Islam, Constitution and Fundamental Rights

By Rafique Ahmed Mangrio

God created human on the earth, the period he fixed for creature to live is called “Life” which is very precious for every living creature on the earth. This is very basic and fundamental right for an individual to let him live safely, smoothly and freely. Then every prerequisite for protection of life is secondary mean, and any other requirement to decorate the life has third mean. The main reason or cause of many revolutions from time to time, from cave to this modern era, was the protection of life and protect of any thing which is obsessed with making the life perfect. Migration of people from place to another place is reason for getting peace and safety. The Holy Prophet (P.B.U.H) migrated from Makkah to Medina, even the all things were according to revelation, but the peaceful environment of Medina was also a fact.

According to Muslim jurists, an individual has five fundamental rights.

1. Protection of life 2. Protection of property   3. Protection of honor   4.  Protection of race. 5. Protection of religion, the question is that, what is meant by “Protection”? Either it means safety or it covers some other aspects? The answer is that, if no one will interfere in matters of other individual without his willingness, definitely he with his all things will be secured. It means he needs full freedom for living a valuable life. Further for making a valuable life he has been struggled and worked to change the system in which he is living. This is reason that no any system still has remained full established, for governance, without any change. In indifferent countries have different system of government because people feel it reliable for their livies. The conclusion is that freedom is the basic element for living a consistent life, that’s why people like different shapes of Democracy system for government.

The question arises here that what is the real spirit of a democratic system? Either it is a so called system of government or it is the real reflection of the peoples’ needs. Many people may have different views, but irrespective from all things, “the very basic element of the democracy, its real reflection and sprit is the “vote” of public by which each individual decide his fortunate. It means that vote has a very deep relationship with the life of an individual. So for a moderate life the freedom is necessary, for freedom required a good system of government and for superior government system people need to vote freely. This is beginning step for the growth of people and the development of nation and country.

If we examine the history of Pakistan that how many people are free to vote at any election time?  Hardly 20% of the population can use their right of vote safely. Major part of the country is rural area at least 80% population belongs to rural areas and unfortunately since the independence of the country people of these areas are totally deprived from their fundamental right (vote). They never can vote freely without influence and interference of royal persons (Wadera, Sardars). There are many events of blood shedding, and kidnapping of the agents of apposite parties at election time in rural areas. This particular group of giants has captured the fortunate of people, if an individual is not free to enjoy his basic right how he can play role effectively in development of the country. Freedom is not the name of particular territory; freedom is name to enjoy the life with all rights living in a particular territory. So this is the responsibility of cognizant people of the country, all authorities and educated youngers to play role for remote areas.

The Constitution of 1973 is the supreme law of our country and all acts, rights should be in line with the Constitution. However, this Constitution has undergone various amendments, especially during the previous Martial Law period (1 977-1 985), which have weakened the guarantees it provides for equal rights.

Articles 8 to Article 28 of the 1973 Constitution describe the Fundamental Rights which are to be available to all citizens, women as well as men wherever they may be, as well as all people temporarily or permanently in Pakistan. However, unfortunately the freedoms guaranteed can be curtailed or taken away by this particular group of people (Wadera, Sardars).

The basis of fundamental rights is laid out in Article 4, which states that it is the inalienable right (i.e., can never be taken away) of individuals (citizens wherever they may be as well as individuals currently in Pakistan)

A person cannot be:

• prevented from doing something which is legal
• compelled to do something which the law does not require him/her to do

Fundamental Rights in the Constitution

The overview of fundamental rights described in Constitution of Pakistan is as under,

Fundamental Rights are Supreme: Article 8.

• Any law or custom or usage having force of law inconsistent with Fundamental Rights shall be void.

Right to Life & Liberty: Articles 9, 10, 12 & 13;

• no person can be deprived of life or liberty, save in accordance with law
• On arrest or detention in custody, person is to be told grounds for such action & has the right to consult and be defended by legal practitioner of his/her choice.
• Arrested person is to be produced before the Magistrate within 24 hours of arrest; any detention beyond this period without the Magistrate’s authority is illegal. (Exceptions: people taken into preventive detention. However, there is also a specified procedure for such detention.)
• a person cannot be punished for an act which was legally not a crime at the time of its occurrence
• no punishment other than that prescribed in law at the time of occurrence
• for one crime/offence the accused cannot be punished twice
• the accused cannot be forced to give witness against herself/himself

Prohibition of Slavery & Forced Labour: Article 11;

• slavery, all forms of forced labour and trafficking of human beings are prohibited
• no child under 14 can work in a factory or a mine or any other hazardous employment.
  (Exceptions: prisoners and any duty for public service required by law.
  but compulsory service cannot be cruel or incompatible with human dignity)

Dignity of Man and Privacy of Home: Article 14:

• guarantees privacy of home and forbids torture for the purpose of extraction of evidence
• Police or any other state agency can enter a home only after obtaining lawful authority (in writing, naming person & purpose of entry – e.g., arrest or recovery of stolen goods)

Basic Freedoms: Articles 15, 16, 17, 18 & 19:

• every citizen is free to: move, live and settle in any part of the country, and also has the right to a passport and to travel abroad
• every citizen has the right to assemble peacefully (Exceptions: these can be restricted by law in the public interest)
• every citizen has the right to: join an association/union; freedom of speech and expression; freedom of the Press is guaranteed. (Exceptions: can be restricted by law on grounds of sovereignty& integrity of Pakistan, public order or morality; government servant cannot be member of a political party)
• every citizen, subject to qualifications can enter a trade, business or profession of his/her choice (Exceptions: regulations of trade & commerce can be made by the government)

Religious Freedom & Safeguards: Articles 20, 21 & 22:

• every citizen has the right to believe, practice and propagate their religion
• every religious denomination/sect has the right to establish, maintain and manage its religious institutions
• no person can be compelled to pay any special tax to be spent on the propagation or maintenance of a particular religion or religious institution other than his/her own
• no person attending any educational institution can be required to attend religious ceremonies, worship or receive education of a religion other than his/her own.
• no discrimination against any community in grant of tax exemption or concessions for religious institutions
• no discrimination in admission to educational institutions receiving public funds on grounds of race, religion, caste or place of birth (Exceptions: quota system is permissible for advancement of any socially or educationally backward class of citizens)

 Property Rights: Articles 23 & 24;

• every citizen is allowed to own, sell his/her property in any part of the country
• no person can be deprived of her/his property compulsorily. If property, land is needed in public interest, then the government has to give reasonable compensation to the owner.

Guarantees of Equality & Non- Discrimination: Articles 25, 26 & 27:

• all citizens are equal before law and are entitled to equal protection of law
• there shall be no discrimination on the basis of sex alone(Exceptions: the state can make special provisions for the protection of women and children)
• no discrimination on any basis in access to public places, except those specifically reserved for religious purposes (Exceptions: the state can make special provisions for women and children)
• no person otherwise qualified can be discriminated against in the matter of employment on the basis of race, religion, caste, sex,. residence or place of birth (Exceptions: specific services can be reserved for members of either sex if such posts/services require duties which cannot be adequately performed by the members of other sex, e.g. Lady Health Visitor)

Preservation of Culture: Article 28;

• citizens have a right to preserve their language, script and culture

In addition to the Fundamental Rights described above, the Constitution also lists several ‘Principles of Policy’. The government is to make policies accordingly, which the government, all public institutions and all government servants are expected to uphold.

The executive is bound to implement these rights while the judiciary is bound to take notice of any violations and provide redress on individual complaints or take notice of its own (called ‘suo motu’ notice) of any gross violations of a collective right. We can not rise to the heights of glory if our 80% population will be in destitute life.

In this respect first responsibility of government is to bring out law enforcement institutions from the influence of land lords (Waderas Sardars) especially police. No one should be arrested or be acquitted with the order of any Land Lord. Secondly the base and beauty of any society or nation is education, the government and cognizant people of the society should take effective steps for the education of the promote areas. This is very powerful source which may make people responsive about their rights, and make them free from any undue force and influence. Thirdly government should provide them basic facilities of life, especially easy access from villages to cities, by making roads and transport, good and efficient communication system, and infrastructure may show them the real reflection of life.

Rafique Ahmed Mangrio holds an LLB (Honors) Degree from International Islamic University Islamabad and is currently a candidate for LLM.