INTRODUCTION
Fundamental rights are part and parcel of constitutional law. Fundamental rights safeguard the Liberty and rights of the people and equality etc. The 1973 constitution of Pakistan has given the right to be protected by law to every citizen and has imposed upon them the loyalty to state and obedience to the law.
There is only one fundamental right (all the others are its consequences or corollaries) a man’s night to his own life. If we are to improve conditions then the law must be upheld to bring peace and security to the land and to build lives of dignity and respect.
It is the duty of every individual to stand up and prevent any violations or breaking of the law. If we are to build a better nation then familiarity with is also to some degree necessary the law.
LAWS INCONSISTENT WITH FUNDAMENTAL RIGHTS
ARTICLE 8(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.
ARTICLE 8(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 be void to the extent of such contravention.
ARTICLE 8(3):
The provisions of this Article shall not apply to
(a) any law relating to members of the Armed Forces, 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 any of the
(b) any of the
-
- laws that are 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.
- other laws specified in Part 1 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.
ARTICLE 8(4):
Within a period of two years from the commencing day, the appropriate Legislature shad 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 ha years by a period not exceeding six months.
ARTICLE 8(5):
The nights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.
EXPLANATION OF ARTICLE 8 OF THE 1973 CONSTITUTION
1. SCOPE:
Provision of Article 801) of the Constitution of Pakistan (1973) is founded on the assumption that custom or usage has the force of law as the law has itself but they will not be enforced to the extent of inconsistency within the Fundamental Rights.
2. FUNDAMENTAL RIGHT:
A Right is an interest recognized and protected by law If can be created and enforced either by a constitutional provision or by an ordinary enactment. When a right is safeguarded by a Constitutional guarantee it is called “Fundamental Right because by doing so it has been placed beyond the power, of any organ of the State, whether Executive or Legislative to act in violation of it.
Such a night cannot be taken away. suspended or abridged save as expressly provided by the Constitution An ordinary right on the other hand can be enlarged abridged or destroyed by an ordinary enactment.
Thus fundamental rights are those natural nights that are personal to the individual as a citizen of a free and civilized community and belong alike to every man woman and child. The essential characteristic of fundamental nights is that they impose limitations express or implied, on public authorities, interfering with their exercise.
3. OBJECTIVE:
The purpose of Article 8 is to invalidate all existing saws in so far as they are inconsistent with Fundamental Rights conferred by the Constitution. The Article provides that any law or any custom or usage having the force of law shall be void if they are in contravention of the rights conferred by this Chapter.
It has further been provided in the Constitution that within a period of two years, the appropriate Legislature shall bring the laws specified in the First Schedule into conformity with the night conferred under this Chapter.
The principle embodied in this Article is that any invasion upon the nights of citizens by anybody no matter whether by a private individual or by a public official or body must be justified with reference to some law of the country.
4. ENFORCEABILITY:
The Constitution itself has clearly imposed upon the High Courts the duty of enforcing the fundamental rights and so far as fundamental rights are concerned the Constitution itself has declared that all laws inconsistent with those nights shall be void to the extent of the inconsistency.
5. FUNDAMENTAL RIGHTS CANNOT BE WAIVED:
Fundamental, Rights cannot be waived No night which is based on public policy can be waived Even the right which the Government servant possesses under the Constitution of being entitled to a show-cause notice before dismissal cannot be waived.
Citizens of Pakistan cannot contract themselves out of the various fundamental rights which the Constitution grants them. The fundamental rights are not to be read as if they included the words subject to a contract to the contrary. One way of putting the matter is this.
Every law which is inconsistent with a fundamental right is void. The Contract Act in so far as it permits an agreement to waive a fundamental right is void it is not necessary to labor the point as the preposition that rights granted on account of public policy cannot be waived is well established.
6. FUNDAMENTAL RIGHT IS NOT ABSOLUTE:
Absolute and unrestricted individual rights do not exist in any modern State and there is no such thing as absolute and uncontrolled liberty. The collective interests of the society. peace and security of the State and the maintenance of public order are of vital importance in any organized society.
Fundamental Rights have no real meaning if the State itself is in danger, and disorganized. If the State is in danger, the liberties of the subjects are themselves in danger. It is for these reasons of State that an equilibrium has to be maintained between the two contending interests at stake. They are as follows;
- Individual liberties and the positive rights of the citizen are declared by the Constitution to be Fundamental.
- The need to impose social control and reasonable limitations on the enjoyment of those rights in the interest of the collective good of the society.
7. DUE PROCESS OF LAW:
The concept of the due process clause is an outstanding feature of the American Constitution and no similar provision exists in our Constitution. But another provision was made like Article 6 of the 1962 Constitution, Article 7 of the Interim Constitution, and Article 8 of the 1973 Constitution, which placed a limitation on the Legislature not to enact a law in contravention with or in derogation of fundamental rights and if such law is made then to the extent of such contravention it is void. This constitutional provision placed a duty on the Court to examine the constitutionality of the law challenged.
Due process of law generally implies and includes actor, reus, judex, regular allegations opportunity to answer, and a trial according to some settled course of judicial proceedings.
8. IN ACCORDANCE WITH THE LAW:
Article 2-A of the Constitution by which the principles and provision set out in the Objectives Resolution were made substantive part of the Constitution, is not a supra- Constitutional provision nor it is self-executing.
Article 4 speaks about the rights of individuals, which are to be dealt with in accordance with the law. No action adversely affecting the life, liberty, body, reputation, or property of any person is to be taken except in accordance with the law.
9. RIGHTS AND INTERESTS OF MINORITIES:
Article 36 of the constitution of Pakistan 1973, makes it obligatory for State to safeguard the legitimate rights and interests of minorities including their due representation in the Federal and Provincial Service Personal, fundamental and other rights of individuals had to yield to the national interest, collective rights and welfare of society.
CONCLUSION
It is concluded the concept of rights and fundamental rights are part and parcel of constitutional law. There can be no democratic constitution without it. In the 1973 constitution, Fundamental rights have been given.
The Fundamental rights safeguard the Liberty and rights of the people and equality etc. The essential characteristic of fundamental rights is that they impose limitations, express or implied, on public authorities, interfering with their exercise.
FAQs
“Law inconsistent with or in derogation of Fundamental Rights to be void”. Discuss the statement in light of Article 8 of the 1973 constitution.
(2018-S)
Discuss the constitutional provision in relation to laws inconsistent with or in derogation of Fundamental Rights.
(2016-A)
Discuss Article 8 of the Constitution.
