The Constitution is a body of precedents governing the affairs of states. It protects citizens’ rights and enforces the duties of the state’s citizens. After the independence of India and Pakistan, both states made their own constitutions, but the heritage of law in both countries is the same. China, on the other hand, gained independence in 1949 and established its own legal system based on the Confucian philosophy of social control. The duties of a citizen in Pakistan are mostly the same as in India and China, such as the right to education; according to Article 25, the Pakistani state is bound to provide free education from age 5 to 16. On the other hand, in China, according to Article 19, the state provides better and compulsory primary education to every citizen of its state. There are many other duties of a state and its citizens, which are mentioned below.
In the comparison of these state constitutions, there are many key differences, which are as follows:
Preamble: The Preamble of the Islamic Republic of Pakistan begins with the name “Allah the Almighty.” It refers to the founder of Pakistan, Quad-i-Azam Mohammad Ali Jinnah. It promises adequate measures to protect the legitimate interests of minorities. It also promises to protect the independence of the judiciary.[1]
The Preamble of the Indian Constitution is more compact. It talks about things like minority rights and the independence of the judiciary, but in a clear way.[2]
People have power in China, and there are people who manage state affairs economically and socially in accordance with the law.
The Constitution of Pakistan recognises the right to privacy. The Supreme Court of India recently declared it to be a fundamental right.
The Constitution of Pakistan also recognises the right to education for children between the ages of 5 and 16. The Education Act of 2009 guarantees education for children between the ages of 6 and 14. In China, education is compulsory at the primary level, and the government ensures it in accordance with the law.
The Constitution of Pakistan guarantees the right to information and declares human dignity inevitable.In this regard, India passed the Right to Information Act in 2005.China does not expressly mention the right to information, but it does guarantee the right to free expression.[3]
Aside from the differences, a citizen has many responsibilities to the state, including:
Pakistan’s constitution is lengthy, but it fails to address a citizen’s fundamental responsibilities to the state, which is the failure of Pakistan’s legislators. Pakistan must seek advice from its neighbour on laws and citizen duties, such as those outlined in the Indian Constitution’s Article 51-A and the 86th Amendment Act of 2002. The duties include the following:
Chinese citizens have the same duties as Indian citizens, such as
It is a fundamental duty of the state to protect the rights of all citizens of society, regardless of gender, race, creed, or religion. There are the following fundamental duties regarding their respective constitutions: A state must ensure
i) The right to education
Every citizen of a state has the fundamental right to an education. In Pakistan, according to Article 25, every citizen has the right to free education. A state is responsible for providing free and compulsory education from age 5 to 16. In China, Article 46 gives the right to a free and good education. In India, it is the parent’s responsibility to ensure their children’s education from the age of six to fourteen.
ii) Establish a better economy and social security
It is the duty of the state to establish a better economy. Every country’s economy is like its lungs. Without proper functioning of the lungs, a human body cannot breathe or survive properly.
A better economy is directly related to social security; if the state ensures the right to individual protection and provides a good and safe environment for state industrialists and foreign investors, the state’s economy will progress on a positive path.
iii) Electoral rights and equality
According to Article 34 of the Chinese Constitution, every Chinese citizen over the age of 18 has the right to vote and stand in an election regardless of nationality, race, gender, or religious belief. whereas in Pakistan, a citizen must be at least 18 years old to cast a vote of his or her choice; he or she can also stand in an election, but as the head of a Muslim state, he or she must be a Muslim and follow the practise of Islam according to On the other hand, in India, all the rights are the same, and to become the head of state, it is not necessary to be a Hindu, Muslim, Sikh, etc.
iv) Keep abiding by international law and treaties.
Every state has a fundamental and moral obligation toward another state to uphold international law and the promises and treaties signed between them. For example, the Indus Water Treaty of 1960 was signed between India and Pakistan regarding the usage of water. As neighbors, both states must maintain peace and foster good relations for the benefit of their people. An eruption on the Line of Control (LOC) between India and Pakistan, and possibly between China and India, must be stopped.
The duties of the election commission in India and Pakistan are the same, such as ensuring that no dispute happens at polling sites, providing fairness, and not rigging elections. Facilitate and protect the citizens’ rights to vote and stand in elections independently.
It is the responsibility of the state to protect the property rights vested in the citizens of the state. According to Article 24 of the Pakistani Constitution, no one shall be deprived of his right to property unless the property is used for public or government interest, in which case the government pays the dues or does what is best according to law. Articles 12 and 13 of the Chinese constitution make sure the rights of its citizens are protected, and if any property is used for public or government interest, it will be compensated according to law. In India, two articles, 31 and 19(1)(f), guarantee the individual’s fundamental property rights to the state.
Following all of the above-mentioned lengthy discussions, we concluded that the duties of a state and its citizens are critical to maintaining peace among states and progress in all areas of life. Every country has its own set of rules, regulations, and laws, but the rights to an education, to property, and to freedom of speech are universal. The right to vote is the standard right of every citizen of a democratic country. Each state must follow international law and uphold the treaties signed between them.
https://www.helplinelaw.com/law/china/constitution/constitution03.php
[1] https://www.pakistani.org/pakistan/constitution/part2.ch1.html
[2] https://www.iasparliament.com/current-affairs/comparison-of-constitutional-aspects-india-and-pakistan
[3] https://www.refworld.org/pdfid/4c31ea082.pdf
[4] https://nayadaur.tv/2020/03/fundamental-duties-of-citizens-must-be-added-to-the-constitution/
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>The rule of law simply means supremacy of law, equity before law, and predominance of the legal spirit. Every successful country is only based on its administration of the rule of law. The country, with its absence or inadequate rule of law, bears the economic and other crises. As Pakistan is the worst country in the South Asian region in terms of implementation of the rule of law, according to the World Justice Project’s (WJP) rule of law index, Pakistan ranked 129 out of 140 in 2021 surveys, and in the recent index, it fell further to 137, which is much comparatively low compared to its neighbour India, which ranked 77 out of 140.[1]
According to Professor A.V. Dicey The rule of law is the absolute supremacy or superiority of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness.
The rule of law has been derived from the French phrase “le principe de legalite,” i.e., government based on the principles of law. No one is above the law.
Incompetent people in power are the big challenge to keeping the rule of law administered properly. Since independence until now, Pakistan has faced leadership crises, proper reforms in laws, and their implementation. Lack of legal education and public legal awareness among the citizens becomes the major challenge to the rule of law in India and Pakistan. Due to a lack of these elements, Pakistan ranks 137 out of 140 countries. On the other hand, India faced challenges in protecting the rights of minorities and raising public awareness regarding their fundamental rights provided by the constitution.
Pakistan does not meet most of the requirements of the rule of law; things may be improving, but at a very slow pace. Pakistan does not meet the following requirements:
The law must be accessible and, as far as possible, understandable, clear, and predictable. Unfortunately, this rule of law requirement is not met in Pakistan. The laws in Pakistan lack clarity. They are still couched in the colonial English system, and their sentence structure is hard to grasp even for a lawyer.
Another requirement of the rule of law is that there should be an independent judiciary. When people talk about an independent judiciary, they often refer to the higher judiciary, i.e. the High Courts and the Supreme Court. However, our analysis will also include the lower judiciary. I believe, and statistics and social experiments also tell us, that there is no independent judiciary in Pakistan. Montesquieu says that any punishment that does not arise from absolute necessity is tyrannical. Unfortunately, our courts have become instruments of tyranny instead of guardians of the rights of the weak against the powerful.
Another aspect of the rule of law is that means must be provided for resolution without undue cost or delay. All case reduction principles, i.e., case management, cost award, ADR, etc., exist only on paper and not in practice, so I will end this paragraph with a common expression prevalent among litigants in our culture, which is: “God save us from two things: courts and hospitals.”
Yes, the rule of law is quite better in India than Pakistan. According to the 2021 World Justice Project Index report, Pakistan ranks 129 out of 140 countries in rule of law, while India ranks 79. In the recent WJP report, Pakistan performs badly in protecting the rule of law and ranks 137, while India makes progress and stands at 77. Recent events such as the illegal detention of Senator Azam Sawati, MNA Shahbaz Gill, and other senior journalists became the main reason for the downfall of Pakistan’s rule of law worldwide. Another reason is the following:
The rule of law is the foundation on which the United Nations is built. It is the basis of peace and stability on the international stage. All states in the General Assembly have an obligation to comply with the Charter of the United Nations and the wider body of international law. All member states are expected to be subject to these laws, apply them in their international relations, and be equal before them. The work to ensure this basic principle is the essence of our work to promote the rule of law at the international level.
The United Nations also promotes the rule of law in member states by supporting the development of norms, social practices, and institutions that ensure the independence of the main administrative institutions. This strengthens the decision-making processes to which political leaders are subject by limiting the arbitrary exercise of political power. This is particularly important in post-conflict situations to consolidate and build on a political settlement.
It is also important to consider how the rule of law reaches far beyond laws and courts. By enforcing the rule of law, which is equally applicable to all without discrimination, the rule of law provides political and economic opportunities for all members of society. It empowers people by giving them the right to access public services, thereby holding state entities accountable for providing those services. The rule of law also strengthens mechanisms that promote and protect universal human rights. As such, strengthening the rule of law creates both opportunity and justice and ultimately helps create better conditions for broader state and UN accountability.
As a result of our detailed analysis, we concluded that no country can progress through ignorance of the rule of law. The rule of law provides equal opportunities for all members of society. The rule of law has great importance at the international level. The United Nations (UN) is only successful in keeping the rule of law. But Pakistan is performing badly in abiding by the rule of law. The challenges that Pakistan is facing, i.e., incompetent people in power, lack of proper reforms in the law, slow and prolonged trials, lack of legal awareness among the public, and absence of transparency in justice, become the main reasons for the absence of the rule of law. On the other hand, India and other neighbours perform well in ensuring transparency in the rule of law, which is why they are good at international ranking.
https://storyofpakistan.com/rule-of-law/
https://www.britannica.com/topic/rule-of-law/Challenges-to-the-rule-of-law
https://www.ijlmh.com/paper/rule-of-law-a-comparative-analysis-of-india-and-pakistan/#
[1] https://worldjusticeproject.org/rule-of-law-index/country/2022/Pakistan/Order%20and%20Security/
[2] https://blog.ipleaders.in/rule-of-law-2/#Rule_of_law_in_India
[3] https://byjus.com/free-ias-prep/rule-of-law-upsc-notes/
[4] https://worldjusticeproject.org/our-work/wjp-rule-law-index/special-reports/rule-law-pakistan
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>Public opinion on LGBT politics is complex. In June 2013, the Pew Research Center reported that of the 39 countries surveyed, Pakistan was one of the least accepting of homosexuality, with 87% of respondents saying “society should not accept homosexuality.” It is a criminal act and is punishable under Article 377 CR.PC.
Punishment: from two years to life imprisonment, a fine, or both. Hudood regulations, which theoretically allow the death penalty but have not been enforced since 1985, have never been used to prosecute homosexual acts.
In 2018, Pakistan passed a bill to protect the rights of transgender people, which was largely opposed by the public because of the misconception that transgender people have LGBTQ rights. There is a difference between them because a transgender person is transgender by birth, while LGBTQ people of the same gender change their gender according to their desire and also get married, which is forbidden in Islam and violates the laws of the land.
In this bill, transgender people are given many rights, which are listed below:
References
https://en.wikipedia.org/wiki/LGBT_rights_in_Pakistan#Public_opinion
https://na.gov.pk/uploads/documents/1526547582_234.pdf
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
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Let us suppose you have an idea for writing a book, so you pen down a rough draft and try to get it published. The publisher, who wants to save the money they would need to pay you, takes your idea and makes another book on the same lines and publishes it as their product. Now, the question arises, since you didn’t have any tangible belonging stolen from you and only the idea of your book got stolen, how do you get remunerations for the damages done to you?
The answer to this question lies in Intellectual Property Rights (IPR). IPR are a set of regulated rules and laws that intend to protect the intangible products of human ingenuity like distinct sounds, words, phrases, designs, inventions, etc. The outcome of the ‘mental labour’ of individuals finds protection under IP laws. Thus, due to the protection granted by IP laws, there comes a boost in development and research because the creators know that they get exclusive rights to production and the profits stemming from its sales.
Technology Transfer refers to a smooth flow of ideas, inventions, and discoveries to different entities who could further use them to make something new. The creators, protected under Intellectual Property Rights, grant both private and public users access to their IP for further development and research, which leads to new products and ideas.
Example: You manage to make a drug that cures Haemophilia (disorder stopping proper blood clotting). Now, technology transfer works in the way that you give access to the said drug to another researcher working on hemorrhages (blood loss) to ensure that their research gets a boost due to your cure. So, Technology Transfer creates a web of collaboration where one finds assistance from different individuals and entities in a similar field, and the primary goal becomes speedy research and development.
Technology Transfer has the following benefits:
More often than not, Research and Development is a cyclic process wherein the profits booked from the sale and commercialization of the previous research provide for the funding of its successor. Usually, universities and other entities invest in the research and development of numerous ideas, which enables major multinational companies to purchase these developments and save costs on internal Research and Development and roll the ball further by developing their unique technologies. The revenue gathered from such sales helps in funding the research and development and perfecting the older ones. Thus, Technology Transfer does facilitate the production of an ecosystem of its own.
Cost Efficiency is another advantage of Technology Transfer that we usually find overlooked. To understand this idea, let us look at an example. Suppose you wish to go from point A to Z, but since the distance is too great, you would be bound to make some pitstops for resting and gathering your energy. On these pitstops, you would get refreshments and replenish your vehicle’s fuel. Now, let us place this metaphor in the tech world.
One simply doesn’t make penicillin from the raw materials; prior to penicillin, someone had to make the components used in the drug, like a constant source of electricity, sulphuric acid, etc. These numerous components are the pitstops from our metaphor. So, the costs related to the research and development required for the production of sulfuric acid become needless for the research and development of penicillin. Thus, we find that we can skip the numerous pitstops altogether, and the length of the journey goes from A to Z to merely Y to Z since the previous steps were already completed by someone else.
The primary disadvantage of Technology Transfer comes from the human nature of being overly reliant on the product, i.e., since the machine/technology in question comes into existence through the collaborative efforts of numerous individuals and entities, its sustenance and maintenance would also require a collaborative effort. Failing to collaborate in the sustenance and maintenance of the technology, we would find that there would be a total breakdown of the ecosystem since an expert of the technology’s preceding invention wouldn’t know about the new technology and vice-versa.
Technology Transfer, prima facie, comes off as an extremely useful and efficient method of promoting research and development. However, one also ignores the outright problem that it would accompany itself, i.e., unemployment. Let us think from a different perspective: as of now, numerous individuals are working in the production of newer technology, and others working in the mass production of the present technology. So, what would happen if the progression of technological advancements increased exponentially? There are two possibilities that follow closely, namely:
Thus, letting technology and automation progress rapidly without assigning a substitute for the employment prospects of the individuals related to the field would, in all possibilities, lead to mass layoffs and firings.
Technology Transfer cannot get limited to a single step like granting access to one technology to another inventor. It consists of several stages through which one can ensure that efficient technology transfer and the protection of Intellectual Property go hand in hand. The six steps associated with the implementation of efficient technology transfer are:
Thus, to conclude, the concept of International Technology Transfer enables that the world of division and borders doesn’t end up limiting the pursuit of human developments and advancements and also ensures that the process of development for the underdeveloped areas attains a similar stature as their developed counterparts. The only aspect of International Technology Transfer that one needs to take into consideration is that the technology getting transferred is also suitable and cost-efficient for the receiver. For example, if an invention developed in India, and needs large amounts of human labour, gets transferred to the US, we would find the application of the said technology inapplicable since the labour costs in the US far exceed that of their Indian counterparts. This change in geographic location would make the usage of the tech moot due to the high costs that come with it. And on the other hand, any piece of technology that consumes enormous amounts of market shares and requires little to no manual labour would not be a suitable choice for India since it would further lead to an employment crunch.