BUSINESS LAW ANDCORPORATE GOVERNANCE Constitutional Law and Fundamental Rights
Constitutional HistoryThe Indian Subcontinent had no written Constitution during Muslimrule between 1206 and 1857.Constitutional instrument first introduced by way of Government ofIndia Act, 1858, followed by Indian Councils Act, 1861, andGovernment of India Acts, 1892, 1909, 1919 and 1935 (321Sections and 2 Schedules).Government of India Act, 1935, together with the IndianIndependence Act, 1947, caused the legal birth of Pakistan (whichwas the result of a thoroughly Constitutional struggle).Pakistan’s Constitutional evolution thereafter was a very turbulentone.
Pakistan’s Constitutional Evolution1954 First disruption in the political process (Maulvi TamizuddinCase).1956 Pakistan’s first Constitution enacted.1958 Pakistan’s first martial law. Constitution abrogated (DossoCase).1962 Pakistan’s second Constitution promulgated. Presidentialsystem.1969 Second martial law. Constitution abrogated (Asma JilaniCase).1973 Pakistan’s third Constitution enacted. Parliamentary system.
Pakistan’s Constitutional Evolution (Continued)1977 Third martial law. Constitution held in abeyance (NusratBhutto Case).1985 Constitution of 1973 restored with several amendments.1999 Yet another military intervention. Constitution again held inabeyance (Zafar Ali Shah Case).2002 Constitution of 1973 restored with further amendments.2007 Reference against Chief Justice of Pakistan. Imposition ofextra constitutional emergency. Constitution further amended.2009 Restoration of CJ Iftikhar Mohammad Chaudhry. PCO JudgesCase (also known as the July 31 Judgment). Extra constitutionalemergency declared invalid and resulting actions nullified.2010 Enactment of Eighteenth and Nineteenth Amendments to theConstitution.
Constitution and DemocracyConstitution Justice Munawar Ahmed Mirza, quoting Chief JusticeMunir (at p. 126 of the article), “The Constitution is the supreme lawof the land,, the fundamental law from which all public authoritiesderive their powers, all laws their validity and all subjects theirrights”.Democracy A state based upon democratic principles must makeprovision for: (a) a parliament whose members are elected by thepeople on the basis of adult franchise; (b) the leader of the majorityparty having the right to form the government; (c) the executivebeing responsible to the legislature; (d) the executive remaining inpower until it enjoys the confidence of the house; and (e)independence of the judiciary.
1973 Constitution – Introductory ProvisionsPreamble Inspired by the Objectives Resolution of 12 March 1949,which was made substantive part of Constitution via Article 2A.Articles 1 and 2 The Republic, its territories and its religion.Article 3 Elimination of exploitation (socialistic tinge).Article 4 Rule of law.Article 5 Loyalty and obedience.Article 6 Anti-martial law provision which has so far remainedinapplicable for all practical purposes – its scope now widened.
1973 Constitution – Fundamental Rights Article 8 An immensely important provision that gives teeth to the remainder of Chapter 1 of Part II. Absolute Rights Article 10A (Right to Fair Trial), Article 11 (Prohibition of Slavery), Article 12 (No Retrospective Punishment), Article 13 (Double Jeopardy and Self Incrimination), and Article 14 (Inviolability of Dignity of Man). Rights Subject to Qualifications Article 15 (Freedom of Movement), Article 16 (Freedom of Assembly), Article 17 (Freedom of Association), Article 18 (Freedom of Trade, Business or Profession), Article 19 (Freedom of Speech), and Article 24 (Protection of Property Rights). Rights Subject to Law Article 9 (Security of Person), Article 14 (Privacy of Home), Article 19A (Right of Information), Article 20 (Freedom of Religion), Article 24 (Protection of Property Rights), and Article 25A (Right to Education).
1973 Constitution – Principles of Policy Article 29 Each organ and authority of the State, or any person acting on behalf thereof, to act in accordance with these Principles. Subject to availability of resources where observance dependent thereon. Article 30 (2) Principles of Policy are not strictly enforceable. Article 40 Muslim brotherhood and international peace.