The Constitution of Pakistan, for reasons discussed below, defines the state completely different than how is it defined by international law. Therefore, before the definition of State under article 7 of the Constitution of Pakistan is discussed it is necessary to throw a glance on the definition of State under international law.
Definition of State under International Law
Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933 lays down the most widely accepted criteria of statehood in international law. It states that state as an international person should possess the following qualifications:
(a) a permanent population
(b) a defined territory
(d) capacity to enter into relations with other states (sovereignty)
According to the Arbitration Commission of the European Conference on Yugoslavia, Opinion No. 01, 1991:
“the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty.”
Definition of State under art 7 of the Constitution of Pakistan
In this part, unless the context otherwise requires, the State means:
- Federal Government,
- A Provincial Government,
- A Provincial Assembly, and
- Local or other authorities in Pakistan as are by law empowered to impose any tax or cess.
Why a different definition of State?
The definition of term ‘State’ at the beginning of chapter 1, part two that contains Fundamental Rights is meant to indicate the authorities and instrumentalities functioning within Pakistan which shall be deemed to be State and which, therefore, shall act in conformity with the provisions of part two of the Constitution.
From the definition of the state it follows that it is not only the legislative action, but also the executive and administrative actions taken at the instance of any agency mentioned in art. 7, that can be challenged on the grounds that is violative of the fundamental rights guaranteed by part two.
The wording ‘in this part unless the context otherwise require’ makes it clear that the definition of state is specifically meant to be applicable to part II of the Constitution and it does not apply to other parts of the constitution.
No mention of judicature
Judicature is state organ but it has been excluded from the definition of state for the obvious reason that its function is to decide whether a fundamental right has been violated or not? SC being on the top judicature, whose decision are binding on all other courts in Pakistan (art189), the question that SC has violated fundamental right will be out of question. However, the court may review its previous decisions, under art 188, to see, inter se, that whether fundamental right has been violated or not?
The judicature is the guardian of Constitution and fundamental rights contained in it. It is the final authority to determine what the law is on a particular subject. It is, therefore, difficult to imagine of a case in which determination of judiciary can itself be subject to any supervision by any agency than by judiciary itself. If the final court i.e. Supreme Court declares what the law is on a particular point, the matter cannot be re-contested on any forum on the ground that the decision or determination of the Supreme Court is contrary to constitution or violates fundamental rights. However, the matter can be taken up by the review petition before the Supreme Court and if the Supreme Court refuse to give any effect to the submission that its decision is unconstitutional or violates the fundamental rights, it would not be possible to agitate the matter on any other forum. This is the reason that ‘judicature’ is not mentioned in article 7 of the Constitution.
Does the definition of State Include autonomous bodies?
The West Pakistan Road Transport Board and WAPDA are neither federal nor provincial governments, though they discharge functions which are ordinarily the functions of the government. (PLD 1974 39) They can, therefore, fall within the definition of State. Though these bodies are autonomous, they are practically controlled by and are department of government. As the definition of “person” in the interpretation clause (art 260) includes a body corporate, these autonomous bodies are persons” (PLD 1973 Lah 82)
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