unless the context otherwise requires, "the State" includes the
Federal Government, Parliament, the Provincial Governments, the Provincial
Legislatures, and all local or other authorities in Pakistan.
Article 4: Laws inconsistent with or in derogation of the fundamental rights to be void

(1) Any existing law, or any custom or usage having the force of law, in so far as
it is inconsistent with the provisions of this Part, shall, to the extent of such inconsistency,
be void.
(2) The State shall not make any law which takes or abridges the rights
conferred by this Part, and any law in contravention of this clause shall, to the extent of
such contravention, be void.
(3) Nothing in this Article shall apply to any law relating to the members of the
Armed Forces, or the Forces charged with the maintenance of public order, for the
purpose of ensuring the proper discharge of their duties or the maintenance of discipline
among them.
Article 5: Equality before law
(1) All citizens are equal before law and are entitled to equal protection of law.

46
 (2) No person shall be deprived of life or liberty, save in accordance with law.
Article 6: Protection against retrospective offences or punishment
No person shall be punished for an act which was not punishable by law when the
act was done, nor shall any person be subjected to a punishment greater than that prescribed
by law for an offence when the offence was committed.
Article 7: Safeguards as to arrest and detention
(1) No person who is arrested shall be detained in custody without being
informed, as soon as may be, 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.
(2) Every person who is arrested and detained in custody shall be produced before
the nearest magistrate within a period of twenty-four hours of such arrest, excluding the
time necessary for the journey from the place of arrest to the court of the magistrate, and no
such person shall be detained in custody beyond the said period without the authority of a
magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person -
(a) who for the time being is an enemy alien; or
(b) who is arrested or detained under any law providing for preventive
detention.
(4) No law providing for preventive detention shall authorize the detention of a
person for a period exceeding three months unless the appropriate Advisory Board has
reported before the expiration of the said period of three months that there is, in its opinion,
sufficient cause for such detention.
Explanation: In this clause "the appropriate Advisory Board" means, in the case
of a person detained under a Central Act or an Act of Parliament, a Board consisting of
persons appointed by the Chief justice of Pakistan, or, in the case of a person detained under
a Provincial Act or an Act of a Provincial Legislature, a Board consisting of persons
appointed by the Chief Justice of the High Court for the Province.

47
 (5) When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall, as soon as may
be, communicate to such person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation against the order:
Provided that the authority making any such order may refuse to disclose facts
which such authority considers it to be against the public interest to disclose.
Article 8: Freedom of speech
Every citizen shall have the right to freedom of speech and expression, subject
to any reasonable restrictions imposed by law in the interest of the security of Pakistan,
friendly relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an offence.
Article 9: Freedom of assembly
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.
Article 10: Freedom of association
Every citizen shall have the right to form associations or unions, subject to any
reasonable restrictions imposed by law in the interest of morality or public order.
Article 11: Freedom of movement and right to hold and dispose off property
Subject to any reasonable restrictions imposed by law in the public interest,
every citizen shall have the right -
(a) to move freely throughout Pakistan and to reside and settle in any part
thereof,
(b) to acquire, hold and dispose of property.
Article 12: Freedom of trade, business or profession
Every citizen, possessing such qualifications, if any, as may be prescribed by
law in relation to his profession or occupation, shall have the right to enter upon any
lawful profession or occupation, and to conduct any lawful trade or business:

48
 Provided that nothing in this Article shall prevent -
(a) the regulation of any trade or profession by a licensing system, or
(b) the carrying on, by the Federal or a Provincial Government or by a
corporation controlled by any such Government, of any trade, business, industry or
service, to the exclusion, complete or partial, of other persons.
Article 13: Safeguards as to educational institutions in respect of religion etc.
(1) No person attending any educational institution shall be required to receive
religious instruction, or take part in any religious ceremony, or attend religious worship, if
such instruction, ceremony or worship relates to a religion other than his own.
(2) No religious community or denomination shall be prevented from
providing religious instruction for pupils of that community or denomination in any
educational institution maintained wholly by that community or denomination.
(3) No citizen shall be denied admission to any educational institution receiving
aid from public revenues on the ground only of race, religion, caste, or place of birth:
Provided that nothing in this Article shall prevent any public authority from
making provision for the advancement of any socially or educationally backward class of
citizens.
(4) In respect of any religious institution, there shall be no discrimination
against any community in the granting of exemption or concession in relation to taxation.
(5) Every religious community or denomination shall have the right to establish
and maintain educational institutions of its own choice, and the State shall not deny
recognition to any such institution on the ground only that the management of such
institution vests in that community or denomination.
Article 14: Non-discrimination in respect of access to public places
(1) In respect of access to places of public entertainment or resort, not intended
for religious purposes only, there shall be no discrimination against any citizen on the
ground only of race, religion, caste, sex or place of birth.

49
 (2) Nothing in this Article shall prevent the making of any special provision for
women.
Article 15: Protection of property rights
(1) No person shall be deprived of his property save. In accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a
public purpose, and save by the authority of law which provides for compensation
therefore and either fixes the amount of compensation or specifies the principles on which
and the manner in which compensation is to be determined and given.
(3) Nothing in this Article shall affect the validity of-
(a) any existing law, or
(b) any law permitting the compulsory acquisition or taking possession of
any property for preventing danger to life, property or public health, or
(c) any law relating to the administration or acquisition of any property which
is or is deemed to be evacuee property under any law, or
(d) any law providing for the taking over by the State for a limited period of
the management of any property for the benefit of its owner.
(4) In clauses (2) and (3), "property" shall mean immovable property, or any
commercial or industrial undertaking, or any interest in any such undertaking.
Article 16: Slavery and forced labour prohibited
(1) No person shall be held in slavery.
(2) All forms of forced labour are prohibited, but the State may require
compulsory service for public purposes.
Article 17: Safeguards against discrimination in services
(1) No citizen otherwise qualified for appointment in the service of Pakistan
shall be discriminated against in respect of any such appointment on the ground only of
race, religion, caste, sex, residence or place of birth:
Provided that for a period of fifteen years from the Constitution Day, posts may

50
be reserved for persons belonging to any class or area to secure their adequate
representation in the service of Pakistan.
Provided further that in the interest of the said service, specified posts or
services may be reserved for members of either sex.
(2) Nothing in clause (1) shall prevent any Provincial Government or any local
or other authority from prescribing, in relation to any class of service under that
Government or authority, conditions as to residence in the Province prior to appointment
under that Government or authority.
Article 18: Freedom to profess religion and to manage religious institutions
Subject to law, public order and morality -
(a) every citizen has the right to profess, practice and propagate any religion;
and
(b) every religious denomination and every sect thereof has the right to
establish, maintain and manage its religious institutions.
Article 19: Preservation of culture, script and language
Any section of citizens having a distinct language, script or culture shall have
the right to preserve the same.
Article 20: Abolition of untouchability
Untouchability is abolished and its practice in any forms forbidden and shall be
declared by law to be an offence.
Article 21: Safeguards against taxation for purposes of any particular religion
No person shall be compelled to pay any special tax the proceeds of which are to
be spent on the propagation or maintenance of any religion other than his own.
Article 22: Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue to any person or authority,

51
 including in a appropriate cases any Government, directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part.
(3) The right guaranteed by this Article shall not be suspended except as
otherwise provided by the Constitution.
(4) The provisions of this Article shall have no application in relation to the
Special Areas.
The Second Republic: under a circumvented constitution and Fundamental
Rights
While it had taken nine long years of parliamentary conversations in the
Committees and parliamentary debates and discussions from 1947 up to 1956 to become a
Republic on 23rd March, 1956, the military ruler General Ayub Khan opted for a rather
convenient route to circumvent a constitution. The Constitution of 1962 is one of the rare
constitutions in the world that ignored the very notion of the justiciable fundamental
rights.
On 17th February, 1960 a ten member Constitution Commission headed by
former Chief Justice of Pakistan, Justice Muhammad Shahabuddin was formed with quite
visible anti-parliamentary democracy Terms of Reference (TORs). The TORs were to
examine the causes of failure of Parliamentary system and recommend a new system
keeping in view the: (a) genius of people, (b) standard of education, (c) internal
conditions of the country, and (d) need of development.
The Commission collected 6,269 replies to its questionnaire and interviewed
565 persons in both (the East and the West Pakistan) wings of the country and submitted
its report on the 6th May, 1961 to the President. Later the so called cabinet of talent and
some of its committees examined the report and came-up with a draft constitution that
was promulgated on 1st March, 1962 through a speech by the President. The so-called

52
Constitution of 1962 was to become effective from 8th June, 1962. The entire exercise was
completed within 742 days.
Even the hand-picked Constitution Commission had recommended retaining
the Fundamental Rights from the abrogated Constitution of 1956 but the regime opted to
reduce the very notion of citizens' rights to mere principles of Law-making and of Policy.
This highlights the pejorative attitude of usurpers towards a rights based polity. The then
president, General Ayub Khan said in his speech that, “fundamental rights have been
made the principles of law-making and every care has been taken that the law-makers
observe them” adding “the responsibility for ensuring that no law is made which is
contrary to fundamental human rights has been placed upon the law-makers. The military
ruler also said that these principles have been enunciated for the law-makers so that they
are under obligation to observe them. In total there were fifteen such principles of law-
making set out in the Constitution.
The President General Ayub Khan's logic of non-justiciable rights in his own
word was that; 'the Fundamental Rights have been secured in the Constitution without the
complication of all laws never reaching the stage of complete certainty because they
remain perpetually susceptible to challenge in a Court of Law. Though it is frequently said
that this challenge guarantees rights of the citizens, in actual practice it is usually only a
rich litigant who can afford to engage the best available legal talent to throw out a
challenge to a law for getting rid of something that operates to his disadvantage,
irrespective of whether it is to the advantage of the community at large or not, and
frequently holds up indefinitely the implementation of beneficial schemes. The scheme
adopted in the Constitution brings our position on the same lines as the position existing in
England.'
The Constitution of 1962 enlisted the following Principles of Law-making:
Article 5: Principles of Law-making
The Principles set out in this Chapter shall be known as the Principles of Law-

53
making and it is the responsibility of each legislature to ensure that a proposed law is not
made by it if the proposed law disregards, violates or is otherwise not in accordance with
those Principles.
Article 6: Responsibility with respect to Principles of Law-making
(1) The responsibility of deciding whether a proposed law does or does not
disregard or violate, or is or is not otherwise in accordance with, the Principles of Law-
making is that of the legislature concerned, but the National Assembly, a Provincial
Assembly, the President or the Governor of a Province may refer to the Advisory Council
of Islamic Ideology for advice any question that arises as to whether a proposed law
disregards or violates, or is otherwise not in accordance with, those Principles.
(2) The validity of a law shall not be called in question on the ground that the
law disregards, violates or is otherwise not in accordance with the Principles of Law-
making.
Principles of law-making
1. Islam
No law should be repugnant to Islam.
2. Equality of Citizens
All citizens should be equal before the law, be entitled to equal protection of the
law and be treated alike in all respects.
This Principle may be departed from where -
In the interest of equality itself, it is necessary to compensate for existing
inequalities, whether natural, social, economic or of any other kind;
In the interest of the proper discharge of public functions, it is necessary -
To give to persons performing public functions powers, protections or facilities
that are not given to other persons; or
To impose on persons performing public functions obligations or disciplinary
controls that are not imposed on other persons; or

54
 It is necessary in the interest of the security of Pakistan or otherwise in the
interest of the State to depart from this Principle,
But, where this Principle is departed from, it should be ensured that no citizen
gets an undue preference over another citizen and no citizen is placed under a disability,
liability or obligation that does not apply to other citizens of the same category.
This Principle shall not be construed as preventing a legislature from making
laws different from laws made by any other legislature.
3. Freedom of Expression
No law should impose any restriction on the freedom of a citizen to give
expression to his thoughts.
This Principle may be departed from where it is necessary so to do -
In the interest of the security of Pakistan;
For the purpose of ensuring friendly relations with foreign States;
For the purpose of ensuring the proper administration of justice;
In the interest of public order;
For the purpose of preventing the commission of offences;
In the interest of decency or morality;
For the purpose of granting privilege, in proper cases, to particular proceedings;
or
For the purpose of protecting persons in relation to their reputation.
4. Freedom of Association
No law should impose any restriction on the freedom of citizens to assemble
peacefully and without arms, or to form associations or unions.
This Principle may be departed from where it is necessary so to do-
In the interest of the security of Pakistan;
In the interest of public order;
For the purpose of preventing the commission of offences;

55
 In the interest of decency or morality; or
For the purpose of protecting persons in relation to their health or property.
5. Freedom of Movement and Right to Acquire Property
No law should impose any restriction-
On the freedom of a citizen to move throughout Pakistan or to reside or settle in
any part of Pakistan; or
On the freedom of a citizen to acquire, hold or dispose of property in any part of
Pakistan.
This Principle may be departed from where it is necessary so to do in the public
interest.
6. Freedom to Follow Vocation
No law should impose any restriction on the freedom of a citizen to engage in
any profession, trade, business, occupation or employment, or otherwise to follow the
vocation of his choice.
This Principle may be departed from where it is necessary so to do-
In the interest of the security of Pakistan;
In the interest of decency or morality;
For the purpose of regulating, in the public interest, any profession or trade by a
licensing system;
For the purpose of ensuring, in the public interest, that, where a profession or
trade requires special qualifications or skill, only persons possessing those qualifications
or that skill engage in the profession or trade;
For the purpose of ensuring, in the public interest, that a trade, business,
industry or service may be carried on by or on behalf of the State or an organ of the State to
the exclusion, in whole or in part, of other persons; or
For the purpose of ensuring, in the public interest, the development of Pakistan
and of its resources and industries.

56
7. Freedom of Religion
No law should-
Prevent the members of a religious community or denomination from
professing, practicing or propagating, or from providing instruction in, their religion, or
from conducting institutions for the purposes of or in connection with their religion;
Require any person to receive religious instruction, or to attend a religious
ceremony or religious worship, relating to a religion other than his own;
Impose on any person a tax the proceeds of which are to be applied for the
purpose of a religion other than his own;
Discriminate between religious institutions in the granting of exemptions or
concessions in relation to any tax; or
Authorize the expenditure of public moneys for the benefits of a particular
religious community or denomination except moneys raised for that purpose.
8. Safeguards in Relation to Arrest and Detention
A law authorizing the arrest or detention of persons should ensure that a person
arrested or detained under the law-
Is informed of the grounds of his arrest or detention at the time he is arrested or
detained or as soon thereafter as is practicable;
Is taken before the nearest Magistrate within a period of twenty-four hours after
he is arrested or detained, excluding the time necessary to convey him to the Magistrate;
Is released from custody at the expiration of that period unless further detention
is authorized by a Magistrate; and
Is at liberty to consult, and to be represented and defended by a legal
practitioner of his choice.
This Principle does not apply to a law authorizing the arrest or detention of
enemy aliens or providing for preventive detention, but law providing for preventive
detention-

57
 Should be made only in the interest of the security of Pakistan or of public
safety;
Should ensure that (except where the President or the Governor of a Province,
in the interest of the security of Pakistan, directs otherwise) a person detained under the
law is informed of the grounds of his detention at the time he is detained or as soon
thereafter as is practicable; and
Should ensure that a person is not detained under the law for a period longer
than three months without the authority of a Board consisting of
Where the law is a Central Law - a Judge of the Supreme Court, who shall be
nominated by the Chief Justice of that Court, and another senior officer in the service of
Pakistan, who shall be nominated by the President; or
Where the law is a Provincial Law - a Judge of the High Court of the Province
concerned, who shall be nominated by the Chief Justice of that Court, and another senior
officer in the service of Pakistan, who shall be nominated by the Government of that
Province.
9. Protection against Retrospective Punishment
No law should authorize-
The punishment of a person for an act or omission that was not punishable by
law at the time of the act or omission; or
The punishment of a person 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.
10. Regulation of Compulsory Acquisition of Property
No law should authorize the compulsory acquisition, or the compulsory taking
possession, of property except for a public purpose.
A law that authorizes the compulsory acquisition, or the compulsory taking
possession, of property should provide for the payment of compensation for the property,

58
and either fix the amount of the compensation or specify the principles on which, and the
manner in which, the compensation is to be determined.
These Principles may be departed from-
For the purpose of permitting the destruction, the acquisition or the taking
possession of property in order to prevent or reduce danger to life, health or property;
For the purpose of ensuring the proper management, for a limited period, of any
property for the benefit of its owner; or
In relation to property which is or is deemed to be evacuee property under any
law.
For the purpose of these Principles, "public purpose" includes the purpose of
acquiring, in the public interest, any industrial, commercial or other undertaking which is
of benefit to the public, any interest in such an undertaking or any land for use in
connection with such an undertaking.
11. Protection against Forced Labour
No law should permit forced labour in any form.
This Principle may be departed from in relation to-
The punishment of persons for offences against the law; and
The compulsory service of persons for public purposes or otherwise in the
public interest (whether by way of conscription or in any other way).
12. Public Educational Institutions
No law should, on the ground of race, religion, caste or place of birth, deprive
any citizen of the right to attend any educational institution that is receiving aid from
public revenues.
This Principle may be departed from for the purpose of ensuring that a class of
citizens that educationally backward shares in available educational facilities.
13. Access to Public Places
No law should deny to any person access to a public place (other than a place

59
intended solely for religious purposes) on the ground of race, religion, caste or place of
birth.
14. Protection of Languages, Scripts and Cultures
No law should prevent any section of the community from having a distinct
language, script or culture of its own.
15. Protection against Slavery
No law should permit or in any way facilitate the introduction into Pakistan of
slavery in any form.
16. Practice of Untouchability Forbidden
No law should permit or in any way facilitate the introduction into Pakistan of
the practice of untouchability in any form.
With the promulgation of the Constitution on 8th June, 1962 the third 156-
member National Assembly indirectly elected through 80,000 Basic Democrats also
started working. On 24th June, 1962 eight political leaders including; Mr. Nurul Amin, Mr.
Ataur Rahman Khan, Mr. Hamidul Huq Chowdhury, Mr. Abu Husain Sarkar, Mr.
Mahmud Ali, Sheikh Mujibur Rahman, Mr. Yusuf Ali Chowdhury and Pir Mohsenuddin-
all hailing from the East Pakistan, through a public statement along with many other
demands exhorted, 'It is necessary that Fundamental Rights as enumerated in the 1956
Constitution be incorporated as such in the present Constitution, and made justiciable,
instead of enumerating them as "principles of law-making" as in the present document.'
274 days after the functionality of the rights-less Constitution of 1962 the then
Law Minister, Khurshid Ahmad introduced the Constitution (First Amendment) Bill on 9th
March, 1963 to 'bring back the Fundamental Rights' in the Constitution. The occasion
opened up a window of opportunity to put forward political arguments against 'single-
individual Constitution thrust upon the nation', denial of federalism, suffocating
atmosphere of Military rule, other usurped rights like the denial of 'adult franchise' to the
citizens of Pakistan on the name of Basic Democracy and the very nature of the State and

60
its ideological orientation. On 18th December, 1963 Mr. Abdul Bari (West Pakistan)
presented to the Leader of the House, a cartload of petitions signed by 514,543 Pakistanis
from both the wings of Pakistan, demanding the fundamental right of direct adult
franchise, during the next election. However the Speaker didn't allow saying, 'I am afraid,
our rules do not permit. This is a matter which has nothing to do with legislative business.'
Many speakers were able to question the efficacy of Fundamental Rights in
presence of repressive and restrictive laws like the Political Parties Act, the West Pakistan
Maintenance of Public Ordinance, the Press and Publication Ordinance, the Security Act,
F.C. R. (Frontier Crimes Regulation) Extension Ordinance, the Industrial Disputes
Ordinance and changes in the West Pakistan Criminal Law Amendment Act. The vocal
legislators were also able to get the proposed amendment referred to a Select Committee
to make some improvements. On 18th March, 1963 the then Law Minister Mr. Khursheed
Ahmad said in the House that the purpose and intention of the Amendment was as
following:
Ÿ The first change which is sought to be brought about the First Amendment
is in the nomenclature of the State,
Ÿ The second is the conversion of the Principles of Law-making into
Fundamental Rights,
Ÿ The third that the consequential provisions would make these
Fundamental Rights justiciable and enforceable, and
Ÿ The fourth part is the enlargement of the jurisdiction of the courts for
giving adequate relief where there is a violation of Fundamental Rights.
The Law Minister confessed that, 'there were certain exceptions also contained
in the Bill-for the application of the Fundamental Rights. These exceptions principally
covered three things. Firstly, the Fundamental Rights, as embodied in the First
Amendment would have no application on the Defence Forces and Forces which are
charged with the maintenance of law and order or to their discipline. Interestingly the

61
Constitution of 1956 also had a similar clause. The second exception was that all laws
which were made on or after the 7th October, 1958 the day Martial Law was imposed
would not be void on account of any conflict with the Fundamental Rights. The third part
was that the Fundamental Rights, embodied in the present Bill, which confer jurisdiction
on the courts to enforce these rights would not be applicable in regard to the Tribal Areas.'
During the debate many legislators exhibited their nostalgia about the
Fundamental Rights guaranteed in the short-lived Constitution of 1956 and asked to
'import them back'. Some also asked for not going down the benchmarks set by the United
Nations Charter of Human Rights to which Pakistan was a signatory. The inconclusive
debate on the First Amendment to the Constitution of 1962 was resumed on 21st
December, 1963 and after four-day debate and discussion the Amendment was carried on
24th December, 1963. It received the assent of the President on 10th January, 1964.
The Amendment acknowledged the following 19 Fundamental Rights
including;
1. Security of Person,
2. Safeguards as to arrest and detention,
3. Slavery and forced labour prohibited,
4. Protection against retrospective punishment,
5. Freedom of movement,
6. Freedom of assembly,
7. Freedom of association,

8. Freedom of trade, business or profession,

9. Freedom of speech,

10. Freedom to profess religion and to manage religious institutions,

11. Safeguards against taxation for purposes of any particular religion,

12. Safeguard as to educational institutions in respect of religion etc.,

13. Provision as to property,

14. Protection of property rights,

15. Equality of citizens,

62
 16. Non-discrimination in respect of access to public places,
17. Safeguards against discrimination in services,
18. Preservation of culture, script and language, and
19. Abolition of untouchability.
The 'Proposed Republic': again by an order of a military ruler
General Agha Muhammad Yahya Khan imposed Martial Law on 25th March,
1969 and abrogated the so-called Constitution of 1962-what an irony because the self-
tailored constitution of one military ruler was not even acceptable to another military
ruler. On 28th March, 1970 through a media broadcast he announced his own Legal
Framework Order (LFO) as a mandatory prescription for the yet to be elected first-ever
Assembly on the basis of adult franchise in Pakistan.
The prescription laid down certain basic principles for the future constitution of
Pakistan, including the following in the context of fundamental rights; 'The …..
fundamental principle of the future constitution is that it must be a democratic one in
which such basic ingredients of democracy as free and periodic elections on the basis of
population and direct adult franchise are included. Further, the constitution must include
the independence of judiciary, and the fundamental rights of the citizens.' Regarding the
fundamental principles for the future constitution the LFO said, 'the Constitution shall be
so framed as to embody the following fundamental principles:-
Ÿ the Fundamental Rights of the citizens shall be laid down and guaranteed
and
Ÿ the independence of the judiciary in the matter of dispensation of justice and
enforcement of the fundamental rights shall be secured.
The Constitution shall contain, in its preamble, an affirmation that the
minorities shall be enabled to profess and practice their religions freely and to enjoy all
rights, privileges and protection due to them as citizens of Pakistan. The post-election
developments especially the denial of timely transfer of power to the elected

63
representatives resulted in the East Pakistan tragedy and the desire for yet another dictated
constitution remained unfulfilled.
The 'Interim Republic'
The Interim Constitution of the Islamic Republic of Pakistan was adopted on
17th April, 1972 and enforced on the 21st April, 1972 to provide a temporary legal umbrella
to run the country pending the permanent Constitution. The Interim Constitution
contained a Chapter on Fundamental Rights and Principles of Policy (Article 6 to Article
49). However there was no provision about any recourse to the Court upon their denial.
Therefore these rights remained only cosmetic. In terms of the Fundamental Rights it
provided for the following nineteen-rights:
1. Laws inconsistent with or in derogation of fundamental rights to be
void
2. Security of person
3. Safeguards as to arrest and detention
4. Slavery and forced labour prohibited
5. Protection against retrospective punishment
6. Freedom of movement
7. Freedom of assembly
8. Freedom of association
9. Freedom of trade, business or profession
10. Freedom of speech
11. Freedom to profess religion and to manage religious institutions
12. Safeguards against taxation for purpose of any particular religion
13. Safeguard as to educational institutions in respect of religion etc
14. Provision as to property
15. Protection of property rights
16. Equality of citizens

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 17. Non-discrimination in services and elective offices
18. Preservation of culture , script and language
19. Abolition of untouchability
The story of the first and the second republic confirms that the Parliament of
Pakistan worked hard to offer rights based social contract to the people and even in worst
of the circumstances it never faltered on its vision of a federal-democratic country with
citizens at its heart.

65
Chapter-IV
The Third Republic: We the People

66
Political Leadership after signing the Constitutional Accord - 1972

67
T
he Constitution of 1973 is the first 'social contract' authored and approved by

the directly elected representatives of the people on the basis of adult

franchise. The Constitution of 1973 was drafted by a 25-member Constitution

Committee constituted by the National Assembly of Pakistan through a Resolution

passed on 17th April, 1972 to prepare the draft of a permanent Constitution by the 1st

August, 1972. The Committee met for the first time on 22nd April, 1972.

In its second meeting, commencing from 18th May, 1972 the Committee held

general discussions regarding the preamble, the introductory provisions, Fundamental

Rights, Principles of Policy, the Judicature and the Services of Pakistan. After

deliberating on various proposals and amendments by the members, the Chairman of the

Committee was asked to submit a draft of the Constitution for consideration by the

Committee in the latter half of June, 1972.

During it deliberations the Committee decided to incorporate in the Preamble

the Resolution passed by the first Constituent Assembly on 12th March, 1949, along with

recitals to reflect the struggle waged by the people for a return to democratic and

constitutional government and for achieving national unity by creating an egalitarian

society through a new order. The Preamble further reaffirmed the Quaid-i-Azam's

declaration that Pakistan would be democratic State based on the Islamic Principles of

social justice.
The Constitutional Accord of 20th October, 1972
The Constitutional accord covered the most ticklish and fundamental issues

pertaining to the future Constitution. In terms of the Fundamental Rights its clause 45

maintained that the judiciary and Election Commission shall be independent of the

68
executive; and the fundamental rights shall be guaranteed and proper safeguard shall be

provided against preventive detention.

The final report of the Constitution Committee in the context of Fundamental

Rights and Principles of Policy says:

1. All Fundamental Rights included in previous constitutions have been

retained and certain new provisions have been introduced regarding the dignity

of man and freedom of political parties.

2. The Committee in particular deliberated upon the provisions relating

to civil liberties and property rights. In respect of civil liberties the draft

Constitution reinforced the right of thee individual and restricted the

application of detention laws.

3. A strong view was expressed that unless rights to property were made

subject to the public interest the country would not achieve social and economic

justice. Previous Constitutions paid only lip service to such justice, and the

protection given to the property had proved a dyke to hold back reforms.

Accordingly, the Parliament had been empowered to make laws for resumption

and confiscation of property acquired by unfair means. It had similarly been

empowered to legislate for the acquisition of property without compensation

for the purpose of providing education, medical assistance, housing facilities

and maintenance to sick and indigent persons; and in all other causes the

compensation determined according to law shall be final and in no event called

in question in any court.

4. As to the principles of policy, it provided that the President of

Pakistan and the Governors of each province were required to prepare and lay

before the appropriate legislature a report on their observance and

implementation. The report was made open to debate in the Assembly. This

69
 provision gave life to the principles of Policy, which were formerly in cold

storage. The assumption was that through these parliamentary mechanisms the

policies of governments will be brought under the continuous review by the

legislature.

Fundamental Rights related excerpts from the Notes of Dissents in the Constitution

Committee

For the sake of history the Constitution Committee had provided for recording

'Notes of Dissents' on issues and concerns that couldn't yield consensus of the Committee.

There were at least five such Notes of Dissent that directly dealt with the questions related

to Fundamental Rights of the citizens.

1. Sardar Shakat Hayat Khan, Maulana Shah Ahmed Noorani, Prof.

Ghafoor Ahmed, Amirzada Khan and Maulana Mufti Mehmood criticized the

refusal of the Committee to take a decision for the removal of protection given

to the Political Parties Act from the draft Constitution. They opined that this

was fraught with grave consequences, they urged as the said law denied the

legislators their fundamental rights of the freedom of conscience and

association. They termed it as the relic of a dictatorial regime that must be

dispensed with.

2. The second Note of Dissent by Sardar Shaukat Hayat Khan was

about the Article 23 of the draft regarding Protection of Property Rights. It

suggested that no property shall be acquired but in Public Weal (Public

Welfare) and in accordance with law which should fix a compensation in such a

way that an equitable balance in established between the public interest and that

of those effected. In case of dispute the aggrieved party shall have access only

to the High Court in original jurisdiction.

3. The third Note of Dissent was by Prof. Ghafoor Ahmad and Maulana

70
 Shah Ahmad Noorani that the proposed draft constitution was disappointing

from the points of view of Islamic Provisions, Fundamental Rights,

Independent Judiciary, free and impartial elections, economic and social justice

and parliamentary democracy. Existence of various self-defeating provisions

in the proposed draft have result in virtually snatching away even those rights

and privileges which have been guaranteed in it under various chapters.

4. The Note of Dissent by Mr. Amirzada Khan was about democratizing

the provisions of preventive detention.

5. The Note of Dissent by Mr. Mahmud Ali Kasuri was about lack of

firm indication in the constitution that a socialist society is the objective. The

provision in Article 23 of the draft Constitution that in certain circumstances

citizens may be deprived of their property without compensation is not

necessarily a pointer in the direction of a socialist society. It could in fact

provide opportunity for victimization of individuals who are unacceptable to

the establishment.
Mr. Abdul Hafeez Pirzada, Chairman of the Constitution Committee on 31st

December, 1972 upon laying the report of the Committee along with presenting a draft of

the Constitution said; 'With regard to the Fundamental Rights I would only like to say two

things which are the real major departure. First of all, all the fundamental rights given in

the previous Constitutions have been continued. There are one or two additional ones

given here but the main departure that you will find here, Sir, is firstly in respect of civil

liberties and secondly in respect of rights of property. Both are absolutely necessary

because on the fundamental right that has been added here says: Human dignity-dignity of

human being is-inviolable and consequently there has been considerable abridgment of

the powers in respect of preventive detention.

Salient features are that a person who is detained under any preventive law on

71
the accusation that he is a threat to public order cannot be detained for more than eight

months in twenty-four months and in other cases such as Security of Pakistan or threat to

the integrity of Pakistan he cannot be detained for more than one year in a period of

twenty-four months.

Further, new types of Advisory Board have been provided. Advisory Boards

that have been provided are to comprise of three Judges or ex-Judges of the Supreme

Court or High Court. In respect of a federal law the Advisory Board shall comprise three

Judges-sitting Judges or retired Judges either of the Supreme Court or the High Court to

be appointed by the Chief Justice and in respect of a provincial detention order to be

comprised of the Judges of the High court or ex-Judges of the High Court to be appointed

by the Chief Justice of that High court. And Sir, within a period of one week a detainee has

to be furnished the grounds of arrest and within a period of one month the advisory Board

appointed has to certify that it is a fit case in which he can be detained and every three

months the case of the detainee has to go in before the relevant Advisory Board.
Then Sir for the first time power has been given to the Advisory Board to

declare the place of detention of the detainee. It is no longer the decision of the

Government or the executive authority. It shall be the Judges of the Supreme Court or

High court sitting at the Advisory Board who will decide the place of the detention of the

detainee. Further, it has also been provided that the Advisory Board while considering the

case of the detainee shall also make provision for reasonable subsidy for the family of the

detainee.

Sir the second major departure comes in respect of property right. Sir, it was the

unanimous view of the Committee with one or two exceptions but not of any serious

nature that if this country has to embark upon the paths of development and on the path of

socio-economic justice being given to the people of Pakistan, property rights cannot be

absolute. Therefore, property rights had to be abridged and the Constitution Committee

72
has made recommendations which go far ahead of the property rights and fundamental

rights in the Indian Constitution. We have gone much further. While retaining the old

provision that for a public purpose any property can be acquired we have said that certain

laws shall be exempted from the operation of those fundamental rights. That means that

property can be acquired with or without compensation and once it is acquired, even if

compensation is granted under the law, the award of that compensation shall be the final

word and no court shall have jurisdiction to inquire in to the adequacy or otherwise of the

compensation.
Now, Sir what are those cases? The first case that we have provided is that we

have empowered the National Assembly to frame laws, to pass Acts which can prescribe

ceilings on the holding of property-agricultural property, urban property, businesses, and

value of property. It is completely comprehensive clause which will empower the

legislature in the respective fields- the appropriate legislature, that is, the Parliament in the

case of central law to prescribe ceilings on the holding of property.

Number two is that we have seen the injustices of the past where the machinery

of law has not been effective enough, where legal quibbling have enabled persons to get

out of the net of the law, we have seen that it has not been possible to find out who have

taken undue advantage of law and amassed wealth and fortune. So we have added a

provision that the Parliament shall have the authority to confiscate or resume without

compensation such property which has been acquired by unfair means.'

Later on 17th February, 1973 Abdul Hafeez Pirzada the author of the

Constitution while explaining the chapter pertaining to Fundamental Rights said in the

Assembly that 'we have provided for protection of citizenship rights, safeguards against

distinction of service, preservation of language, script and culture of the people in

Pakistan.'
The National Assembly discussed, debated and approved the Chapter

73
pertaining to the Fundamental rights on 13-14 March, 1973. Following were the major

strands of arguments during these parliamentary debates;

Ÿ The debates revolved around socialistic manifestations of the ruling party and

its connection with Islamic ethos.

Ÿ Criticism on exclusion from the provisions of Fundamental Rights for the

members of the Armed Forces, the police and any other such forces charged

with the maintenance of public order for the purpose of ensuring the proper

discharge of their duties or the maintenance of disciple among them. The author

of the Constitution Abdul Hafeez Pirzada clarified 'it was only with regard to

discipline and we need discipline in the Armed Forces and the Police.’
Ÿ One of the major arguments was that the entire scheme of the rights was too

much constrained with 'reasonable restrictions, subject to law and public order

etc.' and all this amounted to giving rights with one hand and snatching them

back with the other.

Ÿ Another criticism was on protection of certain laws in the First Schedule of the

Constitution from the filter of the Fundamental Rights. However the Law

Minister assured that the Parliament was given the power to amend these laws.
Ÿ Many legislators urged to exclude the political workers and the journalists from

the ambit of the preventive detention. They cited many examples as to how in

the past similar clauses had been used and abused.

Ÿ While appreciating the articles that made the Fundamental Rights justiciable in

the Supreme Court [Article 184 (3)] and in a High Court [Article 199], the

legislators emphasized independence of judiciary for citizens' empowerment

amid continuation of democracy.

Ÿ While discussing the proposed Principles of Policy many legislators proposed

to make socio-economic principles part of the justiciable Fundamental Rights.

74
 Ÿ Some legislators also suggested inclusion of many more rights like the Right to

Work, Right to Food and Shelter etc. along with accountability provisions

against the prosecutor in case of miscarriage of justice for ulterior political

motives, and

Ÿ Make the Pakistani bill of rights fully compatible with the Universal

Declaration of Human Rights.

On 10th April, 1973 upon approval of the Constitution of 1973 the President

Zulfiqar Ali Bhutto said that, 'the supremacy of the legislature has been restricted by the

incorporation of the Fundamental Rights. And these Fundamental Rights have been

protected by a provision for the independence of the judiciary.' He added that the

Constitution which provides for Fundamental Rights for the citizens has provisions for

amendments what was not attainable in these circumstances.

Unfortunately this 'rights regime' remained under assault both during the 1420-

day of democratic dispensation from 14th August, 1973 till 4th July, 1977 and the dark night

of dictatorship from 5th July, 1977 till 30th December, 1985. Only two days after the

enforcement of the Constitution on 16th August, 1973 the then President, Fazal Ilahi

Chaudhry issued the following proclamation to suspend some of the vital Fundamental

Rights;

“Whereas Article 280 of the Constitution of the Islamic Republic of Pakistan

provides that the proclamation of emergency issued on the 23rd November, 1971 shall be

deemed to be a proclamation of emergency issued under Article 232 thereof:-

And whereas clause (2) of Article 233 of the said Constitution provides that

while a proclamation of emergency is in force, the President may by Order declare that the

right to move any court for the enforcement of such of the fundamental rights conferred by

Chapter 1 of Part II of the Constitution as may be specified in the Order, and any

proceeding in any court which is for the enforcement and involves the determination of

75
any question as to the infringement of the rights so specified shall remain suspended for

the period during which the proclamation is in force and whereas the aforesaid

proclamation of emergency is in force:-

Now therefore, in exercise of the powers conferred by the said clause (2) of

Article 233, the President is pleased to declare that the right to move any court, including

the right to move the Supreme Court vide clause (3) of Article 184, for the enforcement of

the fundamental rights provided for in articles 10, 15, 16, 17, 18, 19, 23, 24, 25 and 27 of

the Constitution and all proceedings pending in any court which are for the enforcement

or involve the determination or any question as to the enforcement or any of the said right

shall remain suspended for the period during which the said proclamation is in force.'

Within two years after the adoption of the Constitution the Government at least

thrice amended the Chapter of Fundamental Rights through the 1st, 3rd and the 4th

Constitutional Amendments in 1974 and 1975 to alter the scope of certain rights related to

preventive detention, the Right to Association and the Freedom of Expression. On 5th July,

1977 the Constitution was held in abeyance upon imposition of Martial Law and the

Fundamental Rights were gone along with the curtailment over the jurisdiction of the

Apex Court.

Later the hybrid regime of General Ziaul Haq and Mohammad Khan Junejo

through the 8th Constitutional Amendment introduced a few minor changes. After the

restoration of democracy in 1988 till the imposition of yet another Military rule on 12th

October, 1999 only the 16th Constitutional Amendment extended the quota system for

employment from 20 to 40-year in Article 27. Later the Legal Framework Order of

General Pervez Musharraf and the subsequent 17th Constitutional Amendment also

tinkered with a few Fundamental Rights.

76
Life of the Cons tu on-1973 as of Jan. 29, 2016

Percentage wise division

77
Fundamental Rights guaranteed in the
Constitution of 1973
Part II: Fundamental Rights and Principles of Policy
Denition of the State

I
n this Part, unless the context otherwise requires, "the State" means the Federal

Government, [Majlis-e-Shoora (Parliament)], 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.

Chapter 1: Fundamental Rights

8. Laws inconsistent with or in derogation of fundamental rights to be void.

(1) Any law, or any custom or usage having the force of law, in so far as it is

inconsistent with the rights conferred by this Chapter, shall, to the extent of

such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights so

conferred and any law made in contravention of this clause shall, to the extent

of such contravention, be void.

(3) The provisions of this Article shall not apply to :-

(a) any law relating to members of the Armed Forces, or of the police or of such

other forces as are charged with the maintenance of public order, for the

purpose of ensuring the proper discharge of their duties or the maintenance

of discipline among them; or

(b) any of the:-

(i) laws specified in the First Schedule as in force immediately before the

commencing day or as amended by any of the laws specified in that

Schedule;
(ii) other laws specified in Part I of the First Schedule;

78
 and no such law nor any provision thereof shall be void on the ground that such
law or provision is inconsistent with, or repugnant to, any provision of this
Chapter.
(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a
period of two years from the commencing day, the appropriate Legislature shall
bring the laws specified in [Part II of the First Schedule] into conformity with
the rights conferred by this Chapter:
Provided that the appropriate Legislature may by resolution extend the said
period of two years by a period not exceeding six months.
Explanation:- If in respect of any law [Majlis-e-Shoora (Parliament)] is the
appropriate Legislature, such resolution shall be a resolution of the National
Assembly.
(5) The rights conferred by this Chapter shall not be suspended except as
expressly provided by the Constitution.
9. Security of person.
No person shall be deprived of life or liberty save in accordance with law.
10. Safeguards as to arrest and detention
(1) No person who is arrested shall be detained in custody without being
informed, as soon as may be, 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.
(2) Every person who is arrested and detained in custody shall be produced
before a magistrate within a period of twenty-four hours of such arrest,
excluding the time necessary for the journey from the place of arrest to the court
of the nearest magistrate, and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or
detained under any law providing for preventive detention.

79
 (4) No law providing for preventive detention shall be made except to deal with
persons acting in a manner prejudicial to the integrity, security or defence of
Pakistan or any part thereof, or external affairs of Pakistan, or public order, or
the maintenance of supplies or services, and no such law shall authorise the
detention of a person for a period exceeding [three months] unless the
appropriate Review Board has, after affording him an opportunity of being
heard in person, reviewed his case and reported, before the expiration of the
said period, that there is, in its opinion, sufficient cause for such detention, and,
if the detention is continued after the said period of 18[three months]18, unless
the appropriate Review Board has reviewed his case and reported, before the
expiration of each period of three months, that there is, in its opinion, sufficient
cause for such detention.
Explanation-I: In this Article, "the appropriate Review Board" means:-
(i) in the case of a person detained under a Federal law, a Board appointed by the
Chief Justice of Pakistan and consisting of a Chairman and two other persons,
each of whom is or has been a Judge of the Supreme Court or a High Court; and
(ii) in the case of a Person detained under a Provincial law, a Board appointed
by the Chief Justice of the High Court concerned and consisting of a Chairman
and two other persons, each of whom is or has been a Judge of a High Court.
Explanation-II: The opinion of a Review Board shall be expressed in terms of the views
of the majority of its members.
(5) When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall,
[within fifteen days] from such detention, communicate to such person the
grounds on which the order has been made, and shall afford him the earliest
opportunity of making a representation against the order:
Provided that the authority making any such order may refuse to disclose facts

80
 which such authority considers it to be against the public interest to disclose.
(6) The authority making the order shall furnish to the appropriate Review
Board all documents relevant to the case unless a certificate, signed by a
Secretary to the Government concerned, to the effect that it is not in the public
interest to furnish any documents, is produced.
(7) Within a period of twenty-four months commencing on the day of his first
detention in pursuance of an order made under a law providing for preventive
detention, no person shall be detained in pursuance of any such order for more
than a total period of eight months in the case of a person detained for acting in a
manner prejudicial to public order and twelve months in any other case:
Provided that this clause shall not apply to any person who is employed by, or
works for, or acts on instructions received from, the enemy [or who is acting or
attempting to act in a manner prejudicial to the integrity, security or defence of
Pakistan or any part thereof or who commits or attempts to commit any act
which amounts to an anti-national activity as defined in a Federal law or is a
member of any association which has for its objects, or which indulges in, any
such anti-national activity].
(8) The appropriate Review Board shall determine the place of detention of the
person detained and fix a reasonable subsistence allowance for his family.
(9) Nothing in this Article shall apply to any person who for the time being is an
enemy alien.
10 A. Right to fair trial:
For the determination of his civil rights and obligations or in any criminal
charge against him a person shall be entitled to a fair trial and due process.
11. Slavery, forced labour, etc. prohibited
(1) Slavery is non-existent and forbidden and no law shall permit or
facilitate its introduction into Pakistan in any form.

81
 (2) All forms of forced labour and traffic in human beings are prohibited.

(3) No child below the age of fourteen years shall be engaged in any factory

or mine or any other hazardous employment.

(4) Nothing in this Article shall be deemed to affect compulsory service:-

(a) by any person undergoing punishment for an offence against any law;

or

(b) required by any law for public purpose provided that no compulsory

service shall be of a cruel nature or incompatible with human dignity.

12. Protection against retrospective punishment

(1) No law shall authorize the punishment of a person:-

(a) for an act or omission that was not punishable by law at the time of the

act 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.

(2) Nothing in clause (1) or in Article 270 shall apply to any law making

acts of abrogation or subversion of a Constitution in force in Pakistan at any

time since the twenty-third day of March, one thousand nine hundred and

fifty-six, an offence.

13. Protection against double punishment and self-incrimination.

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.

14. Inviolability of dignity of man, etc.

(1) The dignity of man and, subject to law, the privacy of home, shall be

inviolable.

82
 (2) No person shall be subjected to torture for the purpose of extracting

evidence.

15. Freedom of movement, etc.

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.

16. Freedom of assembly.

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.

17. Freedom of association:

(1) 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.

(2) Every citizen, not being in the service of Pakistan, shall have the right to

form or be a member of a political party, subject to any reasonable

restrictions imposed by law in the interest of the sovereignty or integrity of

Pakistan and such law shall provide that where the Federal Government

declares that any political party has been formed or is operating in a manner

prejudicial to the soverignty or integrity of Pakistan, the Federal

Government shall, within fifeen days of such declaration, refer the matter to

the Supreme Court whose decision on such reference shall be final.

(3) Every political party shall account for the source of its funds in accordance

with law.

18. Freedom of trade, business or profession.

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:

83
 Provided that nothing in this Article shall prevent:-

(a) the regulation of any trade or profession by a licensing system; or

(b) the regulation of trade, commerce or industry in the interest of free

competition therein; or

(c) the carrying on, by the Federal Government or a Provincial Government, or

by a corporation controlled by any such Government, of any trade, business,

industry or service, to the exclusion, complete or partial, of other persons.

19. Freedom of speech, etc.

Every citizen shall have the right to freedom of speech and expression, and

there shall be freedom of the press, subject to any reasonable restrictions

imposed by law in the interest of the glory of Islam or the integrity, security or

defence of Pakistan or any part thereof, friendly relations with foreign States,

public order, decency or morality, or in relation to contempt of court,

30[commission of]30 or incitement to an offence.

19A. Right to information:

Every citizen shall have the right to have access to information in all matters of

public importance subject to regulation and reasonable restrictions imposed by

law.

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

Subject to law, public order and morality:-

(a) every citizen shall have the right to profess, practice and propagate his

religion; and

(b) every religious denomination and every sect thereof shall have the right to

establish, maintain and manage its religious institutions.

21. Safeguard against taxation for purposes of any particular religion.

No person shall be compelled to pay any special tax the proceeds of which are to

84
be spent on the propagation or maintenance of any religion other than his own.

22. Safeguards as to educational institutions in respect of religion, etc.

(1) No person attending any educational institution shall be required to receive

religious instruction, or take part in any religious ceremony, or attend

religious worship, if such instruction, ceremony or worship relates to a

religion other than his own.

(2) In respect of any religious institution, there shall be no discrimination

against any community in the granting of exemption or concession in

relation to taxation.

(3) Subject to law:

(a) no religious community or denomination shall be prevented from providing

religious instruction for pupils of that community or denomination in any

educational institution maintained wholly by that community or

denomination; and

(b) no citizen shall be denied admission to any educational institution receiving

aid from public revenues on the ground only of race, religion, caste or place

of birth.

(4) Nothing in this Article shall prevent any public authority from making

provision for the advancement of any socially or educationally backward

class of citizens.

23. Provision as to property.

Every citizen shall have the right to acquire, hold and dispose of property in any

part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by

law in the public interest.

24. Protection of property rights.

(1) No person shall be compulsorily deprived of his property save in

85
accordance with law.

(2) No property shall be compulsorily acquired or taken possession of save for a

public purpose, and save by the authority of law which provides for

compensation therefore and either fixes the amount of compensation or

specifies the principles on and the manner in which compensation is to be

determined and given.

(3) Nothing in this Article shall affect the validity of :-

(a) any law permitting the compulsory acquisition or taking possession of any

property for preventing danger to life, property or public health; or

(b) any law permitting the taking over of any property which has been acquired

by, or come into the possession of, any person by any unfair means, or in

any manner, contrary to law; or

(c) any law relating to the acquisition, administration or disposal of any

property which is or is deemed to be enemy property or evacuee property

under any law (not being property which has ceased to be evacuee property

under any law); or

(d) any law providing for the taking over of the management of any property by

the State for a limited period, either in the public interest or in order to

secure the proper management of the property, or for the benefit of its

owner; or

(e) any law providing for the acquisition of any class of property for the purpose

of

(i) providing education and medical aid to all or any specified class of

citizens or

(ii) providing housing and public facilities and services such as roads,

water supply, sewerage, gas and electric power to all or any specified

86
 class of citizens; or

(iii) providing maintenance to those who, on account of unemployment,

sickness, infirmity or old age, are unable to maintain themselves ; or

(f) any existing law or any law made in pursuance of Article 253.

(4) The adequacy or otherwise of any compensation provided for by any such

law as is referred to in this Article, or determined in pursuance thereof, shall not

be called in question in any court.

25. Equality of citizens.

(1) All citizens are equal before law and are entitled to equal protection of 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.

25A. Right to education:

The State shall provide free and compulsory education to all children of the age

of five to sixteen years in such manner as may be determined by law.

26. Non-discrimination in respect of access to public places.

(1) In respect of access to places of public entertainment or resort not intended

for religious purposes only, there shall be no discrimination against any

citizen on the ground only of race, religion, caste, sex, residence or place of

birth.

(2) Nothing in clause (1) shall prevent the State from making any special

provision for women and children.

27. Safeguard against discrimination in services.

(1) No citizen otherwise qualified for appointment in the service of Pakistan

shall be discriminated against in respect of any such appointment on the

ground only of race, religion, caste, sex, residence or place of birth:

87
 Provided that, for a period not exceeding [forty] years from the

commencing day, posts may be reserved for persons belonging to any class

or area to secure their adequate representation in the service of Pakistan:

Provided further that, in the interest of the said service, specified posts or

services may be reserved for members of either sex if such posts or services

entail the performance of duties and functions which cannot be adequately

performed by members of the other sex

[Provided also that under-representation of any class or area in the service

of Pakistan may be redressed in such manner as may be determined by an

Act of Majlis-e-Shoora (Parliament).]

(2) Nothing in clause (1) shall prevent any Provincial Government, or any local

or other authority in a Province, from prescribing, in relation to any post or

class of service under that Government or authority, conditions as to

residence in the Province. for a period not exceeding three years, prior to

appointment under that Government or authority.

28. Preservation of language, script and culture.

Subject to Article 251 any section of citizens having a distinct language, script

or culture shall have the right to preserve and promote the same and subject to law,

establish institutions for that purpose.

Reforming the Third Republic

In 2009 a 26-member Parliamentary Committee on Constitutional Reforms

(PCCR) headed by Senator Mian Raza Rabbani while examining the various provisions

of the Constitution of 1973 kept in view nine criteria and one of these was; 'further

strengthening fundamental rights.' The 18th Constitutional Amendment expanded the

scope of Fundamental Rights by acknowledging three new rights namely: Right to Fair

Trial, Right to Information, and Right to Education and reformed three existing rights

88
namely: Right to Association, Equality of Citizens, and Safeguard against discrimination

in services.

Changes in Fundamental Rights through the 18th Amendment-2010

A) Insertion of new Article in the Constitution.- In the Constitution, after

Article 10, the following new Article shall be inserted, namely:-

"10A. Right to fair trial.- For the determination of his civil rights and

obligations or in any criminal charge against him a person shall be entitled to a

fair trial and due process."

B) Substitution of Article 17 of the Constitution.- In the Constitution, for

Article 17, the following shall be substituted, namely:-

"17. Freedom of association.

(1) 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.

(2) Every citizen, not being in the service of Pakistan, shall have the right to

form or be a member of a political party, subject to any reasonable restrictions

imposed by law in the interest of the sovereignty or integrity of Pakistan and

such law shall provide that where the Federal Government declares that any

political party has been formed or is operating in a manner prejudicial to the

sovereignty or integrity of Pakistan, the Federal Government shall, within

fifteen days of such declaration, refer the matter to the Supreme Court whose

decision on such reference shall be final.

(3) Every political party shall account for the source of its funds in accordance

with law."

C) Insertion of new Article in the Constitution.- In the Constitution, after

Article 19, the following new Article shall be inserted, namely:-

89
 "19A. Right to information.- Every citizen shall have the right to have access to

information in all matters of public importance subject to regulation and

reasonable restrictions imposed by law".

D) Amendment of Article 25 of the Constitution.- In the Constitution, in

Article 25, in clause

(2). the word "alone" occurring at the end shall be omitted

E) Insertion of new Article in the Constitution.- In the Constitution, after

Article 25, the following new Article shall be inserted, namely:-

"25A. Right to education.-The State shall provide free and compulsory

education to all children of the age of five to sixteen years in such manner as

may be determined by law."

It is to attach importance to the education. We are committed to MDGs and this

aspect was earlier only in the Principles of Policy. Now it has become an

enforceable right.

F) Amendment of Article 27 of the Constitution.- In the Constitution, in

Article 27, in clause

(1) in the second proviso, for the full stop at the end a colon shall be substituted

and thereafter the following proviso shall be inserted, namely:-

"Provided also that under-representation of any class or area in the service of

Pakistan may be redressed in such manner as may be determined by an Act of

Majlis-e-Shoora (Parliament)".

The Parliamentary Committee on Constitutional Reforms in its set of

recommendations to the Government also asked the Federal Government to provide

equal opportunities for recruitment to all provinces, including Federally Administered

Tribal Areas (FATA) to ensure uniformity in the recruitment policy of the Armed Forces,

90
take steps to implement the FATA reforms announced by the President particularly the

changes in the Frontier Crimes Regulation (FCR) and to provide opportunities to the

political parties to organize their activities in the FATA, make appropriate laws regarding

'security of person', and address inequalities and disparities in Balochistan. Similarly

there were at least three 'Notes of Reiteration' to expand the scope of Fundamental Rights

related to Pakistani languages (Article 28), abolition of quota system (Article 27), and

making newly inserted right to education (Article 25-A) time-bound.

Here it is worth mentioning that the return of civilian rule in 2008 also tried

democratic rapprochema first through a public apology over the wrong doings and

mistakes in the past and later through a series of federal reconciliatory initiatives. These

efforts started with 'Aghaaz-e-Huqook-e-Balochistan' (Balochistan Rights Package) in

the Joint Sitting of the Parliament in November, 2009. This first-ever province specific

rights package was announced at a joint sitting of the Parliament on November 24, 2009.

The 35-point Package suggested 61 policy steps and practical actions in four distinct

categories namely: constitutional, political, administrative and economic matters. The

last part of the Package prescribed a proper periodic reporting and monitoring

mechanisms. The language and contents of the Package are of significant value as they

clearly acknowledge the concerns and grievances that shape resentment in Balochistan.

This reflects the seriousness of the Parliament to address Balochistan situation.

91
Compara ve table:
Fundamental Rights in the Cons tu on of 1973, 1962 and 1956

92
Provisions for the enforcement and suspension of the Fundamental Rights

93
Chapter-V
The Institutional Responses
by Parliament

94
95
U
nder the umbrella of the Constitution of 1973 the Parliament of Pakistan has

created two specific institutions for the protection of fundamental human

rights in the country. In 1992, the Functional Committee on Human Rights

was formed through an amendment in the Rules of Procedure and Conduct of Business in

the Senate and twenty years down the lane in 2012 an independent statutory body, the

National Commission on Human Rights was established through a unanimous legislation

in the both Houses of the Parliament.

Part-I: The Functional Committee on Human Rights

On 16th February 1992, Senator Khalil-ur Rehman moved a motion for setting

up a Committee on Human Rights by inserting a new rule in the Rules of Procedure and

Conduct of Business in the Senate. After detailed discussion the then Chairman Senate,

Senator Wasim Sajjad held the motion in order and referred it to the Committee on Rules

of Procedure and Privileges for consideration and report.

The Committee considered the motion in its meeting held on 2nd June 1992. The

meeting was chaired by Senator Iqbal Ahmed Khan. The mover of the motion, Senator

Khalil-ur-Rehman gave clause wise explanation of the proposed motion and apprised the

members of such parliamentary committees in other established democracies with facts

and figures. The mover pleaded that, 'the public was ignorant about basic fundamental

rights though in an Islamic society basic human rights to all citizens were guaranteed

irrespective of their colour class or creed.' The Committee after detailed deliberations

unanimously decided to recommend that the motion as introduced may be adopted.

According to the Rule 161; In addition to the functions assigned to the Standing

Committee on Human Rights, the functions of the Committee shall be the following or

96
such others as may be assigned to it from time to time.
The Committee shall:-
(a) Review on a continuous basis the over-all position of human right violations

in the country;
(b) Receive representations from the affected persons, organizations and

international agencies, including the Human Rights Commission, regarding

human rights violations in the country;

(c) Ascertain if any violation of human rights has taken place and also identify

the problem areas; and

(d) Undertake studies and make recommendations for redressing the human

right violations including proposal for legislation in that area.

Rules of Procedure and Conduct of Business in the Senate-2012
On 9th July 1992 Ch. Amir Hussain, Minister for Parliamentary Affairs laid on

the table of House the list of elected members of the Functional Committee on Human

Rights. The meeting of the Committee to elect its Chairman was held on 18th March 1993.

Senator Khalil-ur-Rehman was elected as the first Chairman of the Committee. During its

existence the Committee has taken up many critical human rights issues in the country.

The Pioneers: members of the first Committee on Human Rights were;

1. Senator Khalil-ur-Rehman-Chairman

2. Senator Dr. Noor Jehan Panezai

3. Senator Malik Faridullah Khan

4. Senator Malik Muhammad Hayat

5. Senator Malik Muhammad Ali Khan

6. Senator Iqbal Ahmed Khan

7. Senator Syed Iqbal Haider

8. Senator Bashir Ahmed Matta

9. Senator Mir Abdul Jabbar Khan

97
 10. Senator Dr. Abdul Ghaffar Jatoi
11. Senator Raja Muhammad Zafar ul Haq and
12. Senator Fida Muhammad Khan.
After this Senate-led initiative the Federal Government established a Human

Rights Cell in 1993 and in November 1995 the first full-fledged Ministry of Human

Rights was created. Senator Syed Iqbal Haider became the first Minister of Human Rights

in 1995. Since then on occasions the Ministry has existed either as a part of the Ministry

of Law and Justice or as a full-fledged entity. Whenever there was a specialized Ministry

of Human Rights that also resulted in creation of corresponding Standing Committee in

the National Assembly of Pakistan, whereas the Senate Committee on Human Rights has

been functional throughout these years with the exception of military rule from 12th

October 1999 till 2003.

Since its creation the Committee has picked-up many critical issues. Following

is the brief indicative survey of the issues considered by the Committee and reports laid in

the Senate of Pakistan:

Tenure: 1993-1994 and 1994-1997

Chairman: Senator Khalil-ur-Rehman

Report of the Sub-Committee of the Functional Committee on Human Rights on

alleged Human Rights violation with specific reference to reported Extra Judicial
Killings in Karachi.

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Tenure: 1997-1999 and 2015-onward

Chairperson: Senator Nasreen Jalil
Agenda item/issues
Discussion on the reports of Jail visits by the members of the Committee.
Legislation in particular on Juveniles, foreign nationals, mentally sick and the
Jail Manual;
Implementation of the International norms and local laws related to the Pakistan
Penal System.
Meeting with the Committee of delegation from Penal Reform International
visiting Pakistan and discussion on the project of "Legal aid for vulnerable
prisoners and training for Prison Officers in Pakistan.
Briefing by D.G Rangers, I.G Sindh Police and Chief Secretary, Sindh on the
incident of bus attack killing innocent people hailing from Ismaili community on
13th May, 2015.
Briefing by Human Rights Commission of Pakistan (HRCP) about the jurisdiction
of the National and International NGOs/Human Rights Commission of Pakistan
and utilization of their funds in the country.
Briefing about National Commission of Human Rights.
Report on the Shahdrah, Lahore's incident. Where father slit throats of three sons of
his brother and injured his sister-in-law and one year old Shakeel.
Tenure: 2003-2006 and 2006-2009

Chairman; Senator S. M. Zafar
Agenda item/issues

Issues of Human Rights violations arising out of certain provisions of Frontier

Crimes Regulation (FCR) which are in conflict with fundamental rights guaranteed
in the Constitution.

Considered the Sub-Committee Report on the human rights situation of the tenants
of Military Farmlands Okara in Punjab.

Briefing by the Inspector General of Punjab on the gang rape incidences in Narowal,
Kabirwala. Multan and Jalal Pur regarding the progress so far made in the
investigations and measures taken to provide protection to the victims and steps
taken to avoid similar incidents.

Launching a public debate and taking other suitable steps to review the Hudood
Ordinance.

Minister of Law, Justice and Parliamentary Affairs' briefing to the Committee on

how the issues and problems relating to Human Rights are tackled and highlight
areas where work in that regard could be done.

How to utilize the inputs of the Non-government Organizations (NGOs) to promote

and protect Human Rights in Pakistan.

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 Discussed the alleged public humiliation of citizen participating in political
activities.

Considered the consolidated report drafted by the Sub-Committee constituted by

the Functional Committee on the Condition of Jails in Pakistan.
To discuss News Item dated 17-11-2015 "Vani" case of Mouza Sultanwala Sharqi,
Musa Khel, Mianwali.

Possibility of providing a gate between Hayatabad Phase VII Peshawar and the
adjoining tribal area for easy access to hospitals and schools by patients and students
of the tribal area.
Issue of alleged molestation of a woman by Faisalabad Police Officials.
Point of Order raised by Senators Mian Raza Rabbani and Dr. Safdar Ali Abbasi
regarding arrest of Zahid Bergary, member of Provincial Assembly Sindh and other
party leaders by the Sindh Police referred to the Committee by the House on 16th
June, 2005.
Alleged torture meted out to one Haji Khan Sepah, of Tehsil Bara Khyber Agency in
Dera Ismail Khan released from the Jail.

Alleged detention of two juvenile prisoners namely Ashfaq (17) & Irshad (16)
under Section 24 of the FCR as appeared in Daily Times dated 20th September,
2005.
Report of the Sub-Committee of the Functional Committee on amendments in the
Frontier Crimes Regulations (FCR).

Prevailing conditions of jails in Pakistan, status of Jail Reforms with special

reference to observance of Human Rights.
Allocation of utilization of Women in Distress and Detention Fund, Human Rights
Relief Fund; and Human Rights Revolving Fund.
Resolution moved by Senator Farhatullah Babar "The Senate Functional
Committee on Human Rights is of the view that the annual report by the President
on the implementation of Principles of Policy should also be placed before the
Senate and that appropriate steps be taken in this regard."

Alleged human rights violations including custodial killings in some parts of

Baluchistan.

A Law dealing with terrorism and alleged terrorists.

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To further discuss the issue raised in Final Report on the National and Provincial
Assemblies Election (18 February 2008) issued by the European Union Election
Observation Mission dated 16 April, 2008 with regard to the non-participation of
women in the Election in certain areas (see Chapter-XI) and restrictive agreements
in (then NWFP) Khyber-Pakhtunkhwa and few Rural Area of Punjab, Sindh and
Tribal Agencies by Local Leaders (sometimes with the participation of the political
parties and candidates) banning women from voting.

The report of Election Commission of Pakistan which was to be prepared as per

decision of Committee made in its meeting held on 20-05-2008 regarding mapping
of Pakistan to point out the areas where women are prevented from exercising their
right of vote, shortcomings in the prevailing Election laws in this and proposed
amendments in Election Laws to overcome this situation.

The report of the Human Rights Division which was to be prepared as per decision of
Committee made in its meeting held on 20-05-2008 regarding a plan in collaboration
with NGOs to reach out the areas where women are prevented from exercising their
right of vote.

To discuss the report of Ministry of Law and Justice which was to be prepared as per
decision of Committee made in its meeting held on 20-05-2008 regarding
recommendations for ending the practices preventing women from casting their
right of vote.

Probe into barbaric act of burying five women alive in the Baba Dot area of District
Nasirabad Balochistan as referred by the House in its sitting dated 01-09-2008 on a
Point of Order raised by Senators Bibi Yasmeen Shah and Haji Muhammad Adeel.

The point of order regarding kidnapping of Mr. Muhammad Rafiq Bangulzai and
Mr. Sherdil Bangulzai from Quetta at 07.30 p.m. on 14-05-2008 (relatives of Senator
Liaqat Ali Bangulzai) raised by Senator Liaqat Ali Bangulzai in the sitting of the
Senate on 04-06-2008.

The issue of Military Courts under Army Act instead of Civil Law.
Briefing by the Ministry of Interior to know if the conditions in the refugees camps
created by the Government of Pakistan for shelter of a large number of refugees from
Bajaur and other areas are conductive to human dignity and whether educational and
basic necessities of the inhabitants of the camps are taken care of.

To express deep sorrow and grief on the killing of Sh. Abdul Aziz a prominent leader
of All Parties Hurriat Conference and to condemn the brutal police action of

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 shooting directly into the civilian crowd resulting into the death of four persons
including Sh. Abdul Aziz at the spot and to lodge protest against this incident.
Briefing on the Ministry of Human Rights, its structure, working and performance.
Strategizing for Human Rights protection and awareness.
Constituting a fact-finding Sub-Committee/mission on Gojra incident.
Condemnation of sentencing of Ms. Aung San Kyu, Opposition Leader of
Myanmar;
The issue of release of Dr. Afia Siddiqui (who is under trial in USA).
Report to be submitted by Senator Mushahid Hussain Sayed regarding visit of
Senators at Cariswell Centre, Texas.
Reports laid in the House
Report on Human Rights violations.
Report on Frontier Crimes Regulations (FCR).
Report on the condition of Jails in Pakistan.
Report on the visit of the Function Committee on Human Rights to Muzafarabad,
Azad Jamu & Kashmir.
Report on the Incident of the burning and desecration of churches, pastors houses,
school and the convent at Sangla hill Nankana.
Report on the Point of Order Raised by Senator Mian Raza Rabbani, Leader of the
Opposition and Senator Dr. Safdar Ali Abbasi regarding arrest of Mr. Zahid Bhurgri,
Member of Provincial Assembly of Sindh and other party leaders by the Sindh
Police.
Report on the Point of Order Raised by Senator Hameed Ullah Jan Afridi regarding
the alleged torture meted out of one Haji Khan, Sepah of Tehsil Bara, Khyber
Agency, in Dera Ismail Khan Jail resulting loss of sight of both of his eyes.
Report on the Point of Order Raised by Senator Hameed Ullah Jan Afridi regarding
the alleged torture meted out of one Haji Khan, Sepah of Tehsil Bara, Khyber
Agency, in Dera Ismail Khan Jail resulting loss of sight of both of his eyes.
Report on the visit of the Sub-Committee of the Function Committee on Human
Rights at IDPs camp Peshawar and Nowshehra .
Report of the Functional Committee on Human Rights on Dr. Aafia Siddiqui.

Tenure: 2009-2012 and 2012-2015

Chairman: Senator Afrasiab Khattak

Agenda item/issues
Briefing on missing persons.
Condition of Jails and status of Jail Reforms.
Target Killings and steps being taken to check these incidents.

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Perspective of Human Rights from Civil Society Organization's point of view by
HRCP and Khewendo Kor.
Briefing on the murder of Mr. Saleem Shahzad, journalist Asia Time.
Present position of siege of Parachanar.
Action taken by the Islamabad Police and CDA on provision of facilities including
sheds, clean drinking water and toilets etc. to the police personnel posted at check
posts in Islamabad.
Progress on the construction of sheds for the homeless people in Islamabad as
recommended in the meeting of the Committee held on 16-05-2011.
Progress of investigation in the case of Mr. Umer Cheema.
Implementation status on the recommendations of the Functional Committee
regarding street baggers in al over the country.
Present state of affairs of minorities in the country and steps under consideration of
the government for further improvement.
Living condition of Kalash community in Chitral especially with reference to the
provision of basic facilities to them.
Stage of implementation on the recommendations of the Functional Committee
regarding Mr. Umer Cheema's case.
To discuss a grave issue of violation of human rights namely the enforced
disappearances of citizens and to suggest ways and means to address the same.
(Requisitioned Meeting).
Detail of action taken on the previous recommendations of the Standing Committee.
Present state of affairs of forced marriages on Hindu women in Sindh and action
taken by the Government to stop this trend.
Reasons of migration of Hindu Community from the province of Sindh and detail of
action taken by the Government in this regard.
Detail of International Commissions/Agreements on human rights acceded by the
Government of Pakistan.
Detail of police encounters during the last six months in the Province of Punjab,
number of persons killed during these encounters and action taken against the police
officials involved in fake encounters.
Grant of Nationality by the Ministry of Interior to Mr. Shoaib Ahmed Salat, Ex-
Citizen of Junagadh State.
Illegal detention of Baba Jan, resident of Nasirabad Hunza, Gilgit-Baltistan.
Detailed discussion on the alleged blasphemy case against 11 year old Christian
girl namely, Ramsha, in Islamabad along with forced migration of Christian
Community from the area and the action taken by the administration in this regard.
Discussion on the report of the Sub-Committee on the violation of human rights
namely the enforced disappearances of citizens and to suggest ways and means to
the address the same.
Reasons for not stopping the genocide of Hazara Community in Balochistan.
Meeting with the aggrieved families of Hazara Tribe.
Visit to the Central Jail Quetta.

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Briefing by the Home Department, IGP Sindh and D.G Rangers on the target killings
in Karachi.
Steps taken to stop the Police torture in the province of Sindh.
Briefing by Home / Jail authorities on the issues of women and borstal jails in
Karachi.
Visit to Juvenile Prison at Karachi.
Discussion on the report of Sub-Committee on “To suggest ways and means to
address the issue of enforced disappearance of citizens”.
Un-necessary check posts at various points in Islamabad, which are creating big
problems to the commuters and in general to the ladies, students and patients in
particular; discourteous behavior of Police personal posted at these check posts
especially at night time.
Reasons for not taking any action by Islamabad Police and CDA on the
recommendations of the Standing Committee made in its meetings from time to time
for the provision of basic facilities including sheds, clean drinking water and toilets
etc.
Reasons for not granting nationality by the Ministry of Interior to Mr. Sohaib Ahmed
Salat, Ex-Citizen of Junagadh State in spite of various directions by the Committee.
Briefing by PIMS Administration on the un-natural deaths due to non-availability of
Ventilators and problems being faced by the patients due to shortage of Ultrasound
and MRI in the PIMS.
Action taken so far on the Report of the Sub-Committee on "To suggest ways and
means to address the issue of enforced disappearance of citizens as communicated
on 7th December, 2012.
Action taken on the recommendations of the Committee regarding removal of un-
necessary check posts, blocking of roads and provision of facilities at various check
posts in Islamabad.
Non-Compliance on the recommendations of the Standing Committee regarding
provision of security to Ex-Senator Hafiz Rashid Ahmed.

Discussion on Case No. 367, dated 29-9-2012 U/S 203/343/109 PPC Ps industrial
Area, Islamabad.
Action taken by the Islamabad Police on the application of Mr. Nazir Masih S/o Mr.
Allah Ditta regarding illegal occupation on his plot at village Sohan Distt.
Islamabad.

Report of the Sub-Committee on “To suggest ways and means to address the issue of
enforced disappearance of citizens as communicated on 7th December, 2012”.
Briefing by the Ministry of Human Rights on its function, performance and
international obligations regarding Human Rights.
Provision of call tracing/tracking facility to the Islamabad Police.
Visit of the Standing Committee on Human Rights to Joseph Colony, Badamy Bagh,
Lahore.

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 Extra judicial killing of people in Karachi by the Rangers and disappearance of
people as reported in the press.
To suggest ways and means to address the issue of enforced disappearance of
citizens.
Discussion on the Reports of the Human Rights Commission of Pakistan for the year
2013.
Discussion on the report of the Sub-Committee “To suggest ways and means to
address the issue of enforced disappearance of citizens”.
Meeting with Sub-Committee of European Parliament subcommittee on Human
Rights to Establish a strategic engagement between Pakistan and European Union
on the issue of Human Rights.
Discussion on the report of the Sub-Committee “To suggest ways and means to
address the issue of enforced disappearance of citizens”.
Finalization of the recommendations of the Sub-Committee on the report of Human
Rights Commission of Pakistan (HRCP).
Briefing on the long march held by voice of missing persons of Balochistan.
Continuous ban on YouTube.
Desecration of dead bodies of certain Hindus in the Province of Sindh.
Detail of Smoke emitted factories in the residential areas of the Capital and other
causes which are badly affecting the environment condition in the city along with the
reasons for not taking action by the CDA/EPA against the responsible for damaging
the environmental condition of Capital.
Briefing on the reported violation of human rights due to on-going Karachi
operation.
Visit of the Central Jail, Karachi.
Detailed discussion on the issue of crime against women in the name of Sawara in
KPK, Wani in Punjab and Karo kari in Sindh (honor killing) and the steps taken by
the federal and Provincial Governments to eradicate these evils/crimes.
Steps being taken to bring harmony between various groups.
Detail of the banned NGOS/Organizations of the civil society along with reasons.
Detail of the illegal detainees in Gilgit-Baltistan, with special reference to Mr. Baba
Jan of Hunza District.
Briefing on allegedly discriminatory treatment between various
segments/communities living in Gilgit-Baltistan and action taken by government in
this regard.
Murders of Sikhs recently in Peshawar and Nankana Sahib.
Difficulties in preparation of NICs especially in Punjab.
Repeating of with-holding tax.
Report of Sub-Committee on Gilgit-Baltistan.
Report laid in the House
Preliminary Report of the Sub-Committee of the Functional Committee on Human
Rights on the violation of Human Rights namely the enforced disappearances of
citizens and to suggest ways and means to address the same.

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Part-II: A gift from the Parliament of Pakistan to the People of Pakistan

National Commission for Human Rights

There had been constant efforts to establish an independent National Human

Rights Institution (NHRI) in Pakistan. However the bill to realize this dream was first

adopted on 21st December 2011 in the National Assembly of Pakistan after incorporating

many amendments introduced by the opposition. Later the Senate of Pakistan further

improved it by incorporating substantive amendments in to the initial bill. On 9th March

2012 the Senate of Pakistan passed it with the amendment. The National Assembly of

Pakistan later on passed it on 4th May 2012 with the Amendments that had been

incorporated by the Senate of Pakistan. In the both Houses it had been passed

unanimously.
Senator Prof. Khurshid Ahmed was the only speaker on the bill when Senator

Syed Nayyer Hussain Bokhari piloted the reformed bill in the Upper House-the Senate of

Pakistan. Senator Prof. Khurshid Ahmed said that the Senate of Pakistan has tried to make

the National Commission for Human Rights as an independent statutory body. 'It is an

institution created by the Parliament and must not be subservient to government grants. It

shall have the parliamentary allocation that will be vital for its independence' said Senator

Prof. Khurshid Ahmed. .

According to the law the National Commission for Human rights will be a

countrywide umbrella for the protection and promotion of human rights with a Human

Rights Court in the Federal Capital. The then President, Asif Ali Zardari gave his assent on

30th May 2012 and Pakistan joined the club of hundred plus countries with independent

statutory institutions for human rights.

After the passage of the law as per its requirements the Speaker of the National

Assembly constituted a four-member Parliamentary Committee on National Commission

for Human Rights for the appointment of Chairperson and members of the Commission in

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May 2012. The first four members committee included; Senator Rubina Khalid (PPP),

Senator Nuzhat Sadiq (PLM-N), Member National Assembly Mahreen Anwar Raja

(PPP) and Naseer Bhutta (PML-N). Mr. Naseer Bhutta was elected as the Chairman but

the Committee could not complete its task. After Election-2013, the second Parliamentary

Committee comprised of Senator Kamil Ali Agha (PML-Q), Senator Syed Muzaffar

Hussain Shah (PML-F) and Member National Assembly, Rana Tanveer Hussain (PML-

N) and Ms. Nafisa Shah (PPP-P) was constituted on September 3, 2013. Later Member

National Assembly Sardar Muhammad Amjad Farooq Khan Khosa (PML-N) replaced

Rana Tanveer Hussain. On 21st May, 2014 the Committee formulated its Rules and elected

Senator Syed Muzaffar Hussain Shah as its Chairman. On 13th February, 2015 the

Committee finalized the first-ever Chairperson and the other Members of the National

Commission for Human Rights. The recommendations were finally notified by the

President of Pakistan's approval on 19th May, 2015 and now the NCHR is functional to

protect and promote rights of the citizenry.

The first chairman of the NCHR is Justice (R) Ali Nawaz Chowhan and

pioneering members include; Ms. Fazila Aliani (Balochistan), Dr. Begum Jan (FATA),

Ch. Muhammad Shafique (Federal Capital), Dr. Yahya Ahmad (Khyber-Pakhtunkhwa),

Ms. Kishwer Shaheen Awan (Punjab), Ms. Anis Haroon (Sindh), Mr. Ishaq Masih

(Minorities) and Ms. Khawar Mumtaz (Chairperson National Commission on the Status

of Women). The Senate of Pakistan on various occasions has raised the issues that

hampered the effective take-off of the NCHR.

Understanding the NCHR:
The National Commission for Human Rights (NCHR) is empowered to review

the safeguards provided by or under the Constitution or any other law in force for the

protection of human rights. The NCHR can also recommend adoption of new legislation,

amendment of existing laws and adoption or amendment of administrative measures for

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their effective implementation. Upon request of the Government, the Commission will

also examine any legislation and submit its views thereon and comment on the

implications of the same for legislation.

The main objective of the NCHR law is, “Promotion and protection of human

rights as provided for in the Constitution and the various international instruments to

which Pakistan is a state party or shall become a state party.”

Composition and Conditions:
The NCHR is a ten-member body, with representation of the four provinces,

the Federal Capital, Federally Administered Tribal Areas (FATA), Chairperson National

Commission on Status of Women, and a representative of religious minorities. In this

way one can say that the NCHR has indirectly extended the constitutionally guaranteed

Fundamental Rights to the FATA. The NCHR law makes it mandatory that at least two

members shall be women and all members should be at least forty years of age. All

members are expected to be full time except the ex-officio member i.e. Chairperson of the

National Commission on Status of Women. The law puts a restriction on the chairperson

of NCHR not to seek any office of profit in federal or provincial government after

completion of his term. The term for chairperson is four year, extendable only once. The

mechanism of for removal of chairperson and members is same as for the judges

prescribed in Article 2009. These legal protections make the NCHR an effective statutory

institution. In case of resignation the vacancy has to be filled within 60 days. There is a

provision for acting chairperson amongst the members. Terms and conditions (salaries

and allowances) of the Chairperson NCHR and other members has to be prescribed by the

federal government in consultation with the Commission.

Mechanism of appointment:
The Federal Government will issue a public notice to invite suggestions for

suitable persons to be appointed as Chairperson and Members of the Commission and

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following scrutiny the proposed list will be presented to the Prime Minister and the

Leader of the Opposition in the National Assembly. The Prime Minister, in consultation

with the Leader of the Opposition, shall forward three names for each post to a

Parliamentary Committee for hearing and confirmation of any one person for each post. In

case there is no consensus between the Prime Minister and the Leader of the Opposition,

each shall forward their separate lists to the Parliamentary Committee.

The Parliamentary Committee shall be constituted by the Speaker of the

National Assembly consisting of four members (two from the Senate and two from the

National Assembly, one each from treasury and one each from the opposition to be

nominated by the Leaders of the both Houses and Leaders of the Opposition in both

Houses). In case at the time of such appointments the National Assembly is dissolved the

total membership of the Parliamentary Committee shall consist of the members from the

Senate only. The nominations will be confirmed by the President. The law proposes the

Headquarters of the Commission is to be situated in Islamabad, with possibility of

establishing offices at other places in Pakistan.

The Commission may constitute an advisory committee consisting of human

rights activists, civil society organizations, members of bar associations, members of

press club and such other representatives of federal and provincial governments

concerned with the functions of the Commission. The members of the advisory

committee will perform their functions in an honorary capacity to assist the Commission.

Functions of the Commission:

The commission will perform all or any of the following functions, namely:-

(a) Suo-moto or on petition presented to it by a victim or any person on his/her

behalf, inquire into complaints of

(i) Violation of human rights or abetment thereof: or

(ii) Negligence in the prevention of such violation, by a public servant;

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(b) Intervene in any proceeding involving any allegation of violation of human

rights pending before a court by making application for becoming a party to the

proceedings before such court;

(c) Notwithstanding anything contained in any other law for the time being in

force, the Commission or any person authorized by it may visit any jail, place of

detention or any other institution or place under the control of the Government

or its agencies, where convicts, under trial prisoners, detainees of other persons

are lodged or detained for purpose of ascertaining the legality of their detention

as well as to find out whether the provisions of the applicable laws or other

provisions relating to the inmates living conditions and their other rights are

being complied with;

(d) Review the safeguard provided by or under the Constitution of the Islamic

Republic of Pakistan or any other law for the time being in force for the

protection of human rights and recommend adoption of new legislation, the

amendment of existing laws and the adoption or amendment of administrative

measures for their effective implementation:

Provided that if requested by the Government, the Commission may examine

any legislation and submit its views thereon and comment on the implication of

the same for legislation;

(e) Review the factors, including acts of terrorism, that inhibit the enjoyment of

human rights and recommend appropriate remedial measures;

(f) Study treaties, other international instruments on human rights and reports

submitted by the Government of Pakistan on them including the comments

thereon, to make recommendations for their effective implementation;

(g) Undertake and promote research in the field of human rights, maintain

database on the complaints on violence of human rights received and

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development of human rights norms;
(h) Spread human rights literacy among various sections of society and

promote awareness of the safeguards available for the protection of these rights

through publications, print and electronic media, seminars and other available

means in all major languages of the country;

(i) Direct investigation and inquiry in respect of any incident of violation of

human rights;
(j) Submit independent reports to the Government on the state of human rights

in Pakistan for incorporation in reports to United Nations' bodies or

committees;
(k) Develop a national plan of action for the promotion and protection human

rights; and

(l) Such other functions as it may consider necessary for the promotion of

human rights.

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Chapter VI
Federal Laws to Protect Fundamental
Human Rights

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“Full religious liberty i.e.
liberty of belief,
worship, observances,
propaganda,
associa on and
educa on shall be
guaranteed to all
communi es.”
Quaid-i-Azam Muhammad Jinnah

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T
heoretically every law on the Statue Book is for the citizens and the society but

a few entail an explicit connotation for the protection and promotion of

fundamental/human rights. Given beneath is the list of such laws on the

Statute Book of Pakistan;

From the Colonial era but still on the Statutes book:
1. The Caste Disabilities Removal Act, 1850
2. The Hindu Widows' Re-Marriage Act, 1856
3. The Societies Registration Act, 1860
4. The Divorce Act, 1869
5. The Special Marriage Act, 1872
6. The Christian Marriage Act, 1872
7. The Married Women's Property Act, 1874
8. The Religious Societies Act, 1880
9. The Vaccination Act, 1880
10. The Trusts Act, 1882
11. The Births, Deaths and Marriages Registration Act, 1886
12. The Charitable Endowment Act, 1890
13. The Guardians and Wards act, 1890
14. The Marriage Validation Act, 1892
15. The Prisons Act, 1894
16. The Reformatory Schools Act, 1897
17. The Prisoners Act, 1990
18. The Registration Act, 1908
19. The Anand Marriage Act, 1909
20. The Cooperative Societies Act, 1912
21. The Mussalman Wakf Validating Act, 1913
22. The Charitable and Religious Trusts Act, 1920
23. The Pakistan Red Crescent Society Act, 1920
24. The Identification of Prisoners Act, 1920
25. The Workmen's Compensation Act, 1923
26. The Mussalman Wakf Act, 1923

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 27. The Succession Act, 1925
28. The Naturalization Act, 1926
29. The Hindu Law of Inheritance (Removal of Disabilities) Act, 1928
30. The Hindu Law of Inheritance (Amendment) Act, 1929
31. The Child Marriage Restraint Act, 1929
32. The Hindu Gains of Learning Act, 1930
33. The Children (Pledging of Labour) Act, 1933
34. The Parsi Marriage and Divorce Act, 1936
35. The Payment of wages Act, 1936
36. The Hindu Women's Right to Property Act, 1937
37. The Arya Marriage Validation Act, 1937
38. The Cutchi Memons Act, 1938
39. The Employer's Liability Act, 1938
40. The Dissolution of Muslim Marriages Act, 1939
41. The Mines Maternity Benefits Act, 1941
42. The Professions Tax Limitation Act, 1941
43. The Multi-unit Co-operative Societies Act, 1942
44. The Public Health (Emergency Provision) Ordinance, 1944
45. The Hindu Married Women's Right to Separate Residence and
Maintenance Act, 1946
46. The Hindu Marriage Disabilities Removal Act, 1946
After Independence (1947-2015)
1. The Pakistan (Exchange of Prisoners) Ordinance, 1948
2. The Vagrancy (Karachi Division) Act, 1950
3. The Pakistan Citizenship Act, 1951
4. The Karachi Rent Restriction Act, 1953
5. The Karachi Essential Articles (Price Control and Anti-Hoarding)
Act, 1953
6. The Charitable Funds (Regulation of Collection) Act, 1953
7. The Pakistan Commissions of Inquiry Act, 1956
8. The Public Order (Meetings) Ordinance 1958
9. The Public Order (Political Uniforms) Ordinance, 1958
10. The Pakistan Boy Scouts Association Ordinance, 1959
11. The Claims for Maintenance (Recovery Abroad) Ordinance, 1959
12. The Co-operative Societies (Repayment of Loans) Ordinance, 1960

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13. The Coal Mines (Fixation of Rates of wages) Ordinance, 1960
14. The Pakistan Girls Guides Association Ordinance, 1960
15. The Muslim Family Laws Ordinance, 1961
16. The Road Transport Workers Ordinance, 1961
17. The Minimum Wages Ordinance, 1961
18. The Voluntary Social Welfare Agencies (Registration and Control)
Ordinance, 1961
19. The Sports (Development and Control) Ordinance, 1962
20. The Employees Social Insurance Ordinance, 1962
21. The Copyright Ordinance 1962
22. The Tea Plantations Labour Ordinance, 1962
23. The Members of National assembly (Exemption from Preventive
Detention and Personal Appearance) Ordinance, 1963
24. The Cantonments Rent Restriction Act, 1963
25. The Indecent Advertisements Prohibition Act, 1963
26. The Family Courts Act, 1964
27. The Cantonments Pure Food Act, 1966
28. The Excise Duty on Minerals (Labour Welfare) Act, 1967
29. The West Pakistan Industrial and Commercial Employment
(Standing Orders) Ordinance, 1968
30. The Companies Profits (Workers Participation) Act, 1968
31. The Federal Employees Benevolent Fund and Group Insurance Act,
1969
32. The Minimum Wages for Unskilled Workers Ordinance, 1969
33. The Workers Welfare Fund Ordinance, 1971
34. The workers Children (Education) Ordinance 1972
35. The Pay-As-You-Earn scheme Act, 1973
36. The Newspaper Employees (Conditions of Service) Act, 1973
37. The Dock Workers (Regulations of Employment) Act, 1974
38. The Foreign Cultural Association (Regulation of Functioning) Act,
1975
39. The Employees Old-Age Benefits Act, 1976
40. The System of Sardari (Abolition) Act, 1976
41. The Dowry and Bridal Gifts (restriction) Act, 1976
42. The Law and Justice Commission of Pakistan Ordinance, 1979

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43. The Disabled Persons (Employment and Rehabilitation) Ordinance,
1981
44. The Establishment of the Office of Wafaqi Mohtasib (Ombudsman)
Order, 1983
45. The Literacy Ordinance, 1985
46. The Literacy (Amendment) Act, 1987
47. The Charitable and Religious Trusts (Amendment) Act, 1987.
48. The Federal Employees Benevolent Fund and Group Insurance
(Amendment) Act, 1989
49. The Martial Law Regulation No. 60 (Repeal) Act, 1989. (Regarding
Educational Institutions in Islamabad)
50. The Employment of Children act, 1991
51. The Bonded Labour System (Abolition) Act, 1992
52. The Islamabad Consumers Protection act, 1995
53. The Abolition of the Punishment of Whipping Act, 1996
54. The Women in Distress and Detention Fund, 1996
55. The Pakistan Environmental Protection Act, 1997
56. The Marriage Functions (Prohibition of Ostentatious Displays and
Wasteful Expenses) Ordinance, 2000
57. The Juvenile Justice System Ordinance, 2000
58. The National Commission on the Status of Women Ordinance, 2000
(Repealed by the NCSW Act, 2012
59. The Islamabad Rent Restriction Ordinance, 2001
60. The Protection of Communal Properties of Minorities Ordinance,
2002
61. The Islamabad Capital Territory Compulsory Primary Education
Ordinance, 2002 (Repealed by the Right to free and Compulsory
Education Act, 2012)
62. The National Commission for Human development Ordinance, 2002
63. The Higher Education Commission Ordinance, 2002
64. The Prevention and Control of Human Trafficking Ordinance, 2002
65. The National Judicial (Policy Making) Committee Ordinance, 2002
66. The Islamabad Transfusion of Safe Blood Ordinance, 2002
67. The Prohibition of Smoking and Protection of Non-Smokers Health
Ordinance, 2002

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68. The Protection of Breast-Feeding and Child Nutrition Ordinance,
2002
69. The Freedom of Information Ordinance, 2002
70. The Provincial Employees' Social Security (Amendment)
Ordinance, 2002
71. The Political Parties Order, 2002
72. The Political Parties (Amendment) Act, 2004
73. The Criminal Law (Amendment) Act, 2004 (To address the issue of
honour killing)
74. The Illegal Dispossession Act, 2005
75. The Protection of Women (Criminal Laws Amendment) Act, 2006
(Regarding Hadood Laws)
76. The Protection Against Harassment of Women at the work Place Act,
2010
77. The Criminal Law (Amendment) Act, 2010 (To address the issue of
sexual harassment)
78. The Transplantation of Human Organs and Tissue Act, 2010
79. The Benazir Income Support Program Act, 2010
80. The Sacked Employees (Re-instatement) Act, 2010
81. The Criminal Law (Second Amendment) Act, 2011 (For Acid control
and check acid crimes)
82. The Criminal Law (Third Amendment) Act, 2011 (To ban anti-
women practices)
83. The National Commission on the Status of women Act, 2012
84. The National Commission for Human Rights, 2012
85. The Intellectual Property Organization of Pakistan Act, 2012
86. The Right to free and Compulsory Education Act, 2012
87. The Trade Organizations Act, 2013
88. The Pakistan Academy of Letters Act, 2013

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 Epilogue
This research indicates that the story of parliamentary efforts spread over the
last 69 years to establish the framework for fundamental rights in Pakistan is remarkable.
When the rest of the world was grappling with the codification of the first generation of
fundamental human rights pertaining to life and legal liberties of the individual through
the Universal Declaration of Human Rights in 1948, the parliamentary debates and
discussions in Pakistan during 1947-56 touched the second generation of the rights that
include social, economic and cultural rights in the paradigm of a welfare state. This
thematic research has attempted to capture this story.
Besides constitutionalization of fundamental rights and numerous legislative
initiatives to make these rights tangible and enforceable, the Parliament of Pakistan also
undertook many other affirmative actions aimed at the inclusion of marginalized
segments such as women and religious minorities in representative democratic
institutions.
The Constitution of 1956 reserved ten seats for women in the National
Assembly which were reduced to six in the Constitution of 1962. The Constitution of
1973 provided for ten reserved seats for women, which were increased to 60 in 2002,
along with providing for 17 seats to women in the Senate of Pakistan same year. In 1975
through the 4th Constitutional Amendment for the first time six seats were reserved for the
religious minorities in the National Assembly of Pakistan. These seats were increased to
ten in 1985. In 2010 through the 18th Constitutional Amendment four seats for religious
minorities were reserved in the Senate of Pakistan.
This research has not examined or explored various resolutions passed or the
call attention notices discussed in Parliament or critical questions raised during the
Question Hour on issues related to fundamental human rights. It has also not delved into
detailed debates that took place while passing various laws with direct bearing on
fundamental rights. If one compiles all of these, then this publication will not be less than
the size of an encyclopedia. Academic institutions shall pick these themes up and
encourage research and scholarship on these topics.
Within the context of fundamental rights another aspect that remains less
explored and discussed even in the Parliament are international obligations of the country
vis-à-vis various human rights related treaties and conventions. Presently it is the
exclusive domain of the Executive to sign, ratify and report on it. Pakistan has signed and

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ratified all seven Human Rights conventions including the Universal Declaration of
Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR)
and International Covenant on Economic, Social and Cultural Rights (ICESCR) that
constitute the International Bill of Rights. The Parliament has no role in signing or
ratifying any of the international obligations of the country. In August, 2007 an
unsuccessful Private Member Bill was tabled in the Senate of Pakistan to involve the
Legislature in the process as these agreements had serious repercussions on the economic,
political and fundamental rights of citizens. The involvement of the Parliament in it is
important for nurturing the culture of democratic scrutiny and oversight. This will also
enable the Parliament to embed the country's conscious international commitments and
choices into the chapter of fundamental rights in the Constitution, reform the
corresponding laws and embark on new legislative initiatives.
One can't ignore that contemporary Pakistan is confronted with numerous
challenges pertaining to the safety and security of its citizens. The country is practically at
a war for the last many years. Dreadful incidents of terrorism and extremism continue to
undermine the life and liberties of the people. More than 50,000 citizens and citizens in
uniform have lost their lives. Amid this grim situation, many freedoms are often
undermined and on occasion curtailed through some laws. In January, 2015 while
adopting the 21st Constitutional Amendment (about the military courts) the Parliament
made such interventions time-bound to weed out the menace of terrorism. The culture of
effective parliamentary oversight can help safeguard the citizen's rights even in most
critical times.
The incremental journey of parliamentary efforts to protect the citizen's rights
will bear much better fruit when the Executive will internalize and operationalize
Parliamentary vision and the judiciary will interpret and protect these rights. The
Parliament would also need to strengthen its role of democratic oversight. Finally, 200
million resilient Pakistanis definitely deserve a better deal to enjoy the fruits of their hard
earned freedoms.

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121
 We the People of Pakistan

Elimination of exploitation
The State shall ensure the elimination of all forms of exploitation and
the gradual fulfillment of the fundamental principle, from each
according to his ability to each according to his work.

Right of individuals to be dealt with in accordance with law

To enjoy the protection of law and to be treated in accordance with
law is the inalienable right of every citizen, wherever he may be, and
of every other person for the time being within Pakistan. In particular:
no action detrimental to the life, liberty, body, reputation or property
of any person shall be taken except in accordance with law; no person
shall be prevented from or be hindered in doing that which is not
prohibited by law; and no person shall be compelled to do that which
the law does not require him to do.

Loyalty to State and obedience to Constitution and law

Loyalty to the State is the basic duty of every citizen. Obedience to
the Constitution and law is the [inviolable] obligation of every citizen
wherever he may be and of every other person for the time being
within Pakistan

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 PAKISTAN SENATE

House of the Federation

Senate of Pakistan
Parliament House, Islamabad

w w w . s e n a t e . g o v . p k
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