SOAS Research Online

Abstract

The study deals with one of the crucial fundamental rights in the Pakistan Constitution, the right to personal liberty, which is comprehensive. In an era of centralised and totalitarian rule in Pakistan, by the head of the Central Executive before 1958, with little of parliamentary Government or by the head of the armed forces after 1958, this right has been more under attack from bureaucrats, than any other. The constitutional provisions for the protection of personal liberty in Pakistan are as comprehensive as in other modern constitutions, but they are not so extensive as to cover all kinds of arbitrary deprivation of personal liberty. The role of the judiciary in protecting personal liberty has, therefore, been more difficult. It is necessary to maintain a proper balance between the security of State, the public safety and the maintenance of law and order, on one hand and the right to personal liberty on the other. This problem has inspired me to undertake this study. The work is divided into eleven chapters. It begins with the interpretation of the terms 'liberty' and 'personal liberty', the scope of personal liberty in this present age and its historical development from the time of Magna Carta to the French and American Bills of Rights. It is followed, in the next chapter, by an account of the development in the 19th and 20th centuries, the Dutch and Belgian Constitutions, the American 14th Amendment, the development after the World War I and II. The Universal Declaration of Human Rights and European Convention of Human Rights are dealt with. A comparative study of the provisions regarding personal liberty in the various constitutions of the world is attempted in the third chapter. The fourth chapter generally deals with development in Pakistan from 1947 to the Proclamation of Martial Law in 1969. A detailed analysis of the constitutional provisions relating to personal liberty, including protection against retroactive punishment, is made in the fifth chapter. Procedural safeguards, such as protection against double jeopardy and self incrimination, are discussed in the sixth chapter. The crucial problems of preventive detention, the satisfaction of detaining authority, the detaining authority's privilege of withholding certain facts in the general public interest and the right of the alien enemy, find by place in the seventh chapter. It is followed in the eighth chapter by the freedom of movement and the question of reasonable restrictions on the right in the general public interest. The remedies for violation of the right to personal liberty, in particular the writ of habeas corpus, is comparatively and analytically discussed in the nineth chapter. In the tenth chapter the difficulties of ensuring the protection of the rights of the people when martial law is in force are discussed. Various kinds of martial law and state of seige, are considered and the role of judiciary analysed. Finally, conclusions are drawn and some suggestions as to the solution of certain problems in the field of personal liberty, are made in the eleventh chapter.