Impact of Constitutional Courts, Rule of Law, and Constitutional Review on the Protection of Fundamental Rights

Abstract

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The safeguarding of fundamental rights in constitutional democracies is based on three essential institutional pillars, namely, constitutional courts endowed with the rights of judicial review, strong adherence to the rule of law, and an integrated system of constitutional review that exposes the state action to a rights-based questioning. This paper explored how these three interrelated processes affect the safeguarding of basic rights in Pakistan and conducted an investigation on the constitutional provisions set in the Constitution of the Islamic Republic of Pakistan 1973 as well as in the jurisprudential history of the Supreme Court of Pakistan and the High Courts. The study followed a qualitative research methodology based on the doctrinal approach to research using constitutional law and legal interpretation, with the primary sources of the study being the constitutional provisions, landmark judicial case decisions, and constitutional amendments, complemented by the secondary sources, which include law review articles, legal commentaries, and constitutional comparative study. The content analysis and legal interpretation provided the way to analyze the material and reveal the tendencies of the judicial reasoning, development of the doctrine, and principles of the Constitution as applied to the protection of the basic rights. The results show that the Supreme Court of Pakistan has continued to liberalize the understanding of fundamental rights by gradually broadening the meaning of fundamental rights by conducting purposive interpretation of the constitution, articulating the doctrine of right to life under Article 9, and introducing the new system of suo motu. Nonetheless, structural tensions between judicial activism and institutional separation of powers, endemic non-compliance by the executive with court directives, and the susceptibility of constitutional rights protections to constitutional amendments that compromise the basic fabric of the constitution are also found in the study. The paper ends with the recommendations to protect the constitutional rights by improving the independence of judicial and legislative harmonization with the constitutional rights norms and formal inclusion of a basic structure doctrine of the constitutional law of Pakistan.