Fundamental Rights and How to Enforce Them

“Peace can only last where human rights are respected, where people are fed and where individuals and nations are free.”

– Dalai Lama.

Introduction to Human Rights, Constitutional Rights and Fundamental Rights

Every human being is entitled to enjoy his or her human rights without distinction of race, colour, sex, language, religion, political or other opinion, social origin, property, birth or other status. The following are the most important characteristics of human rights:

Respect for the dignity and worth of each other;
Universality – they are equally applicable to all without discrimination;
Inalienability – no one can restrict, deny or take away the human rights of a person (other than in specific situations permitted under the law);
Indivisibility, interrelatedness and interdependence.

States are obliged to protect, promote and ensure the enjoyment of human rights. Most human rights are owed by states to “all people” within their territory, while certain human rights are owed by states to “particular groups of people”. The main difference between human rights and fundamental rights is territorial. Human rights are ‘universal’ and without any limitation. In contrast, fundamental rights exist within a specific legal system whereby a right is an interest recognized and protected by law.

When a right is safeguarded by a Constitutional guarantee, it is known as a ‘fundamental right’ which gets placed beyond the power of any organ of the state and neither the executive nor the legislature shall act in violation of it. Such a right cannot be taken away, suspended or restricted, unless expressly provided for in the Constitution. It has been held in the case PLD 1969 S.C. 387 that an ‘ordinary right’ on the other hand can be enlarged, abridged or destroyed by an ordinary enactment.

In Pakistan, fundamental rights have been enshrined in Chapter II and Articles 8-28 of the Constitution of Pakistan, 1973. Articles 15-20, 23 and 25 address the fundamental rights of citizens of Pakistan, while Articles 9-14, 21, 22 and 24 address the rights of a person in general.

Fundamental rights are the crown jewels of democracy, however, they may have limitations placed upon them as well. According to John Locke,

“The state of ‘absolute freedom’ is fraught with disadvantages, inconvenience and dangers. The enjoyment of natural rights would be uncertain and constantly exposed to the invasions of others. In punishing infractions of the law each man would be a judge of his own cause and would be liable to exceed the rule of reason in avenging transgression.”

This means that in democratic societies, certain rights may have limitations placed upon them in order to uphold the constitutional themes of democracy, equality, freedom, tolerance, and social, economic and political justice.

Fundamental Rights (with Limitations) Guaranteed Under Articles 9-28 of the Constitution of Pakistan, 1973

Article 9: Security of Person

No person shall be deprived of ‘life’ or ‘liberty’.
The word deprivation means total loss, not restricted to the freedom of movement [AIR 1951 Bom. 30].
The right to life and liberty includes the right to a clean environment, rule of law and incorruptible administration of government (Commentary on the Constitution of Pakistan 1973 by M. Mahmood).
Exceptions: Save in accordance with law.

Article 10: Safeguard as to Arrest and Detention

A person must be informed of the grounds of his or her arrest and must have the right to consult and be defended by a lawyer of his or her choice.
Detained/arrested persons are to be brought before a magistrate within 24 hours and not to be detained in custody beyond the said period (except with the authority of the magistrate).
Exceptions: In case of preventive detention, a 3-month detention can be increased by another 3 months, as per the circumstances, particularly applicable in cases where a person has been acting in a manner prejudicial to the integrity of Pakistan, security of Pakistan, defence of Pakistan, or public order of Pakistan, or any part thereof.

Article 10-A: Right to Fair Trial and Due Process

For any civil or criminal charge.

Article 11: Prohibition of Slavery and Forced Labour

Slavery (forbidden).
Forced labour (prohibited).
Human trafficking (prohibited).
Child labour (prohibited under the age of 14 years and for hazardous employment).
Exception: Compulsory service for the punishment of an offence, but which shall still not be of a ‘cruel nature’ or incompatible with ‘human dignity’.

Article 12: Protection Against Retrospective Punishment

Not to punish what was not punishable at the time of the act or omission.

Article 13: Prohibition as to Double Jeopardy and Self-Incrimination

Article 14: Inviolable Right to Dignity and Privacy

Article 15: Freedom of Movement

Includes the right to enter, move, reside and settle in any part of Pakistan.
Exception: Subject to reasonable restrictions imposed in public interest.

Article 16: Freedom of Assembly

Includes the right to peaceful assembly without arms.
Exception: Subject to reasonable restrictions imposed by law in public interest.

Article 17: Freedom of Association

Freedom to form, join, or become a member of any association, union, or political party (whereby political parties must account for the source of their funds).
Exception: Subject to reasonable restrictions imposed in interests of the sovereignty of Pakistan, integrity of Pakistan, or public order and morality.

Article 18: Freedom of Lawful Occupation/Trade/Business/Profession

Exception: Subject to qualifications prescribed by law for any trade or business.

Article 19: Freedom of Speech, Expression and Press

Exceptions: Subject to restrictions imposed with regard to the glory of Islam, integrity of Pakistan, security of Pakistan, defence of Pakistan, friendly relations with foreign states, public order, decency, morality, contempt of court, incitement of an offence, etc.

Article 19-A: Right to Information

Relates to public authorities and matters of public importance.
Exception: Subject to reasonable restrictions imposed by law.

Article 20: Right to Practice, Profess and Propagate any Religion

Includes the right to manage, establish and maintain religious institutions, religious taxation and religious education.
Exception: Subject to restrictions as per law, public order and morality.

Article 21: Protection from Religious Taxation

Includes the right to not be compelled to pay any special tax and the right to spend, maintain or propagate any religion other than one’s own.

Article 22: Safeguard of Religious Educational Institutions

It shall be the duty of the state to advance citizens educationally and socially.
No one shall be compelled to take part in or attend religious worship other than one’s own.
There shall be no discrimination against any community in the granting of exceptions or concessions with regard to religious institutions.
No pupil shall be refrained from getting religious education of his or her choosing.
There shall be no discrimination with regard to admission into any educational institute.

Article 23: Right to Acquire, Hold and Dispose of Property in Any Part of Pakistan

Exception: Subject to restrictions in accordance with the law and public interest.

Article 24: Protection of Property Rights

Includes protection of property rights of owners and no deprivation of property for public purposes.

Article 25: Equality of Citizens

No discrimination on the basis of age, sex, caste, creed, etc.
Exception: Affirmative action shall be allowed to facilitate women, marginalized groups and deprived classes of the society.

Article 25-A: Right to Free and Compulsory Education

Includes the right to free and compulsory education for students between 5 and 16 years of age.

Article 26: Access to Public Places Without any Discrimination

Article 27: No Discrimination in Services

Except where affirmative action and quotas, etc. are needed.

Article 28: Preservation of Language, Script and Culture

The abovementioned fundamental rights can be broadly classified into civil, political, social, cultural and economic rights. A right is an interest recognized and protected by law. Every citizen of Pakistan can enjoy these rights, subject to certain limitations.

The enforcement of these fundamental rights can be approached through three mechanisms:

the holistic approach;
the particular approach, for the enforcement of specific fundamental rights; and
the international human rights approach, detailing conventional and extra-conventional mechanisms.

Holistic Approaches for the Enforcement of Fundamental Rights

A. Article 8 of the Constitution of Pakistan, 1973: Suo Motu Action by the Supreme Court

“The Supreme Court is the ultimate Arbiter and Custodian of the Constitution.”

[PLD 2012 SC1]

The Supreme Court possesses the power of judicial review, which is the power to review and keep a check on administrative and legislative actions deriving their force from the law and the Constitution, which may be arbitrary, excessive or in derogation of private rights.

Under Article 8 of the Constitution, the Supreme Court as the apex court has the power to declare any law, usage or custom as void if it is inconsistent with the rights conferred in Chapter II of the Constitution, or abridges the rights so conferred, or takes away the rights so conferred.

Exception: This does not apply to the acts of armed forces, police forces or any other forces for the maintenance of public order with the purpose of proper discharge of their duties.

B. Article 184(3) of the Constitution of Pakistan, 1973: Public Interest Litigation

Public interest litigation refers to litigation undertaken to secure public interest and demonstrate the availability of justice to socially disadvantaged people. To enforce the fundamental rights of an individual, class or group of people in public interest, the Supreme Court can entertain such cases under Article 184(3) of the Constitution of Pakistan.

In general, anyone can invoke the jurisdiction of the Supreme Court to seek this remedy by filing a constitutional petition when the rights of citizens have been encroached upon by the state or its functionaries (no time limit or bar has been provided).

“It must be a matter in which the public at large or at least a substantial section of the population is interested.”

[PLD 2011 Kar. 177]

Furthermore, in cases involving a serious violation of fundamental rights of an individual, the Supreme Court can also take up the matter under public interest litigation by considering the individual as a class or group.

“A law may be constitutional even though if it relates to a single individual, if on account of some special circumstances or reasons applicable to others, that single individual may be treated as a class by himself.”

[2003 CLD 756]

C. Human Rights Cell of the Supreme Court of Pakistan

To provide an expeditious and inexpensive remedy in matters relating to an infringement of fundamental rights guaranteed under the Constitution, a Human Rights Cell has been established by the Supreme Court. The Cell functions under the direct supervision of the Chief Justice of Pakistan.

An application containing your complaint related to a human rights violation can be submitted online. To submit the application, download and fill out the form titled ‘Performa Expatriate Pakistan’ from the Supreme Court’s website, Expatriate Pakistanis Complaint Wing. Attach the filled out form to an email and send the email to [email protected].

D. Article 199 of the Constitution of Pakistan, 1973: Writ Petition

The High Court, when it is satisfied that no other remedy is available under the law, can make an order on the application of an aggrieved party. The High Court may issue any of the following five writs under Article 199:

Certiorari: an order by a higher court directing a lower court to send the record in a given case for review.
Habeas corpus: a demand to present a person (‘produce the body’) before the court (can also be claimed under Section 491 of CrPC from the Sessions Court).
Mandamus: an order to perform an action.
Prohibition: a direction to stop doing something or stop performing an action.
Quo warranto: a requirement for a body to show by what authority it has exercised a certain power.

E. Ministry of Human Rights Complaint Cell

The Ministry of Human Rights has also established a special complaint cell where people can directly complain about human rights violations by calling 051-9216620 or sending an email to [email protected].

F. Pakistan Citizen Portal (Android App)

The Pakistan Citizen Portal is a government-owned mobile application which is an integrated citizens’ grievance redressal system connecting all government organizations at the federal as well as provincial levels.

Once the app is downloaded, an account has to be created to file an online complaint.

G. Complaint to the Ombudsperson (a Quasi-Judicial Body)

The ombudsperson has the mandate to protect the rights of the people while ensuring adherence to the rule of law, diagnosing, redressing and rectifying any injustice done to a person through ‘maladministration’ and suppressing corrupt practices.

The ombudsperson may, based on a complaint filed by an aggrieved person or sent by reference of the government or through a motion of the Supreme Court/High Court or based on on his or her own motion (suo moto action), undertake investigation into any allegation of ‘maladministration’ on part of any agency of the federal or provincial government or any of its officers or employees.

Citizens can register an online complaint to the federal/provincial ombudspersons’ offices through various online complaint mechanisms.

H. Suit For Damages (Under the Law of Tort)

According to Chapter II of the Constitution of Pakistan, everyone is required to work for the welfare of the people of Pakistan.

“…a person who is violating the law and Constitution and works against the welfare of the people… that is why it is high time to promote the ‘law of tort’ so that the people must understand that they cannot live as a nation without performing their duties within the framework of law… One of the modes to achieve this goal is to file ‘a suit for damages’ against the offenders by the aggrieved persons. It is the duty of the bar associations and bar council to educate the people to file suits for damages against the offender, apart from criminal proceedings. It is also the obligation of the media to cultivate awareness of rights especially law of tort which will ultimately compel every authority and functionary including the chief executive of the country to work within the framework of law and Constitution.”

[2006 SCMR 207]

I. Public Pressure Under the Right to Protest and Right of Assembly (Article 16)

The destitute, oppressed, marginalized, aggrieved and deprived groups of society also have the right to peaceful protest under Article 16 of the Constitution and create public pressure over a governmental authority to demand their rights.

Particular Approaches for the Enforcement of Specific Fundamental Rights

A. Right to Clean Atmosphere and Adequate Living Standards Under the Right to Life (Article 9)

Under the Pakistan Environmental Protection Act, 1997 an aggrieved person can file a complaint in writing to a federal or provincial environmental protection agency or local council. Such agency shall then forward the complaint to the environmental magistrate and environmental tribunal for further proceedings. An aggrieved person can also file a direct complaint with the environmental magistrate and environmental tribunal. The environmental magistrate is a magistrate of first class especially empowered in this position by the High Court.

B. Right to Fair Trial (Article 10, 10A, 12, 13)

This is based on the maxim that ‘no one should be condemned unheard’.

The adjudicatory framework of judicial hierarchy has been established in the following manner:

court of first instance;
court of appeal; and
revision/review of the court’s orders.

All public servants are required to follow the procedures of investigation, inquiry and trial properly.

Lodging a first information report (FIR) with the police against a crime is also a fundamental right. If a police officer refuses to lodge an FIR, the aggrieved person can make a complaint to the Justice of Peace under section 22A of the Code of Criminal Procedure (CrPC). The aggrieved person can also make a complaint to the magistrate under section 200 of the CrPC.

If a person is unable to afford legal counsel and court fees, he or she can apply to the District Legal Empowerment Committee to get free counselling services. “Pauper case services” (in civil cases) and “pro bono lawyers” (under criminal court rules) can also be provided to those in need.

C. Child Labour/Forced Labour

A Child Protection Bureau has been established to entertain all cases related to child abuse. People can also complain to the Child Protection Helpline by dialing 1121.

D. Right to Dignity and Privacy Under Cyber Crime Law

Crimes can be physical, psychological, sexual or even digital. In the cyber world, you must remember that ‘your data is yours’ and you should be able to have full control over it. The Prevention of Electronic Crimes Act, 2016 is relevant in this regard.

Another mechanism is the Cyber Crime Wing initiated by the Federal Investigation Agency where a victim can file a complaint online or by dialing 9911.

The Pakistan Telecommunication Authority (PTA) has also established a complaint cell where victims can make online complaints to the PTA.

E. Openness and Transparency Under the Right to Information

Citizens can demand openness and transparency and request information from public bodies with regard to their rights. All official websites are to proactively disclose information and remain up-to-date to inform citizens about matters of public interest.

The public must also be provided with free access to information such as updates on the policies of different ministries, updated statutes, judgments and case-laws on official legal websites and open court hearings with equal opportunities for all parties involved.

The Pakistan Bureau of Statistics (PBS) is the official entity in Pakistan responsible for the collection, compilation and dissemination of reliable and timely statistical information for policymakers, planners and researchers. In case of lack of response, complaints can also be lodged with the PBS Public Complaint Resolution Mechanism.

International Human Rights Mechanisms (Conventional and Extra-Conventional)

The Universal Declaration of Human Rights (UDHR) sets out human rights and fundamental freedoms for all without discrimination. The Office of the United Nations High Commissioner for Human Rights (OHCHR), under its Technical Cooperation Programme, provides assistance with the incorporation of international human rights norms into the national constitutions of states.

There are 9 core international human rights conventions and most of the rights contained therein (civil, cultural, economic, political and social) are part of our Constitution under the Chapter on Fundamental Rights. By ratifying human rights treaties, state parties willingly submit their domestic legal instruments, administrative procedures and other national practices for periodic review by international committees established under the treaties.

A number of conventional and extra-conventional mechanisms are in place to monitor the implementation of international human rights standards and deal with complaints of human rights violations.

A. Conventional Mechanisms

These include the following treaty monitoring bodies:

Committee on Economic, Social and Cultural Rights.
Human Rights Committee (Civil and Political Rights).
Committee on the Elimination of Racial Discrimination.
Committee Against Torture.
Committee on the Elimination of Discrimination Against Women.
Committee on the Rights of the Child.

The main functions of the treaty bodies are to examine reports submitted by state parties and consider complaints of human rights violations.

State reporting: All state parties are required to submit reports detailing the progress made and problems encountered in the implementation of rights under the relevant treaty.
Individual complaints: Three of the core international human rights treaties allow individuals to lodge complaints about alleged human rights violations. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of Racial Discrimination (CERD) and the Convention Against Torture (CAT).
State–to–state complaints: The same three treaties also allow states to lodge complaints relating to human rights abuses against another state.

Complaints regarding human rights violations are technically referred to as “communications”.

An individual can submit his or her communication after fulfilling the following conditions:

1. Local remedies (under domestic law) must first be exhausted, unless:

there is no legal process in that country to protect the rights alleged to have been violated;
access to remedies through local courts has been denied or prevented;
there is unreasonable delay locally in hearing the complaints;
there is a consistent pattern of gross violations; or
the local remedies are unlikely to bring effective relief to the victim.

2. The communication must:

not be anonymous or abusive;
allege violations of human rights as specified in the treaty;
not be under current or past investigation in another international procedure; and
corroborate the allegation.

B. Extra-Conventional Mechanisms and Special Procedures

These include:

Special Rapporteurs, Special Representatives, Special Envoys, Independent Experts, Working Groups (Thematic or Country) and Urgent Action.
Complaint Procedure 1503.

Individual communications can also be entertained under extra-conventional mechanisms. Special procedure mechanisms are of supreme importance in monitoring universal human rights standards and addressing serious human rights violations. To pursue a complaint under special procedures, the following requirements must be fulfilled:

identification of the alleged victim(s);
identification of government agents responsible for the violation;
identification of the person(s) or organization(s) submitting the communication; and
a detailed description of the incident.

Urgent Action

When a matter is of urgency and imminence of grievous human rights violations, a Special Rapporteur, Representative, Expert or Working Group may send a message to the authorities of the state concerned and take the following actions:

request clarification regarding the case;
appeal to states to take necessary measures to ensure the protection of the alleged victims;
urge the relevant authorities to undertake full, independent and impartial investigation and adopt all necessary measures to stop further violations, as well as request to be informed of every step taken in that regard; and
periodically remind the states and relevant authorities if no response is received or no remedial measures have been taken.

Complaint Procedure 1503

This does not deal with individual cases but with situations:

affecting a large number of people;
prevailing over a protracted period of time; or
involving gross and systematic violations of human rights and fundamental freedoms.

A five-member Working Group of the Sub-Commission on the Promotion and Protection of Human Rights receives a monthly list of communications. Matters are then examined by the Sub-Commission and referred to the Commission on Human Rights which makes decisions regarding each particular case brought to its attention.

Naming and Shaming

All the initial steps of the 1503 Process are confidential, except for the names of the countries which have been under examination. If a matter does not get resolved in early stages, it can be brought to the attention of the global community through “naming and shaming”.

Conclusion

This article has examined that human rights exist as moral as well as legal rights. When these rights are guaranteed under our Constitution, they become fundamental rights, binding state institutions to protect, provide, promote and enforce them. When our rights are violated, we can resort to a number of local as well as international platforms and mechanisms to claim them and demand their enforcement. Our legislature, judiciary and the executive have provided us with a number of local mechanisms through which we can ask for the enforcement of these rights. We can also claim our rights through international human rights enforcement mechanisms if we are unable to adequately receive local remedies or if our state is not intending to defend our rights.

Unfortunately, we continue to observe ongoing violations of human rights despite having been provided with laws and remedies for their protection. This is because people still remain unaware of their rights and available remedies, they still lack trust in state institutions and they continue to experience a flawed justice system, a culture of ‘might is right’, yawning cynicism about executive policies and widespread social acceptance of violence and abuse.

It is high time to initiate behavioural change and reform educational training, communication and constructive dialogue, through media, clerics and pragmatists, etc. in order to nurture our future generations within a culture of human rights, security and peace.

“It is for you to realize these rights, now and for all time. Human rights are your rights. Seize them. Defend Them. Promote Them. Understand them and insist on them. Nourish and enrich them.”

– Kofi Annan, former Secretary-General, United Nations.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.

Author: Izza Rizvi