Constitutional Law of Pakistan: Evolution, Rights & Judicial Responsibility

“And when you judge between people, judge with justice.” (Surah An-Nisa 4:58)

Honourable Judges, respected scholars, colleagues, and participants,

A Constitution is not merely a legal document. It is a moral covenant between the State and its people. It tells power where to stop, teaches authority how to behave, and assures citizens that dignity is not a concession but a right.

Today, I speak about constitutional law not merely as a subject, but as a living discipline — shaped by history, restrained by law, and protected by conscience.

PART I — MEANING, NATURE & SOURCES OF CONSTITUTIONAL LAW

Meaning of Constitutional Law

Constitutional law is the body of principles and rules that governs:

• the structure of the State,
• the distribution of powers,
• the relationship between organs of government, and
• the rights and liberties of citizens.

It defines who governs, how they govern, and within what limits.

Nature of Constitutional Law

1. Supreme Law: Article 5(2) declares that any law inconsistent with the Constitution is void. Article 8 reinforces this supremacy.
2. Organic and Dynamic: Constitutional law evolves through amendments, judicial interpretation, and constitutional conventions.
3. Political and Legal Character: It regulates political power but is enforced through courts.
4. Rights-Oriented: Modern constitutionalism emphasizes fundamental rights, rule of law, and judicial review.
5. Value-Based: It is grounded in justice, equality, dignity, democracy, federalism, and Islamic principles.

SOURCES OF CONSTITUTIONAL LAW

1. Written Constitution: The Constitution of the Islamic Republic of Pakistan, 1973.
2. Constitutional Amendments (Article 239): 8th, 18th, 21st, 25th, 26th and 27th Amendments.
3. Judicial Precedents: Decisions of the Supreme Court and High Courts under Articles 189 and 201.
4. Constitutional Conventions: Unwritten practices followed by constitutional actors.
5. Statutes Affecting Constitutional Structure: Representation of the People Act, election laws, judiciary-related statutes.
6. Islamic Injunctions: Articles 2, 2A, and 227–231 incorporating the Objectives Resolution.

PART II — EVOLUTION OF THE CONSTITUTION OF PAKISTAN

Pre-Independence Background: Government of India Acts, 1919 and 1935 introduced federal structure, parliamentary traditions, and judicial hierarchy.

1956 Constitution:

• First Constitution of Pakistan
• Parliamentary system
• Islamic Republic
• Abrogated in 1958

1962 Constitution:

• Presidential system
• Strong executive
• Basic Democracies
• Abrogated in 1969

1973 Constitution: Adopted unanimously on 10 April 1973. Features include:

• Parliamentary democracy
• Federal system
• Fundamental rights
• Independent judiciary
• Bicameral legislature
• Islamic provisions

Post-1973 Amendments:

• 8th Amendment – Presidential dissolution powers
• 13th Amendment – Restoration of parliamentary supremacy
• 17th Amendment – Revival of presidential authority
• 18th Amendment – Federal autonomy and strengthened rights
• 21st Amendment – Military courts (terrorism context)
• 25th Amendment – Merger of FATA with KP
• 26th & 27th Amendments – Recent structural and electoral reforms under debate

PART III — FUNDAMENTAL RIGHTS

Meaning: Fundamental Rights are guaranteed constitutional freedoms enforceable through courts. Article 8 renders void any law inconsistent with Fundamental Rights.

Categories of Fundamental Rights (Articles 8–28)

A. Rights of Individuals:

• Article 9 – Security of person
• Article 10 – Safeguards against arrest
• Article 10A – Fair trial
• Article 14 – Dignity of man

B. Freedoms:

• Expression (Art. 19)
• Press & information (19A)
• Assembly (16)
• Association (17)
• Movement (15)
• Profession/business (18)
• Religion (20–22)

C. Equality Rights:

• Equality before law (Art. 25)
• Protection of women and children

D. Social & Cultural Rights:

• Education (Art. 25-A)
• Protection of language and culture

Nature of Fundamental Rights:

• Justiciable
• Enforceable under Articles 184(3) and 199
• Subject to reasonable restrictions
• Not absolute
• Must conform to morality, public order, and law

PART IV — PROPORTIONALITY & REASONABLENESS

Meaning: A restriction must be rational, fair, non-arbitrary, and proportionate.

Origin: Developed from English administrative law and European human rights jurisprudence.

Four-Step Proportionality Test:

1. Legitimate aim
2. Rational connection
3. Necessity (least restrictive means)
4. Balance between harm and benefit

Judicial Recognition:

• Benazir Bhutto v Federation (PLD 1988 SC 416)
• Watan Party v Federation (PLD 2011 SC 997)
• District Bar Association (PLD 2015 SC 401)
• Imran Ahmad Khan v Mian Nawaz Sharif (PLD 2017 SC 265)

PART V — LANDMARK JUDGMENTS ON FUNDAMENTAL RIGHTS

Foundational Cases:

• Maulvi Tamizuddin Khan (PLD 1955 FC 240)
• State v Dosso (PLD 1958 SC 533)

Corrective Turn:

• Asma Jilani v Government (PLD 1972 SC 139)
• Begum Nusrat Bhutto (PLD 1977 SC 657)

Expansion of Rights:

• Benazir Bhutto v Federation (PLD 1988 SC 416)
• Shehla Zia v WAPDA (PLD 1994 SC 693)
• Darshan Masih (PLD 1990 SC 513)

Due Process & Institutional Integrity:

• Mehram Ali (PLD 1998 SC 1445)
• Mustafa Impex (PLD 2016 SC 808)
• District Bar Association Rawalpindi (PLD 2015 SC 401)

Article 184(3) Jurisprudence:

• Human Rights Case No. 4668/2006
• Workers Party Case (PLD 2012 SC 681)
• Salman Akram Raja v Federation (PLD 2013 SC 501)
• PTI v Federation (PLD 2022 SC 1)

PART VI — POST–26th & 27th AMENDMENTS: CONSTITUTIONAL REFLECTION

Every constitutional amendment must satisfy:

1. Democratic legitimacy
2. Institutional balance
3. Protection of fundamental rights

The 26th and 27th Amendments were introduced to address structural and electoral concerns, but constitutionalism requires deeper scrutiny.

Structural amendments reshape institutions long after politics fades.

Judicial Principle: District Bar Association v Federation (PLD 2015 SC 401) confirms that even constitutional amendments may be reviewed if they damage salient features.

Proportionality applied:

Democratic morality demands restraint.

PART VII — ROLE OF THE JUDICIARY

Courts must strike a balance:

They must not govern.

They must not surrender.

Judicial review is not activism; it is constitutional guardianship.

Thank you.