Fundamental Rights in Pakistan
Fundamental Rights are enshrined in the
Constitution of Islamic Republic of
Pakistan. Chapter 1 of the Constitution
contains articles about the fundamental
rights. Articles 8 to 28 of the constitution
deals with the all fundamental rights
provided to the citizens of Pakistan.
Followings are the fundamental rights
guaranteed to the citizens of Pakistan
under constitution.
No person shall be deprived of life or
liberty, save in accordance with law
(article 9)
Safeguard as to arrest and detention. All
arrested person must be informed of
grounds of their arrest, they have right to
consult and defended by lawyer of their
choice.
Right of fair trial under article 10A
Slavery, FORCED labour is prohibited
and no child under age of 14 year be
employed in factory and mines.
There shall be protection against
retrospective punishment
There shall be protection against double
punishment and self-incrimination.
Freedom of movement to everyone
Freedom of assembly for all citizens
Freedom of association for all citizens
There shall be freedom of TRADE,
business and profession for all citizens.
Freedom of speech for all citizens
All citizens shall have right to have access
to information in all matters of public
importance under article 19A.
Freedom to profess religion and to manage
religious institution in country
Safeguard against the taxation for the
purposes of any particular religion.
Safeguard as to educational institutes in
respect of religion etc.
All citizens have right to acquire, hold and
dispose of property in any part of
Pakistan.
Protection of property rights of owners.
All citizens are equal and there shall be no
discrimination on bases of sex etc.
Free and compulsory education to all
children of age 5 to 16 by Government
No discrimination in respect of access to
public places.
Safeguard against discrimination in
services.
All citizens have right to preserve their
particular language, script and culture
Article 199: Jurisdiction of High Court
1. Subject to the Constitution, a High
Court may, if it is satisfied that no other
adequate remedy is provided by law-
a. on the application of any aggrieved
party, make an order-
i. directing a person performing, within
the territorial jurisdiction of the Court,
functions in connection with the affairs of
the Federation, a Province or a local
authority, to refrain from doing anything
he is not permitted by law to do, or to do
anything he is required by law to do; or
ii. declaring that any act done or
proceeding taken within the territorial
jurisdiction of the Court by a person
performing functions in connection with
the affairs of the Federation, a Province or
a local authority has been done or taken
without lawful authority and is of no legal
effect; or
b. on the application of any person, make
an order-
i. directing that a person in custody within
the territorial jurisdiction of the Court be
brought before it so that the Court may
satisfy itself that he is not being held in
custody without lawful authority or in an
unlawful manner; or
ii. requiring a person within the territorial
jurisdiction of the Court holding or
purporting to hold a public office to show
under what authority of law he claims to
hold that office; or
c. on the application of any aggrieved
person, make an order giving such
directions to any person or authority,
including any Government exercising any
power or performing any function in, or in
relation to, any territory within the
jurisdiction of that Court as may be
appropriate for the enforcement of any of
the Fundamental Rights conferred by
Chapter 1 of Part II.
2. Subject to the Constitution, the right to
move a High Court for the enforcement of
any of the Fundamental Rights conferred
by Chapter 1 of Part II shall not be
abridged.
3. An order shall not be made under clause
(1) on application made by or in relation to
a person who is a member of the Armed
FORCES of Pakistan, or who is for the
time being subject to any law relating to
any of those FORCES , in respect of his
terms and conditions of service, in respect
of any matter arising out of his service, or
in respect of any action taken in relation to
him as a member of the Armed Forces of
Pakistan or as a person subject to such
law.
4. Where-a. an application is made to a
High Court for an order under paragraph
(a) or paragraph (c) of clause (1), and
b. the making of an interim order would
have the effect of prejudicing or
interfering with the carrying out of a
public work or of otherwise being harmful
to public interest or State property or of
impeding the assessment or collection of
public revenues, the Court shall not make
an interim order unless the prescribed law
officer has been given notice of the
application and he or any person
authorised by him in that behalf has had
an opportunity of being heard and the
Court, for reasons to be recorded in
writing, is satisfied that the interim order-
i. would not have such effect as aforesaid;
or
ii. would have the effect of suspending an
order or proceeding which on the face of
the record is without jurisdiction.
4A. An interim order made by a High
Court on an application made to it to
question the validity or legal effect of any
order made, proceeding taken or act done
by any authority or person, which has been
made, taken or done or purports to have
been made, taken or done under any law
which is specified in Part I of the First
Schedule or relates to, or is connected
with, State property or assessment or
collection of public revenues shall cease to
have effect on the expiration of a period of
six months following the day on
which it is made:
Provided that the matter shall be finally
decided by the High Court within six
months from the date on which the interim
order is made.
5. In this Article, unless the context
otherwise requires,- "person" includes
any body politic or corporate, any
authority of or under the control of the
Federal Government or of a Provincial
Government, and any Court or tribunal,
other than the Supreme Court, a High
Court or a Court or tribunal established
under a law relating to the Armed Forces
of Pakistan; and "prescribed law officer"
means
a. in relation to an application affecting the
Federal Government or an authority of or
under the control of the Federal
Government, the Attorney-General, and
b. in any other case, the Advocate-General
for the Province in which the application is
made.
Writ
The term “Writ” has its origin from
Common Law. Basically, it means formal
written orders issued by Superior Courts
to subordinate courts or Government
Officials. The purpose of write is to
preserve and protects the fundamental
rights of an individual.
In Pakistan Article 199 of the Constitution
is about write in High Court. When there
is no other remedy available to person, he
can file write petition under article 199 of
the Constitution of Pakistan.
Types of Writ
There are many types of writes but in
Pakistan followings are commonly used.
1-Writ of Habeas Corpus
The Latin Term Habeas Corpus means “to
produce the body”. This write is issued to
institution or prison to release the prisoner
or bring it before the court.
2-Writ of Mandamus
This writ is issued for lower courts or
government official in case where courts or
officials are not following the laws. Simply
it means an order to do an act which a
person is bound by law to do.
3-Writ of Certiorari
This write is issued when a lower court
made a decision which is incorrect or
inappropriate in eyes of higher court. In
this write higher courts are allowed to call
for record and revise the decision of lower
courts or officials.
4-Writ of Quo Warranto
It simply means “under what authority
you are holding this office”. This write is
issued when a person claims any power
without legal authority behind it or when
official done any act without backing of
law.
5-Write of Prohibition
In circumstances where the case is outside
the jurisdiction of lower courts, the higher
courts can issue the Write of Prohibition to
stop the lower court’s proceedings
Short Notes on Writs
Habeas Corpus
A writ of Habeas Corpus is in the nature
of an order calling upon the person who
has detained another to produce the latter
before the court in order to let the court
know on what ground he has been
confined and to set him free if there is no
legal justification for the imprisonment.
The words 'Habeas Corpus' literally mean
'You may have the body'. The writ may be
addressed to any person whatever, an
official or a private person who has
another person in his custody and
disobedience to the writ is met with
punishment for contempt of court.
The different purposes for which the writ
of Habeas Corpus is available are as
follows: (a) for the enforcement of
fundamental rights (b) It will also issue
where the order of imprisonment or
detention is ultra-wires the state which
authorises the imprisonment or detention.
The writ of habeas corpus is, however, not
issued in the following cases: (i) where the
person against whom the writ is issued or
the person who is detained is not within the
jurisdiction of the court (ii) To secure the
release of a person who has been
imprisoned by a court of law on a criminal
charge (ii) To interfere with a proceeding
for contempt by a court of record or by
parliament.
Mandamus
The Latin word mandamus means "we
order". The writ of mandamus is an order
of the High Court or the Supreme Court
commanding a person or a body to do that
which it is his, of its, duty to do. Usually, it
is an order directing the performance of
ministerial acts. A ministerial act is one
which a person or body is obliged by law
to perform under given circumstances.
For instance, a licensing officer is obliged
to issue a license to an applicant if the
latter fulfils all the conditions laid down
for the issue of such license. Similarly, an
appointing authority should issue a letter
of appointment to a candidate if all the
formalities of selection are over and if the
candidate is declared fit for the
appointment.
But despite the fulfilment of such
conditions, if the officer or the authority
concerned refuses or fails to issue the
appointment letter, the aggrieved person
has a right to seek the remedy through a
writ of mandamus.
There are three essential conditions for the
issue of a writ of mandamus. First, the
applicant must show that he has a real and
special interest in the subject matter and a
specific legal right to enforce. Secondly, he
must show that there resides in him a legal
right to the performance sought, and
finally, that there is no other equally
effective, convenient and beneficial
remedy.
Certiorari
Writ of certiorari is a writ which is issued
against body enjoying legal authority and
through this authority this body enjoys the
powers to scrutinize the legal aspect of
legally enforceable rights and duties, their
outcome and other related matters.
This body is under legal duty to not only
exercise its legal authority but to exercise
it duly on the floor of well-established
principle of law. Legal authority implies
obligation to see and appreciate legal pros
and cons in legal manner, what is legal and
proper is deserved to be appreciated by the
learned world of experts and what is
arbitrary is deserved to be corrected
through issuance of writs.
Thus, writ of certiorari is an order of the
High Court issued against subordinate
courts, tribunals, authorities to transfer to
it the record of proceedings pending with
them for scrutiny. After scrutiny and
adjudging the case in reference to the
objection raised court will pass
appropriate order which may include
quashing of proceedings at subordinate
court/tribunal/authority. Writ can be
issued against judicial as well as quasi-
judicial body.
"Grounds for issuance of Certiorari",
Writ of certiorari can be issued at any of
the following grounds.
(a) Want or excess of jurisdiction
(b) Violation of procedure required to be
followed.
(c) Violation of principle of natural justice.
(d) Error of law apparent on the face of the
record.
Prohibition:
Writ of certiorari and writ of prohibition
both lie against body exercising legal
authority. Like certiorari writ of
prohibition can also be issued against body
exercising judicial or quasi-judicial
powers.
Writ of prohibition is nugatory in nature.
It prevents/prohibits the inferior court
from exercising assuming jurisdiction
which is not vested in it by law. Writ of
prohibition lies for both excess and
absence of jurisdiction.
Both writs look alike but there is major
difference between the two on the basis of
stage at which they are issued. If a legal
authority takes up a dispute on which it
has no jurisdiction and decides the matter,
then other party can approach High Court
on the ground of absence of jurisdiction
through a petition for issuance of writ of
certiorari, however if the case is still
pending and has not been finally decided
yet then the aggrieved party can ask for
issuance of writ of prohibition and thereby
can prevent the inferior authority from
proceeding further in the case.
There may be a case where proceeding of
an inferior court is partly within and
partly without jurisdiction. In those cases,
writ of prohibition will lie only against acts
which are in excess/without jurisdiction.
Quo Warranto
The writ of quo warranto is a common law
process of great antiquity. According to
this, the High Courts or the Supreme
Court may grant an injunction to restrain
a person from acting in an office to which
he is not entitled and may also declare the
office to be vacant.
What the Court has to consider in an
application for a writ of quo warranto is
whether there has been usurpation of an
office of a public nature and an office
substantive in character, i.e., an office
independent in title. It is a remedy given by
law at the discretion of the Court and is not
issued as a matter of course.
An application for the issue of a writ of quo
warranto is maintainable only in respect of
offices of public nature which are the
creation of statute and not against private
institutions. In the case of domestic
tribunals, the order of the tribunal will not
be disturbed unless it is attacked on the
ground of bonafides or vires.
Thus, it has been held that a member of a
Legislative Assembly has every right to
know by what authority the Speaker of the
body functions as such, if he bonafide
thinks that the Speaker holds his office
without authority and the application for a
writ of quo warranto is maintainable.
The president of Pakistan
There shall be a head of state as a
president in Pakistan according to its
constitution under the article 41. He shall
represent the unity of the Islamic republic
of Pakistan and shall be a nominal head of
the state with the real powers exercise by
the prime minister and his/her cabinet.
Emergency Powers:
The president of India can declare three
kinds of emergencies as:
Emergency arising out of war, external
aggression or armed rebellion.
Emergency arising out of the failure of
the constitutional machinery in the states.
Emergency arising out of the threat to
financial stability.
Powers of the President of Pakistan
Executive Powers:
The federation shall exercise its authority
in the name of the president under article
90 of the constitution.
The elected prime minister is called to
assume the PM office by the president who
also takes oath of office from the elected
prime minister.
A federal minister or minister of state shall
also make before the president oath of
their office.
The PM may resign his/her office
by writing under his/her hand addressed
to the president.
The president also appoints provincial
governors, members of the Islamic
Council, members of the council of
common interests, members of Council,
members of the National Finance
Commission and chairman and members
of the Public Service Commission.
Legislative Powers
The president can summon either house
or both the houses of the parliament at
joint sitting as he thinks fit.
He/she may address either house or houses
assembled together.
The president can dissolve the National
Assembly only on the advice of the prime
minister.
A bill passed by both the houses of the
parliament is to be presented to the
president for his/her assent to make it
an act of parliament.
The president may issue and promulgate
an Ordinance which shall have the same
force and effect as an act of parliament.
Judicial Powers:
The president appoints the Chief Justice of
Pakistan and other judges of the Supreme
Court after consultation with the Chief
Justice. He/she can remove the judges of
the Supreme Court and high courts only
on the recommendation of the supreme
judicial council.
The president has power to grant pardon,
reprieve and respite and to remit, suspend
or commute any sentence passed by
any court.
Financial Powers:
The president appoints the Auditor-
General, members of the National
Economic Council and National Finance
Commission.
A money bill also be presented before
president for his/her assent.
No bill or amendment which imposes a tax
or duty, whose income is assigned to any
province, shall be introduced or removed
in the National Assembly except with the
previous sanctions of the president.
He/she can also declare financial
emergency in accordance with a financial
crisis.
Explain the composition of the Parliament
of Pakistan and discuss membership,
function and power of the
National Assembly?
Composition of Parliament
According to section 50 of the constitution,
there shall be a Parliament of Pakistan
consisting of the President and two Houses
to be known respectively as the National
Assembly and the senate.
Explanation The constitution of 1973 by
providing bi-cameral legislature has met a
long-standing demand of the people of the
small Provinces. Article 50 proclaims that
there shall be a Parliament consisting of
the President and two houses to be known
as the National Assembly and the Senate.
The national legislature of Pakistan
consists of the National Assembly, the
senate and the President. In the matter of
enactment of law all of them are to act
together, each bring complimentary to the
other.
Membership
The National Assembly consist of 332
members to the Senate 87 members. The
national assembly is to be elected on the
basis of adult franchise by direct, free and
secret vote.
Composition of National Assembly
The National Assembly presently consist
of 332 members to be elected on the basis
of adult franchise by direct free and secret
vote. The seats in the national assembly
have been allocated to each Province, the
federally administered tribal areas and
federal capital on the basis of population.
Qualification of voter – A person is entitled
to vote if –
(1). He is a citizen of Pakistan,
(2). He is not less than 18 years of age,
(3). His name appears on the electoral roll
and,
(4). He is not declared by a competent
court to be unsound mind.
Duration – The term of the National
Assembly is 5 years to be counted from the
day of its first meeting, after the expiry of
which period it will automatically stand
dissolved, unless sooner dissolved under
Article 58 of the Constitution.
Function and powers
The National Assembly is competent to
pass laws on the matters relating to part-I
of the federal legislative list. It may also
pass laws with regard to matters in part-II
of the federal legislative list or the
concurrent legislative list. Besides the
National Assembly has the power of
controlling the finances of the federation.
The budget and all proposals for
expenditure or taxation are to be
submitted to the National Assembly. But
certain items of expenditure such as the
salaries ad allowance of the President,
Judges of the Supreme Court, the Chief
election Commissioner and the attorney
general are not to be submitted for vote in
the National Assembly.
Power to control executive
The National Assembly has also the power
to control the Executive. The Ministers are
usually to be chosen from the members of
the National Assembly and are the
Government of the country.
Money bill
A money bill can only originate in the
National Assembly and after it has been
passed by it, it is not required to be
transmitted to the senate, but is to be
presented to the President for his assent.
Speaker of National Assembly
Introduction
National Assembly is lower house of
bicameral Parliament of Pakistan.
Speaker is the presiding officer of the
National Assembly. Speaker enjoys great
respect in the house In Pakistan, speaker is
impartial person.
Relevant Provisions
Article 53 constitution of Pakistan
Qualification
He should be member of National
Assembly.
Procedure for Election of Speaker of
National Assembly
Following points are important to explain
it
1. Election in First Meeting of New
National Assembly
After a general election, new National
Assembly elects its Speaker at its first
meeting.
2. Exclusion of any Other Business
All its first meeting, new National
Assembly elects its Speaker and does this
to the exclusion of any other business.
3. Presiding Officer of First Meeting of
New National Assembly
Speaker of former National Assembly
presides over first meeting of new National
Assembly for election of Speaker of new
National Assembly.
4. Election of Speaker when Office of
Speaker Become Vacant
Whenever office of Speaker of National
Assembly becomes vacant, National
Assembly elects another member as
Speaker.
5. Oath of Office: A- 53(2) The Speaker
shall take oath of office before National
Assembly. The form of oath set out in the
third schedule.
Term of Office
Term of office of the Speaker is usually 5
years.
Removal or Terminat6ion of Speaker
The Assembly shall give the notice of
resolution of non-confidence seven days
earlier. If the resolution is passed by the
majority of the total membership, the
speaker shall cease to hold the office and
when such resolution is under process the
speaker cannot preside over the house.
Power and Functions of Speaker of
National Assembly
Following are the power and functions of
speaker of National Assembly
1. Judging the Validity of Money Bill
It is the power of speaker to judge the
validity of money bill. He decides whether
a bill is money bill or otherwise.
2. Preside the Session of House
It is the most important duty of the
speaker to preside over the house.
3. Maintenance of Disciplines
Speaker has power to maintain the
discipline of the house.
4. Casting Vote
Speaker has no right to vote but when
there are Duality votes he can use his vote.
5. Grant Permission of Questions
Speaker is empowered to grant permission
of question to members in the house.
Speaker can approve or over-rule the
adjournment motion in the house.
6. Acting President
In absence of chairman of senate. Speaker
is officiating president.
7. Summon the Session of National
Assembly
Speaker is empowered to summon the
session of National Assembly on the
request of one fourth of total members of
the Assembly.
Conclusion
To conclude that Speaker is the presiding
office of National Assembly. He is elected
by the house. He is not a party man. His
most important function is to preside over
the Assembly and maintain discipline in
the house.
Salient Feature of the 1973 Constitution
of Pakistan:
The present Constitution is the third
constitution of the country which was
drafted and passed by the National
Assembly of Pakistan on April 10, 1973. It
was authenticated by the president on
April 12, 1973 and enforced on August 14,
1973. Following are the main
characteristics of this constitution.
1) A Written Constitution
The Constitution of 1973 is written with a
preamble, 280 Article, 6 Schedules and a
few Amendments. Political Usage’s and
Traditions are yet to emerge and develop
side by side with the constitution of
Pakistan.
2) Flexibility
The Constitution is neither too rigid like
the American Constitution nor too flexible
like the British Constitution. It can he
amended if 2/3 majority of the total
strength of the National Assembly
approves an amendment in it and when the
same is absented to by the Senate with
majority of its total strength.
3) Republican Form of Government
According to the Constitution, Pakistan
shall be an Islamic Republic. The Head of
the State shall be elected by the parliament
in a joint sitting for a term of five years. He
may be re-elected for another term also.
4) Federal Form of Government
Pakistan shall be a Federation consisting
of the provinces of Sind, Punjab, N.W.F.P
and Baluchistan. Powers of the Federation
have been enumerated in the Federal
Legislative list part-I and II and residuary
powers belong to the provinces Powers
common to both the federal and the
provincial Governments have been
enumerated in the Concurrent List.
5) Parliamentary Form of Government
The Constitution provides for
Parliamentary form of Government both
at the centre and in the provinces. Both the
Prime Minister and the Chief Ministers
are held responsible to the National and
Provincial Assemblies. They continue in
office as long as they command confidence
of the assemblies.
They may be removed by the assemblies
through a vote of No-Confidence.
6) Bicameral Legislature
The Legislature will Bicameral. The
Lower House is called the National
Assembly directly elected by the people on
the basis of one man one vote for a term of
5 years. The upper House is called the
Senate elected by the Provincial
Assemblies on the basis of Proportional
Representation. The National Assembly is
subject to dissolution but not the Senate.
7) Fundamental Rights
The Constitution grants and protects the
fundamental rights of the citizens of
Pakistan. They include the right to life,
property, profession, liberty of thought
and expression, freedom of association,
religion, equality of citizens etc. In case of
their violation, the affected person may go
to the Courts for seeking redress of his
grievances.
8) Pakistan to be a Welfare State
The Constitution reflects the spirit of a
Welfare State. It provides that •illiteracy
shall be removed; educational and
economic interests of backward classes
and areas shall be promoted; just and
human conditions of work shall be
provided; prostitution, gambling and
consumption of alcoholic liquor shall be
prohibited and well-being of the people,
irrespective of caste, sex, creed or race will
be secured by raising their standard of
living. Basic necessities of life like food,
housing, clothing, education, and medical
relief shall be provided to the citizens who
are permanently or temporarily unable to
earn their livelihood.
9) Independence of Judiciary
Although the members of the judiciary are
appointed by the president yet the powers
to remove them from their offices have not
been given to him for ensuring
independence of judiciary. The judges can
be removed by the president only when the
Supreme Judicial Council of Pakistan so
advises him. The Constitution also
provides independence of the judiciary
from the Executive.
Council of Islamic Ideology
Council of Islamic Ideology (Urdu: ‫اِسالمی‬
‫ )نظریاتی کونسل‬is a constitutional body of the
Islamic Republic of Pakistan, responsible
for giving legal advice on Islamic issues to
the government and the Parliament.[1] The
body was founded in 1962 under the
government of Ayub Khan.
Functions
The council has the following functions:[2]
To recommend laws conforming
to Qur'an and Sunnah to
the Parliament and Provincial Assemblies.
To advise the Parliament, Government of
Pakistan, President of Pakistan,
or Governor on any question referred to
the Council as to whether a proposed law
is or is not repugnant to the Injunctions of
Islam.
To make recommendations to bring
current laws into conformity with Islamic
injunctions.
To compile guidance for
the Parliament and Provincial Assemblies.
However, the Government can make a law
before advice is furnished by the council.
The council is also responsible for
submitting an annual interim report,
which is discussed in
the Parliament and Provincial
Assemblies within six months of its
receipt.[2] Recently, the Council was
strongly criticized in many traditionalist
quarters for its recommendations on the
procedure for khula.
Federation of Pakistan v. Maulvi
Tamizuddin Khan
Federation of Pakistan v. Maulvi
Tamizuddin Khan (1955) is a court case of
the Dominion of Pakistan. The Federal
Court of Pakistan (now the Supreme
Court of Pakistan) ruled in favor of
the Governor General of Pakistan's
dismissal of the 1st Constituent Assembly
of Pakistan. The dismissal was legally
challenged by Maulvi Tamizuddin Khan,
the president of the assembly. Except one
dissenting opinion, the majority of the
court supported the dismissal on grounds
of the doctrine of necessity. The verdict
was considered a blow to democratic
norms, which had ramifications in
modern-day Pakistan and Bangladesh.
Facts
In 1954, Governor General Ghulam
Muhammad dissolved the Constituent
Assembly of Pakistan. Earlier, he
dismissed Prime Minister Khawaja
Nazimuddin who enjoyed the confidence
of the constituent assembly. Maulvi
Tamizuddin Khan, the President of the
Constituent Assembly and a
representative from East Bengal,
challenged the Governor General's actions
in the Sindh High Court, where the
dissolution was ruled as ultra vires. The
federal government appealed in the
country's apex Federal Court.
Judgement
In 1955, the Federal Court led by Chief
Justice Muhammad Munir ruled in
support of the Governor General. The
court suspended the decision of the High
Court and held the Governor General, and
not the Constituent Assembly, to be
the sovereign authority. The court opined
that royal assent can only be given by the
Governor General as Pakistan was still
a dominion and hence not a fully
independent country. It gave the doctrine
of necessity as the grounds for its decision.
Nawaz Sharif vs President of Pakistan
After independence, Pakistan popular it’s
weak political institutions and powerful
Army. So, these major factors, Pakistan
not constitutional development and many
civil Governments have been dismissed.
When National Assembly has been
dissolved and Prime Minister has been
sent home, than the political leader have
filed cases in superior courts against such
undemocratic steps and Judiciary plays a
very important role in the interpretation of
the law. The important and leading case in
the History of Pakistan is Muhammad
Nawaz Sharif vs President of Pakistan case
is one of them.
Bench of Supreme Court
Chief Justice: Nasim Hassan Shah
Justice: Shafi-ur-Rehman
Justice: Saad Saood Jan
Justice: Abdul Qadeer Chaudhary
Justice: Ajmal Mian
Justice: Muhammad Afzal Lone
Justice: Sajjad Ali Shah
Justice: Muhammad Rafique Tarar
Justice: Saleem Akhter
Justice: Saeed uz Zaman Siddiqui
Justice: Fazal Elahi Khan
Facts of Case
Following are the facts of case Nawaz
Sharif vs President of Pakistan
1. Differences with President Although
both Prime Minister Nawaz Sharif and
President Ghulam Ishaq Khan were
conservatives, yet difference over
authority emerged between them and such
difference were intensified in 1993.
2. Address to Nation
In April 1993, Prime Minister Nawaz
Sharif addressed nation and alleged that
some political elements had gathered
under umbrella of President Ghulam
Ishaq Khan and were conspiring to
overthrow his elected government.
3. Dissolution of National Assembly and
Dismissal of PM
After Nawaz Sharif’s address to nation,
President Ghulam Ishaq Khan states that
government of federation could not be
carried out in accordance with provisions
of constitution of Pakistan. Therefore, he
dissolved National Assembly and
dismissed Prime Minister Nawaz Sharif
with his cabinet.
4. Institution of Case
After dissolution of National Assembly
and dismissal of government, Nawaz
Sharif filed this case in Supreme Court of
Pakistan.
Decision of Supreme Court
Following points are important to discuss
decision of Supreme Court
1. Unlawful action of President
In these circumstances, the dismissal of the
Prime Minister along with his Cabinet and
the dissolution of the National Assembly
under the purported exercise of powers
conferred on the President under Article
58(2)(b) could be upheld. The action taken
did not fall within the ambit of this
provision. This unlawful action moreover
was also violation of Fundamental right.
2. Majority basis decision
By majority (of 10 to 1) it was held that the
order of the April 1993, passed by the
President of Pakistan is not within the
powers conferred on the President under
Article 58(2)(b) of the constitution and
other enabling powers available to him in
that behalf and has, therefore, been passed
without lawful authority and is of no legal
effect.
3. Consequence of Court order
As consequences of our order, the National
Assembly, Prime Minster and Minister
and the Cabinet shall stand restored and
entitled to function as immediately before
the impugned order was passed.
Conclusion
To conclude, it can be stated that some
political critics consider judgment of
Supreme Court in this case as a milestone
in history of judiciary of Pakistan. They
explain this reason in favor of their
opinion that it was for first time that
President’s exercise of powers under
Article 58(2)(b) of constitution was not
accepted and was declared
unconstitutional and illegal.
Benazir Butto vs Federation of Pakistan
During General Zial-ulHaq’s regime,
amendments were made in various laws
and different orders and ordinances were
passed. Benazir Bhutto challenged some of
these amendments and orders through two
cases. Among these case first is
remembered as Benazir Bhutto vs
Federation of Pakistan PLD 1988 SC 416
and other is remembered as Benazir
Bhutto vs Federation of Pakistan PLD
1988 SC 66.
Bench of Supreme Court
Chief Justice: Sajjad Ali Shah
Justice: Saleem Akhtar
Justice: Fazal Ilahi Khan
Justice: Zia Mahmood Mirza
Justice: Irshad Hasan Khan
Justice: Raja Afrasiab Khan
Justice: Munawar Ahmad Mirza
Facts of Cases
Following are the Facts of the case
1. Facts of Case of Benazir Bhutto vs
Federation of Pakistan PLD 1988 SC 416
Following are the points are important to
explain it.
1.1 Political Parties Act, 1962
General Zia-ul-Haq’s government made
different amendments in Political Parties
Act, 1962. Through this case, it was alleged
that these amendments were in violation of
those fundamental rights, which
constitution of Pakistan has provided in
form of freedom of association and
equality of citizens.
1.2 Freedom of Association Order, 1978
Different powers were granted under
Freedom of Association Order, 1978.
Through this case, these granted powers
were alleged as unconstitutional.
1.3 Article 270-A of Constitution of
Pakistan
Article 270-A of constitution of Pakistan
affirmed different laws, order and
ordinances, which General Zia-ul-Haq
passed after imposition of martial law.
Through this case, it was alleged that
Article 270-A curtailed rights of citizens
especially right to form some political
party or to be member of some political
party. Even it was also alleged that Article
270-A was in contradiction of Article 2-A
of constitution.
Facts of Case of Benazir Bhutto vs
Federation of Pakistan PLD 1988 SC 66
Section 21(1)(b) of Representation of
People Act provided provisions for
allocation of prescribed symbols to each
contesting candidate. Through this case,
this section was challenged as
unconstitutional.
Conclusion
To conclude, it can be stated that a
comparison can be made between these
two cases and case of Asma Jillani vs
Federation of Pakistan judgments of all
these three case were announced after end
of military regimes of General Yahya
Khan and General Zia-ul-Haq.
Asma Jilani vs Federation of Pakistan
Judiciary plays a very important role in
the interpretation of the statutes and laws.
The judiciary has a pivotal role in the
development of law. It develops law by
giving judgments which become
precedents. So precedents may be
regarded as source of law. In Pakistan to
the superior Courts gave judgments which
became precedents. There have been a lot
of important and leading cases in the
history of Pakistan. Asma Jilani vs
Government of the Punjab case is one of
them.
Bench of Supreme Court
Chief Justice: Hamood ur Rehman
Justice: Waheed ud Din Ahmad
Justice: Muhammad Yaqub Ali
Justice: Salahud din Ahmad and
Justice: Sajjad Ahmad

Facts of Case
The facts of the Asma Jalani v/s
Government of Punjab case are following:
1. Challenge of Malik Altaf Gauhar’s
Detention
The appeals were filed because of the
detention of Malik Altaf Gauhar and
Malik Ghulam Gillni. The detention of
both of them was challenged.
2. Persons challenged the detention
The persons who challenged the detention
were Miss Asma Jilani who filed appeal for
the release of Malik Ghulam Jilani and the
other one was Zarina Gauhar who filed
appeal for the release of her husband Altaf
Gauhar.
3. Court in which Petition filed
The writ petition was filed by Asma Jilani
in the Lahore High Court for release of her
father Ghulam Jillani and Mrs Zarina
Gohar filed an appeal in Sindh-
Balochistan High Court.
4. Law under which Mr. Altaf Detained
Altaf Gauhar and Malik Ghulam Jilani
were detained under Martial Law
Regulation No. 78 of 1971.
Principles of Law or Rule of Law
Following are the Principles of law or Rule
of law.
i. Principle laid down in State Vs Dosso
It was held in this appeal that principles,
which were laid down in State vs Dosso,
were not justified.
ii. Constitution of Pakistan 1962
It was settled in this appeal that courts
gave full effect to constitution of 1962, and
all laws made and acts of various civil and
military governments became lawful and
valid due to that recognition, which
constitution of 1962 and courts gave them.
iii. Court Duty
It was held in this appeal that court’s
judicial function was to adjudicate upon a
real and present controversy, which a
litigant raised before it, and if litigant did
not chose to raise a question, it was not for
court to raise it suo motu.
iv. Bias in Judge
It was settled in this appeal that mere
association with drafting of a law could not
disqualify a judge from interpreting that
law in light of those arguments, which
presented before him.
v. Jurisdiction
It was held in this appeal that superior
courts are judge of their own jurisdiction.
vi. Proclamation of Martial Law
It was decided in this appeal that General
Yahya Khan’s proclamation of martial
law was illegal.
vii. Doctrine of Necessity
Although doctrine of necessity was once
again pleaded to defend military regime of
General Yahya Khan, yet same was
rejected through judgment of this appeal.
Conclusion
To conclude, it can be stated that judgment
of case of Miss Asma Jillani was though
announced after end of General Yahya
Khan’s rule, yet it initially led to end of
Bhutto’s martial law and finally it paved
way for restoration of democracy and for
adoption of constitution of 1973.
Supreme Judicial Council and its
Functions
Introduction
Supreme Judicial Council is a unique
institution. Supreme Judicial Council has
been established under constitution of
Pakistan to investigate incapability of a
judge of Supreme Court or High Court to
perform duties of his office or his guilt of
misconduct.
Relevant Provisions
Article 209 to 211 of 1973 Constitution of
Pakistan are relating to supreme judicial
council.
Organization of Supreme Judicial
Council; Article 209 (2)
Supreme Judicial Council consists of;
The Chief Justice of Pakistan
The two next most senior Judges of
Supreme Court and
The two most senior Chief Justices of High
court
Functions of Supreme Judicial Council
Following are the functions of supreme
judicial council
1. Making Inquiry
Inquiry regarding incapability of judge of
Supreme Court or High court due to
physical or mental incapacity or inquiry
regarding guilt misconduct of judge of
Supreme Court or High Court.
2. Opinion
If there is a difference of opinion amongst
members of Supreme Judicial Council,
opinion of majority prevails, and the
report of the Council to the President is
expressed is terms of view of the majority.
3. Removal of Judge
If the Supreme Judicial Council reports to
the President that it is of the opinion that
judge of Supreme Court or High Court is
incapable of performing the duties of his
office or has been guilty of misconduct,
and that he should be removed from office,
the President can remove the Judge from
office.
4. Code of Conduct; Article 209(8):
Supreme Judicial Council issue a code of
conduct, which is to be observed by Judges
of Supreme Court and High Courts.
5. Powers
It is also the function of the council and its
power of issuing directions or orders for
securing the attendance of any person or
for discovery or production of documents.
The orders issued by the council in this
connection are enforceable as though, had
been issued by the Supreme Court.
6. Bar of Jurisdiction; Article 211:
The actions taken or reports made by the
council shall not be questioned in any
court of law.
Conclusion
To conclude, it can be stated that Supreme
Judicial Council cannot be completed
without Chief Justice of Pakistan and its
verdict is not valid without Chief Justice of
Pakistan.
Election of the chairman and deputy
chairman, Duties of the Chairman
Before, transacting any business, except
the oath taking ceremony, the senate will
choose its Chairman and Deputy
Chairman among its members. If the office
of Chairman or Deputy Chairman
becomes vacant, the Senate will elect
another member as a Chairman or Deputy
Chairman as the case may be. Oath of the
office. It is circumventing upon the
Chairman and Deputy Chairman to take
an oath before the Senate before entering
upon their offices in the form set out in the
Third Schedule.
Vacancy in the office
The office of the Chairman or Deputy
Chairman may become vacant if.
He resigns his office,
He ceases to be a member of the senate,
He is removed from the office.
Duties of the Chairman under constitution
The duties of the Chairman are the same
as of the Speaker. Further he is to act as
President of the State when the office of
President is vacant, or the President is
absent or is unable to perform his
functions due to any reason. Chairman or
Deputy Chairman is not provided at a
meeting of Senate when a resolution for his
removal is being considered.
Term of office
The term of office of the Chairman or the
Deputy Chairman is three year from the
day of on which he enters upon his office.
Resignation
The Chairman can resign his office by
writing under his hand addressed to the
President. The resignation of the Deputy
Chairman is to be addressed to the
Chairman.
ow chief election commissioner can be
appointed and removed from the office?
How chief election commissioner can be
appointed and removed from the office?
The chief election commissioner is
appointed by the president in his direction
and no person shall be appointed as
commissioner unless he is, or has been a
judge of the Supreme Court or is, or has
been, a judge of the high court. But it is a
condition precedent that the judge of high
court must be such who can be eligible for
appointment as judge of Supreme Court as
provided under article 177, clause 2(a). it
means that the judge of high court must
have got the standing of five years for
appointment. Before entering upon office,
the commissioner shall make before the
chief justice of Pakistan oath in the
manner prescribed in schedule-III. The
term of the office of the commissioner is
three years provided that the national
assembly may be resolution extent the
term of the commissioner by a period not
exceeding one year.
Removal of the chief election
commissioner
The commissioner shall be removed from
office in the manner prescribed under
article 209 says that on information
received from the supreme judicial council
or from any other source the president is
of the opinion that the chief election
commissioner.
(A). May be incapable of properly
performing the duties of his office by
reason of physical and mental incapacity.
(B). May have been guilty of misconduct…
The president shall direct the council
inquire into the matter, and when after
inquiry the council report to the president
that,
(A). The chief election com: is incapable of
performing the duties of his office, or has
been guilty of misconduct.
(B). He should be removed from office.
The president may remove the chief
election commissioner from office.
The constitution of the election
commissioner and also explain the duties
to be performed by the commissioner?
Election commission
An election commissioner is prior to each
election of the national assembly and
provincial assemblies. It’s constituted in
accordance with article 216 of the
constitution of 1973. Article 218 of the
constitution lays down the following
constitution of the election commission.
The election commission shall consist of…
(A). The commissioner, who shall be the
chairman of the commission and…
(B). Two members, each of whom shall be
a judge of high court concerned and with
the commissioner.
It shall be they duty of the election
commission constituted in relation to an
election to organize and conduct the
election and make such arrangements as
are necessary to ensure that the election is
conducted honestly, justly, fairly and in
accordance with law, and that corrupt
practices are guarded against.
Duties of commissioner
It is the duty of the commissioner to
prepare electoral rolls for election to the
national assembly and the provincial
assemblies and revising such rolls
annually. The commissioner organizes and
conducts the election to senate or to fill
casual vacancies in a house or a provincial
assembly. It is also function of election
commissioner to appoint election
tribunals.
Executive authorities to assist
commissioner
it shall be duty of executive authorities in
the federation and in the provinces to
assist the commissioner and election
commission in the discharge of his or their
function. (Art. 220)
Rigid constitution
A constitution, whether rigid or fixable,
can be tested by seeing the producer laid
down for its change or amendment. A
fixable constitution can legally be
amended by the same process of law
making as an ordinary law, while in a rigid
constitution specific machinery is
provided in itself by which any change or
amendment can be effected.
Qualification, appointment and duties of
Governor.
Qualification
According to article 101.
1). There shall be a Governor for each
province who shall be appointed by the
President [in his discretion (after
consultation with) the prime minister].
2). A person shall not be appointed a
governor unless he is qualified to be
elected as a member of National Assembly
and is not less than thirty-five year of age.
3). The Governor shall hold office during
the pleasure of the president (and shall be
entitles to such salary, allowances and
privileges as the President may
determine).
4). The Governor may, by writing under
his hand address to the President raising
his office.
5). The President may make such
provisions he thinks fit for the discharge of
function of a Governor (in any contingency
not provided for in this part).
Duties of Governor
The Governor of the province was
requiring to perform his function subject
to the direction of the President after
consultation with the Prime minister and
hold office during his pleasure. Under
article 105 it is laid down that as an Agent
of the President the Governor may, be
required by the President to perform such
functions, generally or in any particular
matter, as desired by him, relating to such
area in the Federation, which are not
included in any province.
Qualification of Governor
A person eligible for the office of Governor
should possess the following qualifications.
1). He should be a citizen of Pakistan.
2). He should be qualified to be elected as
a member of the National Assembly.
3). He should be not less than thirty-five
years of age.
4). He should not hold any office or profit
in the service of Pakistan or occupy any
other position carrying a right to
remuneration.
5). He shall not be a candidate for election
as a member of Parliament or a Provencal
Assembly is appointed as Governor his
seat shall become vacant.
Glimpses
1). The Governor of a province is
appointed by the president after
consultation with the Prime Minister and
hold office during his pleasure.
2). The Governor of a Province, was
required to perform his functions subject
to the directions of the president.
3). Governor to bound by the advice of the
chief minster in discharge of his function.
4). The Governor shall appoint
from among the member of the Provencal
assembly a chief minister who, in his
opinion is likely to command the
confidence of the majority of the members
of the Provincial Assembly.
Rule of Law
means principles of general application
given by state to control human behavior.
It is a body of principles, recognized and
applied by state in the administration of
justice. Any principle, which governs
human behavior generally, is law. Every
law curtail, restricts our liberty. Why we
accept law, we are slaves of law.
In simple term it means that all the people
should be governed and controlled
according to principle and should no
discrimination among them at all. It has
been generally in our civilization that
people prefer rule of law and they are
governed by rule and not by the will of a
single one. In primitive societies principles
were provided by the customs. By using
customs law was made. They had legal
status. How one can dispose of his
property, how the price is determined, all
were dealt by the customs. Customs were
used to provide principles. Customs could
not be changed easily and sometime they
could not be used to provide principles and
failed. Customs are changed very slowly;
even there is not change in 100 years. All
was dealt with old style. If change is
required, then customs are failed to
accompany the social needs. Customs had
no role after a long period. When customs
diminished then religion came and filled in
the place of customs. Apostles came with
revelation and they provided moral
conduct. This rule of conduct was based
for the controlling of human being. The
King/Queen governed once a time people.
They were superior of the society. A new
era emerged. Society was peaceful and
customary law was available to control
people. All was OK. Society was gaining
strength. All were free to choose their
profession. They joined different
professions. A new set up came with new
values that people would be governed by
the will of single one person and by the law
and principles. Concept of natural law
emerged. It was higher than the man made
laws. There was no defect in religion.
People were governed by the natural law
and not by the will of ruler. Now concept
arises:
1. No will be tried in two cases at a time.
2. Law of evidence emerged.
3. Safeguards are provided for the
retention of property.
4. Impartial judgement came into
existence.
5. No torture will be used for getting of
confession, etc.
With the passage of time, natural law gave
national law. Internal nature was same
while external nature was different. Every
state in modern time has right to have her-
own law. Natural law made national law.
Natural law comes to focus of national law.
Now people respect the parliament
because it is composed of the people of
their own representative, they have
authority; they act according to the wishes
of the people. Parties follow manifestos.
This system is better than of judges who sit
in a closed room and decide the fate of
people without knowing their wills. New
political system contains upper and lower
houses, parties, oppositions, and people
wishes. Now another problem came into
being. Representatives come from upper
class and they make laws for upper class
negating the lower class of labour, tenants,
common people etc.
What is constitution? Constitution does
mean structure and composition. Its
ordinary meaning is composition.
According to political science it means
structure of the government. Legally it
means an instrument which gives the
structure of government and which is
generally considered supreme. It is in
writing generally except British
constitution most part of which is
unwritten. The entire rest world has
written document, which is called
constitution. It provides structure of
government. State contains population,
government, people, and sovereignty.
Government of the people runs the affairs
of state. Government has three organs, i.e.,
legislation which is parliament, executive
consists on President and Prime Minister,
and judiciary which are courts.
Legislation is the body, which makes the
laws. People link to keep them together.
Government rules and runs affairs of state
by policy decisions and serves and helps
the people. Constitutions considered
supreme law of the land/state. Its organs
are relationship with people.
Original jurisdiction of Supreme
Court: The Supreme Court has exclusive
jurisdiction in the inter-government
disputes, such as:
1. Punjab v Sind
2. Punjab v Pakistan
3. Punjab v Sind and Pakistan
4. Pakistan v All Provinces
This provision is based on principle that all
the disputes whether consist on law or fact,
must be determined by Supreme Court if
the parties in case are governments either
provinces or provinces and federation. It is
undesirable that governments fight in
subordinate courts like common litigation.
This jurisdiction is exclusive because it
excludes the jurisdiction of all other courts
in respect of disputes related with
Governments.
A Court is said to have original
jurisdiction when it has power to hear and
adjudicate upon the matter in the
first instance.
Exclusive jurisdiction means jurisdiction
when Court has powers to hear, try, and
decide a case excluding any other Court.
Where Public importance is involved with
reference to Fundamental
Rights: Supreme Court is competent to
entertain a petition if considers that a
question of public importance is involved
with reference to enforcement of any of the
Fundamental Rights conferred by the
Constitution. These are the cases, which
should not be prolonged keeping in view of
their importance. Nusrat Bhutto Case,
Martial law of 1962 case, Non-Party Based
Elections are the best examples of the
public importance.
Supreme Court decides the question of
public importance. Supreme Court may or
may not entertain the case being
considering of public interest or not.
Appellate jurisdiction of Supreme
Court: Appellate jurisdiction of Supreme
Court includes:
1. Decisions of High Court such as
judgements, decrees, final order, or
sentence.
2. Cases from Federal Shariat Court.
3. Cases from Federal Services
Tribunal.
Appeal can be instituted in Supreme Court
against the decision of High Court
provided:
1. Reversal of acquittal of High
Court: If the High Court has reversed the
acquittal and enhanced the sentence in
following cases:
1. Death
2. Transportation for life.
3. Imprisonment for life.
4. Enhancement of sentence.
2. Withdrawal of Cases: Where High
Court has withdrawn a case from
subordinate Court, convicted an accused,
and sentenced serious punishment like
death, transportation for life,
imprisonment for life, or enchantment of
sentence.
3. Contempt of High Court: Where
High Court has convicted a person on the
grounds of contempt of Court.
4. Value of subject matter: Where
value and subject matter is equal or
greater than Rs. 50,000/- or any other
amount which parliament specifies is
involved.
5. Certified appeal: Where High Court
certifies that case involves substantial
question of law as to the interpretation of
constitution. Provisions of the Constitution
have to be interpreted to make it a living
document which may accommodate past,
satisfy the present, and serve to the
future.[1]
Appeal against the judgement of High
Court shall lie in Supreme Court, if
Supreme Court grants permission for
appeal.
Advisory jurisdiction: Where President
considers any matter of public opinion
may refer this question to Supreme Court
for obtaining its decision.
Supreme Court is obliged to consider the
question so raised and must submit reply
to the President.
Specific and precise question: The
question, which is referred to Supreme
Court, must be specific and precise and
Court may refuse to answer a question if it
is too general.
Qualification for membership of
parliament: Membership of parliament is
allowed subject to certain conditions such
as:
1. Pakistani: Candidature is subject to
citizenship or naturalization of Pakistan.
2. Age: He must attain age upto 25
years for the membership of National
Assembly, along-with enrollment as voter
in any electoral roll in Pakistan. Age limit
extends to 30 years for the election as
senator and the enrollment as a voter in
the territory from where he has to contest.
3. Islamic injunctions: He must be the
follower of Islamic injunctions having
good moral character and commonly
known as good Muslim.
4. Practice of Islam: He must aware of
Islamic teaching, practicing Islamic
obligatory duties, and abstain from major
sins.
5. Religious responsibilities: He is
sagacious (wise, intelligent, sharp,
rational), righteous (fair, noble, honest,
good, ethical, moral), non-profligate, and
honest and Ameen (ÅοA).
6. Non-convicted: He must not be
convicted against moral turpitude
(depravity, corruption, demoralization,
perversion, evil, sinfulness) and false
evidence.
7. Pakistan ideology: He must not be
opponent of Pakistan Ideology and worker
against integrity of Pakistan, after its
creation.
Islamic qualifications are not applicable
on non-Muslims, but such person must
have good moral reputation.
Disqualification for membership of
parliament: Member of Parliament
becomes disqualified on the following
conditions:
1. Person of unsound mind: Court
has declared him person of unsound mind.
2. Insolvent: If his insolvency is
continued.
3. Cessation of
citizenship: Cessation being Pakistani or
acquisition of alien citizenship disentitles
from being Member of Parliament.
4. Service of Pakistan: Profit in
service of Pakistan debars him to act as
parliamentarian.
5. Service in statutory body: If he is
in service of statutory body of Pakistan, it
shall cease his membership to exit.
6. Disqualified in Kashmir: Any
Kashmiri can contest in Pakistan if he is
not declared disqualified in Kashmir.
7. Anti Pakistan activities: Oppositi
on of Pakistan ideology or acting against
integrity and sovereignty of Pakistan.
8. Election offence: If Chief Election
Commissioner convicts him.
9. Dismissal from service
of Pakistan: Till five years after dismissal
from service of Pakistan.
10. Removal or compulsorily
retirement: Till three years after removal
or compulsorily retirement from the
service of Pakistan.
11. Cessation of service
of Pakistan: Till two years after cessation
from service of Pakistan.
12. Guilty of corruption and illegal
practice: Till five years after he is found
guilty of corruption or illegal practice.
13. Political conviction: Till five years
after conviction under Pakistan Political
Parties Act, 1962.
14. Contractual obligations towards
government: If he has any contract to
provide goods or supply to government.
Principles of policy: Chapter 2 of the
constitution provides principles against
which every organ of state including all
relevant authorities are liable and obliged
to follow them in so far as they relate to the
functions of the organs or authority.
Observance of principles shall be subject
to the availability of resources.
Government has to act within the available
resources. President and governments of
each province shall prepare report on the
compliance/observance of principles each
year and discuss in their respective
assemblies.
Concerned organ and authority shall
determine the compliance of principles. It
provides the rule of self-accountability.
Organ or authority responsible is also
responsible of accountability or
determination whether principles are
complied with.
This is responsibility of organ or authority
to follow these principles but they are not
accountable as for as legal responsibility is
concerned. Courts are not competent to
review the due compliance or hear the case
against the non-compliance of principles.
Principles are not questionable in any
Court.
Articles 31 to 40 provide such principles
for which state is responsible to observe in
law making.
Freedom of movement: Under Article
15, every citizen is free to move and may
remain in Pakistan. Entry in Pakistan,
movement, residing, and settlement
cannot be restricted unless law demands it
or national interest.
Restriction are divided into three (3)
kinds:
(1) Restrictions with relation to places,
i.e., airport and defence areas etc.
(2) Regulatory movement, i.e.,
restrictions by law, like you may drive but
on left side with license, on reasonable
speed etc.
(3) With relation to persons, i.e., police
custody and prisoners etc.
Reasonable restrictions can be imposed in
public interest.
Preamble of the Constitution of Pakistan
1973?
1. INTRODUCTION:
The preamble of the constitution is a brief
and well worded statement of the principle
which guided the constitution makers.
Preamble means an introductory
statement in a constitution, statute or
other document, and it explains basis and
objective of such document. A preamble
often consists of a series of clauses.
Contrary to this preamble of constitution
of Pakistan consists of objective resolution.
It is not the part of the constitutions as
article. It is merely a statement affined to
statute indicating the principles used as
guidelines by its framer.
2. MEANING OF PREAMBLE:
According to oxford dictionary of law:
“The part of a statue that sets outs its
purpose and effects”. According to black
law dictionary: “An introductory in a
constitution, statute or other document
explaining the document’s basis and
objective”. According to Osborn's concise
law dictionary: The recitals set out in the
beginning of a statute showing the reason
for the act.
3. PURPOSE OF PREAMBLE:
The preamble of the constitution is not
justifiable as other parts of the
constitution. The preamble is written in
the constitution just to determine the
ideals and the objects for the government
to achieve. It helps in the interpretation of
the provisions of the constitution when
they are ambiguous or resolve a dispute
between two conflicting provisions of the
constitution.
4. NATURE OF PREAMBLE:
Preamble is not legally enforceable. It
states principles and brief statement. All
the principles laid down in the preamble
find expression in the enactment and
provides guiding light true appreciation
and understanding of document.
5. WHEN DID PREAMBLE OF
CONSTITUTION OF 1973 BECAME
ARTICLE 2-A:
Preamble of constitution of 1973 has
become article 2-A in 1985 through
President order.
6. SALIENT FEATURE OF PREAMBLE
OF CONSTITUTION OF 1973:
Following are the salient feature of the
preamble of the constitution of 1973:-
6.1 SOVEREIGNTY:
Main salient feature of preamble of
constitution of Pakistan is that it presents
an important principle that sovereignty
belongs to Allah alone. However he has
delegated it to state of Pakistan through its
people. But it should be exercised within
those limits, which have been prescribed
by him. And it should be exercised as a
sacred trust.
6.2 DEMOCRATIC SYSTEM:
Pakistan is a democratic state. the
preamble declares that 'state shall exercise
its power and authority through chosen
representatives of the people" and " where
in the principles of democracy, freedom,
equality, tolerance as enumerated by Islam
shall be fully observed. It is representative
form of the democratic state.
6.3 INJUNCTIONS OF ISLAM:
The preamble declares that in the Pakistan
the Muslim shall be enabled to order their
lives in the individual and collective
spheres in accordance with teachings and
requirement of Islam as set out in the Holy
Quran and Sunnah.
6.4 FEDERATION WITH
AUTONOMOUS UNITS:
The territories in Pakistan or those which
in accession with Pakistan and such other
territories as may hereafter by included in
or accede to Pakistan shall form a
federation. In which the units will be
autonomous with such boundaries and
limitations on their powers and authority
as may be prescribed. It is clear that the
preamble upholds the principle of
federation and provincial autonomy as the
basis of the constitution.
6.5 SAFEGUARD INTEGRITY OF
PAKISTAN:
The territories consisting Pakistan are
integral to it. It says “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 safeguard.
6.6 GUARANTEE OF FUNDAMENTAL
RIGHTS:
The constitution of Islamic republic of
Pakistan provides the fundamental rights
to its citizen. The fundamental rights
guaranteed include: i. Equality of status. ii.
Equality of opportunity iii. Equality
before law. iv. Social, economic and
political justice etc.
6.7 PROTECTION OF MINORITIES
RIGHTS:
Preamble of constitution of Pakistan has
provided that adequate provision should
be made for minorities so that they can
freely profess and practice their religions
and develop their cultures.
6.8 INDEPENDENCE OF JUDICIARY:
It also declares that the independence of
judiciary should be fully secured.
6.9 FOR THE PROSPERITY AND
HAPPINESS OF THE PEOPLE OF
PAKISTAN AND THE WORLD:
So that the people of Pakistan may propose
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.
7. CONCLUSION:
To conclude we can say that preamble is
an introductory clause in the constitution.
It is not a substantive part of the
constitution because it does not enlarge or
control its words. But it has constitutional
significance as it indicates the sources, the
basis and the contents of the constitution.
Federal Shariat Court, it’s Jurisdiction
and Powers
1. Introduction
Federal Shariat Court of Pakistan is a
court, which has Power to examine and
determine whether Laws of the country
according to Islamic injunctions or not. It
consists of eight Muslim judges, and Chief
Justice of this court is from these eight
Judges. Chief Justice of this Court is
appointed by President of Pakistan and
other Judges of this court are appointed by
President of Pakistan after consulting the
Chief Justice of this court.
2. Qualification
The Chief Justice shall be a person, who is
or has been or is qualified to be a Judge of
the Supreme Court or who is or has been a
Permanent Judge of a high Court.
3. Tenure
Tenure of Chief Justice and other Judges
is for three years.
4. Resignation
The Chief Justice or judge may resign
from their office by his hand writing
application to the President of Pakistan.
5. Jurisdiction of Federal Shariat Court
Following points are important for
explanation of Jurisdiction of Federal
Shariat Court.
5.1 Jurisdiction about Un-Islamic Laws
Federal Shariat Court possesses
Jurisdiction to examines whether any law
or Provision of Law is against to
injunctions of Islamic or not. Federal
Shariat Court can exercise such
Jurisdiction, either through its own
motion or on petition of a citizen of
Pakistan.
5.2 Jurisdiction to decide a Law as a un-
Islamic Law
Federal Shariat court possesses
Jurisdiction to decide that any law or
Provision of law is repugnant to injunction
of Islam.
5.3 Jurisdiction of Revision
Following point for jurisdiction of
Revision
5.3.1 Calling for and Examination of
Record of a Case
Federal Shariat Court can call for and
examine record of any case, which has
been decided by an criminal court in
relation to enforcement of Hudood.
5.3.2 Suspension of Execution of any
Sentence
While calling for and examining record of
any case, which has been decided by any
criminal court in relation to enforcement
of Hudood, Federal Shariat Court can
suspend execution of any sentence.
5.3.3 Enhancement of any Sentence
Federal Shariat Court can enhance
sentence in any case, Record of which is
called for.
5.3.4 Release of an accused
While calling for and examining record of
any case, which has been decided by any
Criminal Court in relation to enforcement
of Hudood. Federal Shariat court can
release an accused on bail.
6. Power and Procedure of Federal Shariat
Court
Following point are important
6.1 Contempt of Court
Federal Shariat court has power to a high
court to punish its own contempt.
6.2 Power of Review
Federal Shariat Court possesses power to
review any of its own decisions or orders.
6.3 Framing of Rules
The Federal Shariat court can frame the
Rules for the conduct of its own
Proceeding.
6.4 Opinion of an Expert
The Federal Shariat can seek opinion of an
expert on Islamic law.
6.5 Attendance of any Person
Federal Shariat Court has power to
summon and enforce attendance of any
person.
6.6 Discovery and Production of any
Document
Federal Shariat Court possesses power to
production of documents.
6.7 Evidence on Affidavits
Federal Shariat court has power to receive
evidence on affidavits.
6.8 Issuing of Commissions
Federal Shariat Court possesses Power to
issue commission for examination of
documents.
6.9 No Court Fee
No court fee is payable in respect of any
petition or application, which is made to
Federal Shariat Court.
7. Conclusion
To conclude, it can be stated that no court,
tribunal, Supreme Court or High Court
can exercise power or jurisdiction of
Federal Shariat Court. Even a proceeding
or matter, which is within power or
jurisdiction of Federal Shariat Court,
cannot be entertained by any other court,
tribunal, supreme Court or High Court.