Article 8 of the Constitution of Pakistan, 1973

The underlying principle laid down in article 8 is that no law will be accepted as a good law which is violative of fundamental rights of citizens of Pakistan. And if ever such law is made the Courts are fully competent to declare such law void. Provision of article 8 is a great guarantee for the protection of fundamental rights. Therefore, if the instructions of statutory instruments qualified as law if challenged then they are liable to be struck down under article 8, if found discriminatory, and who takes action under such laws, is immaterial. (PLD 1990 SC 95)

Two Different Expressions: Inconsistency and Contravention

Clause (1) and (2) of Article 8 uses different expressions;

Clause (1). Any law………..to the extent of such inconsistency, be void

Clause (2). State shall not make any law……………in contravention of this clause

The expression in clause (1) includes all laws, existing and future laws while the expression in clause (2) is meant to be applicable to future law i.e. the State shall not make the laws in contravention of fundamental rights in the future.

Definition of Law

The definition mentions and includes the following:

  • Statutory Law: It may be either made directly by the legislature or by other subordinate authority under delegated law-making powers which may appear under different names, rules, orders, regulations, notification, etc  (AIR 1960 SC 1073)
  • Likewise ordinances issued by president and governors are also included in the definition of law.
  • Customs: Customs or usages having the force of law are also to be invalid if they are inconsistent with Fundamental Rights.

Exceptions:

Cause (3) exempts the following from the operation of article 8 clause (1) and (2) i.e. that the law inconsistent with or in derogation of Fundamental Rights to be void:

(a) Laws relating to the members of armed forces or of the police or of such forces as are charged with the maintenance of public order.

 (b) (i) laws specified in First Schedule, which were in force before the commencement of the Constitution or as amended by any of the laws specified in that schedule.

       (ii) other laws specified in Part I of the First Schedule.

First Schedule contains two parts; Part I & Part II.

Laws mentioned in part i and part ii of the First Schedule.

According to clause 4, the laws specified in part II of the first schedule are to be conformed to Fundamental Rights by the appropriate legislature within a period of two years. However, no such direction is made regarding the laws specified in part I of the said schedule.   

It is pertinent to point out that the said period of two years can be extended by the appropriate legislature through a resolution for a period not extending six months. If the appropriate legislature is parliament in respect of a law such resolution shall be a resolution of National Assembly. It needs not to be passed from the Senate. In respect of the laws passed by provincial assemblies the concerned provincial assembly is the appropriate legislature to extend the period of two years.

Retrospective effect?

The provisions of the Constitution relating to the Fundamental Rights have no retrospective effect (AIR 1958 SC 287, AIR 1965 SC 502). All inconsistent laws therefore become void only from the commencement of the Constitution. Act done before the commencement of the Constitution in contravention of provisions of any law, which after the commencement of the Constitution becomes void with respect to the exercise of any of the Fundamental Rights, are not affected. The inconsistent law is not wiped out so far as the past acts are concerned.

Rule of Severability

It is not the whole Act that should be held inoperative but only such provisions of it as are violative of Fundamental Rights.

In State of Bombay v/s F.N. Balsara (AIR 1951 SC 318) the provisions of eight sections of the Bombay Prohibition Act, 1949, were held ultra vires on the ground that they infringed the Fundamental Rights of citizens. But the Act, minus invalid provisions, was allowed to stand.

But sometimes valid and invalid provisions of an Act are so closely mixed up that they cannot be separated from one another. In such cases, the invalidity of the portion must result in the invalidity of the Act in entirety. The reason is that what remains valid is so inextricably wound up with the part declared invalid, that the valid part cannot survive independently.

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