Part II Chapter 1 of the Constitution of Pakistan, 1973 sets out the fundamental rights. Article 8 makes them supreme over ordinary law: any law inconsistent with them is, to the extent of the inconsistency, void. Knowing which right is engaged is what turns a grievance into a petition.
The rights, in outline
- Article 9 - security of person. No person shall be deprived of life or liberty save in accordance with law. The Supreme Court has read "life" expansively, to include a life of dignity, and has used it as the foundation for environmental and public health jurisprudence.
- Article 10 - safeguards as to arrest and detention. The right to be informed of the grounds of arrest, to consult a lawyer of your choice, and to be produced before a magistrate within twenty-four hours.
- Article 10A - right to a fair trial. Added by the 18th Amendment: a fair trial and due process in the determination of civil rights and obligations or in a criminal charge.
- Article 11 - prohibition of slavery, forced labour and child labour in hazardous employment.
- Article 12 - protection against retrospective punishment.
- Article 13 - protection against double jeopardy and self-incrimination.
- Article 14 - inviolability of dignity of man, and privacy of the home. The prohibition on torture for extracting evidence is here.
- Article 15 - freedom of movement; Article 16 - assembly; Article 17 - association, including political parties and trade unions.
- Article 18 - freedom of trade, business or profession. The provision most often invoked against arbitrary licensing and regulatory action.
- Article 19 - freedom of speech, subject to reasonable restrictions; Article 19A - right to information in matters of public importance, which is the constitutional basis of the RTI statutes.
- Article 20 - freedom of religion; Articles 21 and 22 - safeguards on religious taxation and education.
- Article 23 and 24 - property. The right to acquire and hold property, and protection against deprivation save in accordance with law, with compensation on compulsory acquisition.
- Article 25 - equality before law, and the prohibition of discrimination on the basis of sex, with Article 25A guaranteeing free and compulsory education for children aged five to sixteen.
- Article 26 and 27 - non-discrimination in access to public places and in public service.
- Article 28 - preservation of language, script and culture.
Enforcement: Article 199
The High Court's jurisdiction under Article 199 is the workhorse. On the application of an aggrieved party it may direct a person performing functions in connection with the affairs of the Federation, a Province or a local authority:
- To refrain from doing what the law does not permit (prohibition)
- To do what the law requires (mandamus)
- To declare an act done without lawful authority and of no legal effect (certiorari)
It may also, on the application of any person, order that a detained person be produced (habeas corpus), and require a person holding public office to show under what authority they claim to hold it (quo warranto).
Critically, for the enforcement of fundamental rights, Article 199(1)(c) allows the High Court to make an order giving such directions as may be appropriate - and here the requirement of no other adequate remedy does not apply in the same way.
Enforcement: Article 184(3)
The Supreme Court has original jurisdiction where a question of public importance with reference to the enforcement of fundamental rights is involved. This is the basis of public interest litigation and suo motu proceedings. It is not a route for an individual grievance - the public importance threshold is real.
The limits that defeat most petitions
- Alternative remedy. Where a statute provides an appeal, a tribunal or a departmental remedy, the High Court will ordinarily require it to be exhausted first. This is the most common reason a writ petition is dismissed at the threshold.
- Disputed questions of fact. Constitutional jurisdiction is exercised on affidavit; where the case requires evidence to be led and witnesses tested, the petitioner is sent to the civil court.
- Private parties. Article 199 runs against the State and persons performing public functions. A dispute with a private employer or a private company generally does not lie in writ.
- Laches. Unexplained delay defeats a petition; the jurisdiction is discretionary.
- Service matters of civil servants go to the Service Tribunal under Article 212, which ousts the High Court's jurisdiction in those matters.
Practical points
- Identify the specific Article engaged and plead it. "My rights were violated" is not a ground.
- Exhaust or explain the alternative remedy - address it in the petition rather than waiting to be asked.
- Move promptly.
- Where a person is detained, habeas corpus can be moved by any person, not only the detainee - a family member or a stranger may apply.
- Keep the factual dispute narrow; the strongest writ petitions turn on a point of law and an admitted record.
This article is a general survey of fundamental rights and their enforcement in Pakistan. It is not advice on any specific case; consult an advocate before filing.