MIRPUR UNIVERSITY OF SCIENCE AND TECHNOLOGY (MUST), MIRPUR

DEPARMENT OF LAW

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 Human Rights LAW
LAW 2401

Lecture : Human Rights in Pakistan

Munazza Akram
(Lecturer)

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Date: April 23, 2020
Municipal Law and International Law

Monism
Dualism

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 Theories of International Law

• Monist Theory of Law

'The monist theory supposes that international law and national law are simply two
components of a single body of knowledge called 'law'. Law is seen as a single
entity of which the 'national' and 'international' versions are merely particular
manifestations. Thus, both sets of rules operate in the same sphere of influence
and are concerned with the same subject matter.'

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 Theories of International Law

• Dualist Theory of Law

Dualism denies that international law and national law operate in the same sphere,
although it does accept that they deal with the same subject matter. For dualists,
international law regulates the relations between states whereas national law
regulates the rights and obligations of individuals within states. In this regard,
international law plays a significant role in national legislation (the latter sometimes
being influenced by Pakistan's obligations under international conventions and
treaties).

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 Transposition Theories

• No need of express adoption by the

Incorporation
legislation

Transformation • Express adaptation is required

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 International Law in Pakistan

• As a dualist State, Pakistan incorporates international law into the domestic legal context in a two-
stage process:

i. The international legal instrument is first signed and ratified/acceded to; following which,

ii. Implementing legislation is promulgated by the relevant legislative assembly to give the
international legal obligations domestic effect.

iii. This raises some concerns as, while Pakistan may be party to any number of treaties or
conventions, it is only when the pertinent implementing legislation is passed that the international
legal commitments the State of Pakistan has taken upon itself become directly implementable in
the national legal context. Moreover, Pakistan would need to take into account any potential
conflict between its international legal commitments and its Constitution and domestic law.
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 International Law in Pakistan

• Following the 18th Constitutional Amendment Act 2010, Pakistan set in motion devolution of
federal ministries to the provinces. Initially, the Ministry of Human Rights had been merged with
the Ministry for Law. Recently, however, the Ministry of Human Rights has been separated from
the Ministry of Law.

• This development has culminated in a lack of coordination between the provinces and the center.
Without uniform implementation of these Conventions in the provinces, the State of Pakistan will
continue to face inconsistencies and obstacles in compliance reporting to the UN human rights
treaty bodies.

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 International Law in Pakistan

• In this regard, the implementation of international treaties can only be ensured through
measures adopted at the Provincial level through effective coordination with the Federal Ministry
for Human Rights.

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 8. Laws inconsistent with or in derogation of
fundamental rights to be void.
(1) Any law, or any custom or usage having the force of law, in so far as it is
inconsistent with the rights conferred by this Chapter, shall, to the extent of such
inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so
conferred and any law made in contravention of this clause shall, to the extent of
such contravention, be void.
(3) The provisions of this Article shall not apply to :-
(a) any law relating to members of the Armed Forces, or of the police or
of such other forces as are charged with the maintenance of public order,
for the purpose of ensuring the proper discharge of their duties or the
maintenance of discipline among them; or

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 8. Laws inconsistent with or in derogation of
fundamental rights to be void.

(b) any of the

(i) laws specified in the First Schedule as in force immediately before the
commencing day or as amended by any of the laws specified in that
Schedule;
(ii) other laws specified in Part I of the First Schedule;
and no such law nor any provision thereof shall be void on the ground
that such law or provision is inconsistent with, or repugnant to, any
provision of this Chapter.

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 8. Laws inconsistent with or in derogation of
fundamental rights to be void.

(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two
years from the commencing day, the appropriate Legislature shall bring the laws specified in
Part II of the First Schedule into conformity with the rights conferred by this Chapter:
Provided that the appropriate Legislature may by resolution extend the said period of two
years by a period not exceeding six months.
Explanation :- If in respect of any law Majlis-e-Shoora (Parliament) is the appropriate
Legislature, such resolution shall be a resolution of the National Assembly.
(5) The rights conferred by this Chapter shall not be suspended except as expressly provided
by the Constitution.

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 9. Security of person.

• No person shall be deprived of life or liberty save in accordance with

law.

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 10. Safeguards as to arrest and detention.

(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult
and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a
magistrate within a period of twenty-four hours of such arrest, excluding the time
necessary for the journey from the place of arrest to the court of the nearest magistrate,
and no such person shall be detained in custody beyond the said period without the
authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained
under any law providing for preventive detention.
.

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 10. Safeguards as to arrest and detention.
(4) No law providing for preventive detention shall be made except to deal
with persons acting in a manner prejudicial to the integrity, security or
defence of Pakistan or any part thereof, or external affairs of Pakistan, or
public order, or the maintenance of supplies or services, and no such law
shall authorise the detention of a person for a period exceeding three months
unless the appropriate Review Board has, after affording him an opportunity
of being heard in person, reviewed his case and reported, before the
expiration of the said period, that there is, in its opinion, sufficient cause for
such detention, and, if the detention is continued after the said period of three
months, unless the appropriate Review Board has reviewed his case and
reported, before the expiration of each period of three months, that there is,
in its opinion, sufficient cause for such detention.
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 10. Safeguards as to arrest and detention.
Explanation-I: In this Article, "the appropriate Review Board" means,
(i) in the case of a person detained under a Federal law, a Board
appointed by the Chief Justice of Pakistan and consisting of a
Chairman and two other persons, each of whom is or has been a
Judge of the Supreme Court or a High Court; and
(ii) in the case of a Person detained under a Provincial law, a Board
appointed by the Chief Justice of the High Court concerned and
consisting of a Chairman and two other persons, each of whom is or
has been a Judge of a High Court.
Explanation-II: The opinion of a Review Board shall be expressed in
terms of the views of the majority of its members.
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 10. Safeguards as to arrest and detention.
(7) Within a period of twenty-four months commencing on the day of his first detention
in pursuance of an order made under a law providing for preventive detention, no person
shall be detained in pursuance of any such order for more than a total period of eight
months in the case of a person detained for acting in a manner prejudicial to public order
and twelve months in any other case:
Provided that this clause shall not apply to any person who is employed by, or works for,
or acts on instructions received from, the enemy or who is acting or attempting to act in a
manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or
who commits or attempts to commit any act which amounts to an anti-national activity as
defined in a Federal law or is a member of any association which has for its objects, or
which indulges in, any such anti-national activity.

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 10. Safeguards as to arrest and detention.

(8) The appropriate Review Board shall determine the place of

detention of the person detained and fix a reasonable subsistence
allowance for his family.
(9) Nothing in this Article shall apply to any person who for the
time being is an enemy alien.

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 11. Slavery, forced labour, etc. prohibited.
(1) Slavery is non-existent and forbidden and no law shall permit or
facilitate its introduction into Pakistan in any form.
(2) All forms of forced labour and traffic in human beings are prohibited.
(3) No child below the age of fourteen years shall be engaged in any
factory or mine or any other hazardous employment.
(4) Nothing in this Article shall be deemed to affect compulsory service:-
(a) by any person undergoing punishment for an offence against any
law; or
(b) required by any law for public purpose provided that no
compulsory service shall be of a cruel nature or incompatible with
human dignity.
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12. Protection against retrospective punishment.

(1) No law shall authorize the punishment of a person:-

(a) for an act or omission that was not punishable by law at the time
of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different
from, the penalty prescribed by law for that offence at the time the
offence was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts
of abrogation or subversion of a Constitution in force in Pakistan at any time
since the twenty-third day of March, one thousand nine hundred and fifty-
six, an offence

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 13. Protection against double punishment and self
incrimination.
• No person:-
• (a) shall be prosecuted or punished for the same offence more than
once; or
• (b) shall, when accused of an offence, be compelled to be a witness
against himself.

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 14. Inviolability of dignity of man, etc.
• (1) The dignity of man and, subject to law, the privacy of home, shall
be inviolable.
• (2) No person shall be subjected to torture for the purpose of
extracting evidence.

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 15. Freedom of movement, etc.

• Every citizen shall have the right to remain in, and, subject to any
reasonable restriction imposed by law in the public interest, enter and
move freely throughout Pakistan and to reside and settle in any part
thereof.

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 16. Freedom of assembly.

• Every citizen shall have the right to assemble peacefully and without
arms, subject to any reasonable restrictions imposed by law in the
interest of public order.

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 17. Freedom of association.
• (1) Every citizen shall have the right to form associations or unions,
subject to any reasonable restrictions imposed by law in the interest
of sovereignty or integrity of Pakistan, public order or morality.
• (2) Every citizen, not being in the service of Pakistan, shall have the
right to form or be a member of a political party, subject to any
reasonable restrictions imposed by law in the interest of the
sovereignty or integrity of Pakistan or public order and such law shall
provide that where the Federal Government declare that any political
party has been formed or is operating in a manner prejudicial to the
sovereignty or integrity of Pakistan or public order, the Federal
Government shall, within fifteen days of such declaration, refer the
matter to the Supreme Court whose decision on such reference shall
be final.
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 17. Freedom of association.
Provided that no political party shall promote sectarian, ethnic, regional
hatred or animosity, or be titled or constituted as a militant group or
section.
(3) Every political party shall account for the source of its funds in
accordance with law.

(4) Every political party shall, subject to law, hold intra-party elections
to elect its office-bearers and party leaders.

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 18. Freedom of trade, business or profession.

Subject to such qualifications, if any, as may be prescribed by law, every citizen

shall have the right to enter upon any lawful profession or occupation, and to
conduct any lawful trade or business:
Provided that nothing in this Article shall prevent:-
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free
competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government,
or by a corporation controlled by any such Government, of any trade,
business, industry or service, to the exclusion, complete or partial, of other
persons.

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 19. Freedom of speech, etc.

• Every citizen shall have the right to freedom of speech and

expression, and there shall be freedom of the press, subject to any
reasonable restrictions imposed by law in the interest of the glory of
Islam or the integrity, security or defence of Pakistan or any part
thereof, friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, commission of or
incitement to an offence.

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 20. Freedom to profess religion and to manage
religious institutions.

Subject to law, public order and morality:-

(a) every citizen shall have the right to profess, practise and
propagate his religion; and
(b) every religious denomination and every sect thereof shall
have the right to establish, maintain and manage its religious
institutions.

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 21. Safeguard against taxation for purposes of any
particular religion.

• No person shall be compelled to pay any special tax the proceeds of

which are to be spent on the propagation or maintenance of any
religion other than his own.

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 22. Safeguards as to educational institutions in respect of
religion, etc.

(1) No person attending any educational institution shall be required to receive religious instruction, or
take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or
worship relates to a religion other than his own.
(2) In respect of any religious institution, there shall be no discrimination against any community in the
granting of exemption or concession in relation to taxation.
(3) Subject to law:
(a) no religious community or denomination shall be prevented from providing religious
instruction for pupils of that community or denomination in any educational institution
maintained wholly by that community or denomination; and
(b) no citizen shall be denied admission to any educational institution receiving aid from public
revenues on the ground only of race, religion, caste or place of birth.
(4) Nothing in this Article shall prevent any public authority from making provision for the
advancement of any socially or educationally backward class of citizens.

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 23. Provision as to property.

• Every citizen shall have the right to acquire, hold and dispose of
property in any part of Pakistan, subject to the Constitution and any
reasonable restrictions imposed by law in the public interest

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 24. Protection of property rights.

(1) No person shall be compulsorily deprived of his property save in accordance with law.
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save
by the authority of law which provides for compensation therefore and either fixes the amount of
compensation or specifies the principles on and the manner in which compensation is to be determined
and given.
(3) Nothing in this Article shall affect the validity of :-
(a) any law permitting the compulsory acquisition or taking possession of any property for
preventing danger to life, property or public health; or
(b) any law permitting the taking over of any property which has been acquired by, or come into
the possession of, any person by any unfair means, or in any manner, contrary to law; or
(c) any law relating to the acquisition, administration or disposal of any property which is or is
deemed to be enemy property or evacuee property under any law (not being property which has
ceased to be evacuee property under any law); or

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 24. Protection of property rights.

(d) any law providing for the taking over of the management of any property by the State for a
limited period, either in the public interest or in order to secure the proper management of the
property, or for the benefit of its owner; or
(e) any law providing for the acquisition of any class of property for the purpose of
(i) providing education and medical aid to all or any specified class of citizens or
(ii) providing housing and public facilities and services such as roads, water supply, sewerage,
gas and electric power to all or any specified class of citizens; or
(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old
age, are unable to maintain themselves ; or
(f) any existing law or any law made in pursuance of Article 253.
(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this
Article, or determined in pursuance thereof, shall not be called in question in any court.

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 25. Equality of citizens.

• (1) All citizens are equal before law and are entitled to equal
protection of law.
• (2) There shall be no discrimination on the basis of sex alone.
• (3) Nothing in this Article shall prevent the State from making any
special provision for the protection of women and children.

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 26. Non-discrimination in respect of access to public
places.
• (1) In respect of access to places of public entertainment or resort,
not intended for religious purposes only, there shall be no
discrimination against any citizen on the ground only of race, religion,
caste, sex, residence or place of birth.
• (2) Nothing in clause (1) shall prevent the State from making any
special provision for women and children.

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27. Safeguard against discrimination in services.

(1) No citizen otherwise qualified for appointment in the service of

Pakistan shall be discriminated against in respect of any such
appointment on the ground only of race, religion, caste, sex, residence
or place of birth.
• Provided that, for a period not exceeding [forty] years from the
commencing day, posts may be reserved for persons belonging to any
class or area to secure their adequate representation in the service of
Pakistan:
• Provided further that, in the interest of the said service, specified
posts or services may be reserved for members of either sex if such
posts or services entail the performance of duties and functions
which cannot be adequately performed by members of the other sex.
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27. Safeguard against discrimination in services.

(2) Nothing in clause (1) shall prevent any Provincial Government, or

any local or other authority in a Province, from prescribing, in relation
to any post or class of service under that Government or authority,
conditions as to residence in the Province. for a period not exceeding
three years, prior to appointment under that Government or authority.

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28. Preservation of language, script and culture.

• Subject to Article 251 any section of citizens having a distinct

language, script or culture shall have the right to preserve and
promote the same and subject to law, establish institutions for that
purpose.

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 PRINCIPLES OF POLICY

• 29. Principles of Policy

• 30. Responsibility with respect to Principles of Policy.

• 31.Islamic way of life.

• 32. Promotion of local Government institutions.

• 33. Parochial and other similar prejudices to be discouraged.

• 34. Full participation of women in national life.

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 PRINCIPLES OF POLICY

• 35. Protection of family, etc.

• 36. Protection of minorities.

• 37. Promotion of social justice and eradication of social evils.

• 38. Promotion of social and economic well-being of the people.

• 39. Participation of people in Armed Forces.

• 40. Strengthening bonds with Muslim world and promoting

international peace.
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 184. Original Jurisdiction of Supreme Court.

(1) The Supreme Court shall, to the exclusion of every other court, have
original jurisdiction in any dispute between any two or more
Governments.
Explanation.-In this clause, "Governments" means the Federal
Government and the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause (1), the
Supreme Court shall pronounce declaratory judgments only.
(3) Without prejudice to the provisions of Article 199, the Supreme
Court shall, if it considers that a question of public importance with
reference to the enforcement of any of the Fundamental Rights
conferred by Chapter I of Part II is involved have the power to make
an order of the nature mentioned in the said Article.
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 199. Jurisdiction of High Court.

Habeas
Mandamus Prohibition
Corpus

Quo
Certiorari
Worranto

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QUESTIONS

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THANKS

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