Enforcement of Fundamental Rights under the Constitution of Pakistan, 1973: Challenges and Judicial Trends

Abstract

The Islamic Republic of Pakistan 1973 Constitution contains a comprehensive list of core rights and also offers ways through which they may be implemented. But the translation of these constitutional assurances into the real world has been difficult by socio-economic factors, political interference and the institutional constraints. The paper reformulates and evaluates the application of the basic rights as espoused in the 1973 Constitution of Pakistan with an aim of identifying the challenges that have arisen with respect to the basic rights and also an evaluation of the judicial trends that have been developed regarding the challenges. The paper will employ a doctrinal approach and look at U.S. constitutional clauses, case law, and commentary literature to determine how the higher courts of Pakistan have upheld fundamental rights throughout the years. The results reveal that the higher court has been fundamental in enforcing rights under the outstanding use of innovative measures such as writ petitions, public interest litigation (PIL), and suo motu measures. There have been numerous instances where the courts have facilitated the availability of justice and formulated positive jurisprudence on rights to life, dignity, equality, and fair trial. However, the enforcement has been uneven; the periods of judicial activism have been followed by the deference particularly under martial law or other emergency systems and adherence to court decisions by the executive has been lacking. The discussion points out that judicial activism has assisted in sealing the enforcement gap, but also brings about debates on separation of power. The paper ends with a conclusion and recommendations on how to improve the implementation of the fundamental rights in Pakistan by undertaking legal changes, enhanced institutional approaches, and appreciation of the judicial rulings.