Article 8, Constitution of Pakistan

Article 8 of the Constitution of Pakistan establishes the supremacy of fundamental rights, rendering any statutory instrument void if it is at odds with these constitutional guarantees. However, this supremacy is not absolute. The constitution highlights specific exceptions to this rule in order to balance state interests with individual freedoms in particular laws regarding the Police or the Armed Forces. These exempted laws, shielded from being challenged on the ruse of fundamental rights, are explicitly listed in the First Schedule of the Constitution and some of the laws listed are already repealed yet have not been removed from the constitution via an amendment.

Brief Background of Article 8

Article 8 of the Constitution of Pakistan was added into the text, to ensure the protection of fundamental rights of the citizens, at the time of when the Constitution first came to being. The content of paragraph b of Clause 3 of the constitution was substituted, via amendment, by the Constitution (Fourth Amendment) Act, 1975.

Important Provisions of the Article

Clause 1 and 2 lays out that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred upon the individual, shall, to the extent of such inconsistency, be considered void and that the state will not make any law which takes away or abridges the rights and any law that is in contravention of the clause, to the extent of such contravention, would be considered as void, respectively.

Clause 3 lays out that the provisions of the Article would not apply to any law relating to the 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. The provisions shall also not apply to the any of the 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 and any other laws mentioned in part 1 of the Schedule. It also states that 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 provisions related to the fundamental rights.

Clause 5 lays out that the rights conferred by the chapter, of fundamental rights, shall not be suspended except as what is expressly provided by the Constitution.

Impact of the Article

An article that automatically considers all laws that are inconsistent with the fundamental rights conferred upon the individual as void, creates a robust shield that protects the civil liberties. But providing a blanket exception for the Armed Forces and the Police creates a structural hazard. This exception allows overzealous law makers to expand the jurisdiction of military or police laws to encompass the civilians by effectively bypassing these constitutional protections through anti-terrorism laws or by some other laws.

Article 19 of the Constitution grants the fundamental right of Freedom of Speech yet the Pakistan Penal Code contain within it a provision, Section 124A, regarding “Sedition” which refers to the imprisonment of anyone that by either words or any kind of visible representation brings forward hatred or contempt toward the Federal Government. This is a broadly worded provision which provides the Government with a wide leeway with it having the potential to restrict spoken or written words by the press and the people.

This was the primary concern in the case of Haroon Farooq v. Federation of Pakistan & others (W.P No.59599 of 2022), where it was alleged that Section 124A of the PPC was in violation of Articles 14, 19 and 19A of the constitution and as per the rules established in Article 8, Section 124A should be considered as void. It was held that there can be no abridgement of speech unless it falls within the strict confines of the exceptions to Article 19 of the Constitution.

The Parliament, being the sovereign law maker, has not only the power to protect and uphold the rule of law but also to undermine it. Favouring the executive, via legislation, over the rights of the individual, as laid out in the Constitution, could potentially undermine the rule of law but considering it is the role of the Parliament to uphold it, it is unlikely that it would create laws that would limit the rights of the citizens and increase executive power.

Impact of Having Repealed Law Mentioned in the Constitution

The inclusion of repealed or “dead” laws within the text of the Constitution presents significant administrative and legal challenges. From a constitutional standpoint, preserving references to explicit statutory exceptions creates ambiguity when it comes to the scope of fundamental rights protection. This opens the possibility for the state to enact laws under the same scope while arguing that the text of the constitution preserves a sort of vessel waiting to be filled.

Such ambiguity can lead to judicial confusion and a prolonged litigation considering how the courts rely heavily on textual interpretation and individuals that allege potential fundamental rights violations face complex legal battles as the courts would have to determine whether the constitutional exception remains actionable or is just a piece of history yet not removed. This leads to delayed judgements as well as is likely to produce inconsistent precedents.

Moreover, such a situation also appears to introduce operational challenges for the executive, considering how when the constitution appears to have exempted such laws, that are dead, from fundamental right constraints, the executive authorities might interpret it as having broad authority irrespective of the status of the legislation as being repealed. As such preserving the repealed laws within the constitution risks the preference for executive action or role over the constitutional protection of fundamental rights.

In a time where legislators rush to rewrite laws, we must give credit to our Parliament’s inaction regarding defunct laws mentioned in our governing legal document. By refusing to waste valuable Parliamentary hours spent on administrative housekeeping and removing dead laws from our constitution, the Parliament spends its time introducing and passing new laws for effective governance.

A Brief List of Laws Repealed in The First Schedule

• The Flour Milling Control and Development Act, 1976 (LVII of 1976)
• The Rice Milling Control and Development Act, 1976 (LVIII of 1976)
• The Cotton Ginning Control and Development Act, 1976 (LIX of 1976)
• The Land Reforms (Amendment) Ordinance, 1975 (XXI of 1975), and the Federal Act enacted to replace the said Ordinance
• The Companies (Managing Agency and Election of Directors) Order, 1972 (P. O. No. 2 of 1972)
• The Scrutiny of Claims (Evacuee Property) Regulation, 1961
• The Removal from Service (Special Provision) Regulation, 1969
• The Price of Evacuee Property and Public Dues (Recovery) Regulation, 1971
• The Control of Shipping Ordinance, 1959 (XIII of 1959)
• The Associated Press of Pakistan (Taking Over) Ordinance, 1961 (XX of 1961)
• The Trade Organisations Ordinance, 1961 (XLV of 1961)
• The Censorship of Films Act, 1963 (XVIII of 1963)