FUNDAMENTAL RIGHTS IN PAKISTAN: A CONSTITUTIONAL PROMISE OR A DISTANT DREAM?

Abstract

The Pakistan constitution of 1973, proposes a broad list of fundamental rights that are deemed to ensure civil, political, social as well as economic freedoms to all the people of Pakistan, regardless of social status, religion or gender. Nevertheless, implementation of the rights has eluded huge sectors of the population. This article is a critical analysis of the gap between constitutional avows and realities suffered by the Pakistani nationals. It states that although the textual assurances on Articles 8 to 28 form an effective framework, there is failure of the actual realization of such rights conditions due to institutional inefficiencies, political factors and socio-cultural limits. Based on the doctrinal study, case laws, and empirical literature, the paper assesses the work of the judiciary in the interpretation and application of fundamental rights.

It especially gives attention to the role of higher courts in article 199 and 184(3) emphasizing on the modernistic yet contentious rise of judicial activism in Pakistan. In jurisprudence there is progressive and regressive development concerning the rights to the environment, gender justice and protection of minorities. Landmark judgments like “Shehla Zia v. WAPDA” and “Benazir Bhutto V. State” provide Intensive interpretive innovation of Federation of Pakistan is reviewed and the failure of implementation is discussed in terms of enforcement data at ground-level.

A comparative constitutional analysis is also conducted side by side with India and South Africa and where emphasis has been put to the fact that similar post-colonies have evolved solid enforcement mechanisms in terms of public interest litigation and human rights commission. It says that the constitutional courts in Pakistan, though bold in their statements, have been found wanting when it comes to consistency and equitability of guarding rights citing weaknesses of institutions and a politicized official scene.

Moreover, the paper examines the socio-political forces behind the inability of fulfilling the basic rights especially to marginalized population like women, religion minorities, and rural people. The result of combinations of patriarchy, sectarianism, and feudal power structures with the actions of the state leads to an atmosphere in which rights are out of reach even when they have been declared as formal. This contradiction can be illustrated in the improper implementation of Article 25-A (Right to Education) as well as the weaknesses in the protection of Article 20 (Freedom of Religion).

Pakistan has ratified a number of human rights conventions internationally, of which are: “International Covenant on Civil and Political Rights (ICCPR)”. Nevertheless, the compliance with treaties is limited, and the reports about the struggle to UN bodies which are described by the state periodically do not bring into the understanding the reality at the national level. At the end of the paper, the policy and legal reform proposals are provided that would help reduce the gap between promise and practice. These revolve around constitutional reform to become more transparent, institutional reform that will act to protect the judiciary, empowerment of human rights commissions and universal civil education that will create an entity of rights aware populace.

 Overall, the promise of fundamental rights as provided by the constitutional structure of Pakistan looks promising but the institutional issues that lie ahead in the path of enjoying those rights makes it, to many, a distant dream. The constitutional vision may become a goal that inspires, but cannot be achieved unless there is serious judicial, legislative, and administrative reform.