The courts and fundamental rights
by, Naseer Ahmed
I think the parliament cannot take away the fundamental rights because they are viewed as integral part of being human in democratic thinking. If they are taken away, it becomes a denial of humanity.This denial of humanity is actually anti-democracy because it weakens the consent basis of legal contract.
Sadly, our parliament has already taken away those rights in the name of security and religion. Both have nothing to do with removal of fundamental rights but they become a big obstruction to fundamental rights if you use them as totalitarian tools.
These were the worst ever violations of the constitution.The courts had the right and duty to cancel all these amendments. Sadly, they did not use their rights and duties about removing those laws from the law book.
Otherwise, the parliament is sovereign and can make laws. It would be wrong to reject their laws. Still, if the court thinks, the election legislation deprives people of their fundamental rights, it could call those laws unconstitutional. But to justify that, the court would have to cancel all kind of legislation which takes away the fundamental rights.
It would be good to lose a few clauses of the elections and getting a proper democracy in return. Would the courts do that? I would give my life to the court if it rehabilitates my humanity in a proper, constitutional, moral, ethical and democratic sense.
In the absence of the fundamental rights, we are oppressors, oppressed or both.This is not the concept of humanity democracy envisions. The fundamental rights provide legal relief against oppression. Think this way, when you are beaten like a dog, it is because somebody denies your humanity. Democracy is basically prevention of such incidents and when they happen it provides you redress.
If democracy does not prevent such incidents and does not provide redress to the victim, it is not democracy. If it takes away the fundamental rights, it is cancelling itself.
See more: Rights Theory – II : Individual rights, human rights, women’s rights, minority rights, group rights
Laws are not meant to hurt and harm the individuals the courts have problems with, they are basis of a peaceful coexistence. No religion as law intends that peaceful co-existence because somebody is viewed legally a lesser human being in religion as law.
No human being is going to accept a legally inferior being in a peaceful way. In democracy, there is no civilised beings and half devil or cockroaches. Democracy, was used to be quite discriminatory, but that stage has passed. Yes, even American fathers did not ensure legal equality and fundamental rights, but it is 2017 and democratic thought and legislation has progressed a lot since American fathers. We must take note of that.
Our founding fathers were more progressive lot than us.They did not envision depriving us of our fundamental rights in order to impose a legal caste system upon us. Religion as soul saviour also does not impose such a crap system upon people because soul could only be saved when you have it.
Some people may not agree that soul is a legal issue but almost everybody agrees that humanity is and since the progress in democratic thought and practices, our fundamental rights are our humanity. If anybody takes it away from us, it is duty of our democratic institutions to stop that process and provide us redress. If government does not do it, parliament does it, if parliament does not do it, the courts do that but when Bhutto took the fundamental rights of Ahmdies, denied their humanity and deprived them of equality before law, the parliament supported him and the courts did not talk about the fundamental rights. When Zia Ul Haq did this to everybody, the courts did not speak about the right to review the legislation.
Brave lawyers and PPP workers gave their lives for a mother like state promised by that Aitzaz Ahsan on behalf of the court. The court got its independence, but it did not rehabilitate our fundamental rights and humanity.
Why don’t we try to move away from using democracy and constitution only for meaningless conflicts? If we want democracy, we will have to get rid of Zia legislation or any legislation that basically denies fundamental rights. When you get legislation right, you have better chances of getting its implementation right. Otherwise,we would be moaning about non-functioning democracy forever.
If we are going to repeat this kind of following dialogue over and over, we won’t make any progress.
Well you have been in power for forty long years?
Verilly, Lord is Kind.
Certainly? did you protect the fundamental rights of the people you ruled over?
Ah, hmm, ahmmm, I tried my best, our country is a poor country, them corrupt people did not let me do anything. When I am about to launch a comprehensive programme, they kick me out. Well, you know a man can’t do much. Now I hope I would get a heavy mandate, I would sort it out.
I guess, you had it twice.
Oh yeah , Ah,hmmm, ahmmm, that time I did not know much, now I am gone a bit foxy, you know our country is a poor country.
Yes, indeed, it is.
Ah, hmmm, ahmm.
