FUNDAMENTAL RIGHTS IN PAKISTAN: A SUBSTANTIVE CRITIQUE

 “The importance of a thing is determined not by its worth but by its general pervasiveness at one time.”

The Fundamental Rights have been granted to the mankind by the Holy Book (Quran) 1400 years ago and by all other Holy Scriptures such as New & Old Testament, Torah, Tao-te-Ching or Vedas. While we were busy curtsying with war, violence, savagery and bloodshed, it never occurred to us to provide for the rights of people, not until we landed on the concept of statehood. And then like might is right or survival of the fittest, we continued governing by the whims of the powerful. After much lamentation by the poor, did we recognize and enact the hyperbolic Fundamental Rights, a result of public hue and cry, an aftereffect of a worldwide revolution. The reminiscence of Fundamental Rights in Pakistan is still unfolding and cannot be reported unless we discuss its background in context of the International framework. Like any other law in Pakistan, the Fundamental Rights too have been adopted from the big shots.  Human rights, preferentially the Fundamental Rights trudged off towards universal acclaim after the World War two.  As the saying goes, “If the United States of America sneezes the rest of the World catches cold”, Pakistan too ratified the in vogue Fundamental rights in its first constitution.

Travelling a little backward to the English Monarchies we can trace the sly footsteps of transfer of power (i.e. the grant of liberty in black and white) by the ruler to the ruled through Magna Carta 1215, Petition of Rights 1628 and Bill of Rights 1689, being a precursor for the American revolt and strive for the Fundamental Rights.

These Rights were not inherent in the Constitution of USA but inserted through the first ten amendments to the Constitution, named the Bill of Rights. These still carried with them the inherent lacunas and biases on the basis of gender and race. It took more amendments to rectify the flaws at least on paper and a century to get those rights somewhat working for the people of United States of America. One wonders, Pakistan’s Constitution, 29 years away from being a century old is still a paper with all the enforcement and execution yet to spew out. Pakistan has had the pleasure of enjoying three Constitutions, 1956, 1962 and 1973 (currently the Law of the Land) amongst which the 1962 Constitution originally did not support the Fundamental Rights but named those as “Principles for Law-making” which later, through an amendment was changed to Fundamental Rights. All good, saving the day. Now the Constitution retains the Fundamental Rights in its Articles 8-28, Chapter One, Part Two and which are, for the sake of satisfaction, deemed non-derogable.

Before we discuss the rights with the pros and cons, I am forced to ask why we need to acknowledge these rights as Fundamental in the first place? Why do we give this topic of Fundamental Rights such emphasis and contemplation, not only in Pakistan but all over the World? Does it have anything remotely to do with the sociological theory that “When you highlight the predicaments, they become mollified and sweetened”? Well may be, let’s see. It has something to do with the psyche of people, when you have something or at least you know that you have something, you get a sense of accomplishment, some achievement and you say ‘checkmate!’ and move on to the other.

Twenty Three (23) rights have been incorporated in the Constitution of Pakistan 1973, including three amendments and we are off to perform an X-ray of every single provision providing our rights to find out either their utility or the unnecessary expenditure of ink.

RIGHT TO LIFE AND LIBERTY

Article 9 of the Constitution says, “No person shall be deprived of life or liberty save in accordance with law”.

When we use the conjunction OR in a sentence, does it enhance the word earlier enjoined or undermine its importance? Well I will leave that there and take up the right of life as the bedrock and fountainhead of the fundamental rights and how it is being violated on the daily basis and what steps our worthy Government is taking to provide every single subject of this State with the Right to Life.

The following picture provides a good answer to this:

The Constitution provides the right of living to all the citizens of this State named “Islamic Republic of Pakistan” and how do we define life? Generally life is defined as the existence of a human being, that way a right to life is a right to exist in this world and it cannot be taken away from us, we can enforce this right in the Courts of Law, right? The right to animate physically, the right to live intellectually and the right to exist psychologically. There may be sub-classifications of these rights but these are the major heads of living. The Government should be held accountable for the deprivation of life caused to any person due to any reason that affects life in any capacity. Such as deprivation of life due to food insecurity or deprivation of life due to extreme poverty, economic impasse or deprivation of life due to any psychological hitch caused by negligence at the part of the Government. Should we not enforce our right to life when we are gradually but surely being deprived of life by pharmaceutical companies and corporate food enterprises? Should we not go to the High Court for our right of life when we are being exposed to traumas caused by health insecurities, energy insecurities, cultural degradation and what not? And is Liberty not a synonym for freedom and is it not always backed by choices?  What freedom do we have when all the necessities of life have been yielded away from us and provided to us back at skyrocketing prices, beyond what many can afford? Is this what we call liberty or freedom? When we cannot even drink water from our own houses? Thanks to the development that we are making, we are destroying the natural facilities and building roads and commercial areas, adulterating the water beneath the soil. And we are leaving no choice or liberty behind for our people, not even the choice to drink water. Water insecurity is on its peak and that time is about to hit us when we will have no water but the bottled one. I cannot help but appreciate (although sarcastically) the actual connotations of this provision.

SAFEGUARDS AS TO ARREST AND DETENTION

Article 10 of the Constitution discusses the right not to be arrested or detained save in accordance with law. This is a legal cum political provision detailing the rights of citizens when arrested and it also expands upon the preventive detention of people who act in any manner which compromises the integrity, security or defense of Pakistan. Fair enough, we bestow the accused person of an offence with rights which are fundamental in nature under this Article and those rights are;

• Person arrested must be informed about the grounds of arrest before detention
• He shall have a right to be defended by a legal practitioner of his choice
• He shall, when arrested, be produced before a Magistrate before 24 hours expire
• He shall not be detained beyond 24 hours without the order of the Magistrate

The Article talks about preventive detention too and which is;

• Only such person is to be detained preventively who jeopardizes the security of the country or public order
• He cannot be detained beyond a period of three months unless the appropriate Review Board has reviewed his case
• In case he is detained beyond the period of three months, he shall not be detained for more than a total period of eight months in case of public order and twelve months in any other case

Let me jog your memory a little, to be honest yes I am protected against being arrested or detained without fair grounds, but am I protected against the psychological arrest? Does that not ring a bell? Thought so! I don’t want to be psychologically detained and paralyzed. My mind is terrorized with thoughts of fear, uncertainty and insecurity all the time. I may be free physically because I have not committed a crime but I am mentally arrested and nobody talks about it. Nobody bothers if I have peace of mind. I should be protected psychologically and emotionally because I am not a criminal. It is as important to me as my physical protection against arrest and detention.

RIGHT TO FAIR TRIAL

Article 10A is a continuation of Article 10 and it dilates upon the right of the same person to enjoy the luxury of fair trial and due process. I find the word entitled a little intriguing;

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

Now unfortunately, we live in a society where being entitled to something frankly does not bestow the rights necessarily. People have all sorts of rights to due process but it all boils down to malpractices of the system. We do have Law to protect us, to which we bow down to but we have yet to do away with “Survival of the fittest”. Wherever applicable or employable, we take refuge in it. We have shortcuts and chicanery to get the trial done in our own fashion and our version of “fair” is biased. People resort to use approaches and references (most commonly called PR) when they face anything remotely legal or criminal and without a tinge of guilt that they are undermining the justice system, reaching beyond what is their fair share.

PROHIBITIONS ON SLAVERY AND FORCED LABOUR

Slavery is one concept that encompasses our whole life. If we agree to do something and surrender, we are slaves. Slavery is rampant in a tempered adaptation and that is beggary. By slavery one kind of social vice has been banned but the society is still pregnant with all such loose forms of slavery. To my surprise the minimum age to employ children in hazardous occupations is 14 which should be eighteen, the standard age for all other things.

PROTECTION AGAINST RETROSPECTIVE PUNISHMENT

It is a civilized clause and it upholds that people should not be punished for acts which have yet to be declared offenses.

PROTECTION AGAINST DOUBLE PUNISHMENT AND SELF INCRIMINATION.

It sounds about right that a person should not be punished more than once for one offense. It is humane. What happens generally is that in practice that crime weighs in on that person for the rest of his life and the punishment that is given by the people around him is far worse than the judicial humiliation.

It is also a right fundamental in nature that one person cannot be asked to be a witness against himself, he gets to keep his vote.

DIGNITY OF A PERSON

This Article brings in two very different things together. Dignity and privacy, both inviolable but subject to Law. No person gets to be respected and dignified if Law says otherwise. What the clause does not say is that a person should be entitled to dignity on his face but not otherwise. It should be a right of any person who is born to be respected, to be dignified. The reality is that though this clause exists in the Constitution, it is violated everywhere and the best place it should exist is in our culture. We should culturally practice to dignify people because they are people and not because of the Law. We derived Law from customs and practices but if the norms now are changed because things have been incorporated in Law then we should better get back from where we started. We should be outcome centered and not the just stick with Law.

The Article talks about the use of torture for extracting evidence that it is forbidden. It is kind of an extreme situation but torture is rampant even in our houses. Be it physical or emotional, torture is our weapon, used excessively to get desired results. Law I am afraid cannot help in this scenario and what can? Training and practice of the basic ethical expression, respect.

FREEDOM OF MOVEMENT

People being citizens of Pakistan are entitled to move freely wherever they wish to. I see a big contradiction here because of the gender stereotypes. A man can freely and economically move wherever he wishes but things are not the same for a woman. She loses respect the moment she moves in and out of anything in Pakistan which by the way also is a basic right of every citizen. What can help us here? Awareness may be because since 1973 the Constitution has been silently lying around and resting plus guaranteeing the right of movement without being fair.

FREEDOM OF ASSEMBLY/ASSOCIATION

This right in the Constitution can be for some but not for all of us since I hardly arrange processions or form partnerships ever. Good for the people who need it though.

FREEDOM OF TRADE, BUSINESS/PROFESSION

Again the Article is good but how many of the people does this serve as a fundamental right? I can’t do the math here.

FREEDOM OF SPEECH

Here comes a fancy one. It is my right to speak but how often do I speak without being afraid of so many of us lashing out at me. Constitutional safeguard might help politically but not socially. In our daily lives, with our family members, our bosses and kids, how many of us feel safe to exercise their freedom of speech? We have a lot to learn and share at our own individual level in order to expect something from the people ruling us.

RIGHT TO INFORMATION

It is my fundamental right to be informed but how keen am I to be informed and that too with healthy information.

FREEDOM TO PROFESS RELIGION AND MANAGE RELIGIOUS INSTITUTIONS

Law entitles us to profess any religion we want and to manage institutions. We have mosques but we do not talk about Islam. We are afraid of being lynched or murdered. We do not indulge in healthy discussions on our own religion for the sake of which we built this land. The religious minorities are protected too from taxes and from being bullied into practicing the prevailing religion. But we should be concerned about the harmony between people and do we even work on that?

EQUALITY OF CITIZENS

I want to give out a big laugh. In a small house of six members, not all of them are treated equal and this has nothing to do with the gender. Equality is between same people, of same ranks, of same business but not between the people because they are people. They share the same house but not all of them are equally treated. Some get to eat the chicken leg and some get to be happy with the chicken breast. It is a strange metaphor but useful.

RIGHT TO EDUCATION

I must say people who are not educated have not missed out on anything since the education we get is flawed and tainted. We need education to bring people closer and not for creating rat race amongst brothers from other mothers. When one cannot get a free lunch in this world then how come education is free? The educational system fails to make us lead peaceful social lives and creates a contention among the citizens. Introduce something to make us more human than education.

NON-DISCRIMINATION WITH RESPECT TO PLACES/SERVICES ETC.

The Articles guarantee open access to all for the public places and equal opportunities which is only fair.

PRESERVATION OF LANGUAGE/CULTURE

Was apathy our culture? Was it our code of conduct to abuse power be it even between a couple? We need to redefine our culture because our practices these days are only making things worse. We need a culture where people are respected for being people. We need a culture where power is in unity, where people speak their hearts, where people learn to be kind and respectful, where people listen and tolerate the opinions they do not hold. Languages sure mean a lot but it is the culture that brings us together. We need the culture where people know their self-worth and are ready to protect it irrespective of any differences.

Finally, I need to appreciate the Law and fundamental rights, at least the rights are there. The important thing is that the rights should be practiced by people and with practice comes habit. If people habitually follow good behavior then law is excessive. Respect begets respect and responsibility begets responsibility too. At individual level, we need to take our responsibility of respecting ourselves and respecting the people we share our lives with. We are not violent by nature but nurture which is why we need the crutches of Law to protect us when we fall. If we are fair and honest to ourselves and others we shall be better off. We should change our habit of celebrating the Fundamental Rights and instead focus of practicing those and be more conscious. It is good to have Law at your rescue but it is better to have a mind and do justice wherever you yourself can.