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November 1, 2019

State of due process


November 1, 2019

Jurisprudence of the period when the Constitution is abrogated or put in abeyance needs to be ignored as a precedent for the reason that during that time basic constitutional norms and fundamental rights stand denied. Whenever the constitution is restored, the validity and legality of those decisions can be questioned. The constitutional protection to those decisions by the people through a constitutional amendment only makes them valid subject to the rights under the constitution.

The boundaries between legal and illegal, valid and void and constitutional and unconstitutional acts are well defined in our constitutional and legal dispensation. The constitution guarantees the basic value of modern civilization – right is might. Our constitution contains guarantees in the form of several fundamental rights. These rights have two sources and facets. They are a guarantee obtained from the state by citizens and other persons in Pakistan that, while exercising its powers in relation to them, the state in its actions shall observe those rights.

To the world, the state assures that it will observe those rights. Most of the rights have their twins in the Universal Declaration of Human Rights and other international human rights charters. A state enjoys status, respect and recognition internationally only if it observes those rights. All these charters are comprehensive documents, and jurisprudence has been developed around these rights by different adjudicatory forums.

The European Convention on Human Rights was a joint effort of several European countries to devise their own document in addition to the UN Declaration of Human Rights. Article 6 of the European Declaration is of great relevance in the context of Pakistan for Article 10-A added to the constitution though the former Article inspired the 18th Amendment.

Article 10-A guarantees that in the determination of his/her civil rights or in a criminal charge, a person shall be entitled to fair trial and due process. This newly recognized right, along with Articles 4, 9,10, 13 and 14 of the constitution, casts a solemn duty upon state functionaries and adjudicatory forums that state actions must be judged against these rights. Criminal law jurisprudence here still moves around the colonial pattern and procedural labyrinths. These constitutional rights are only occasionally in issue before the courts while deciding matters relating to life and liberty of the people.

Corruption, terrorism and several other social crimes are difficult to investigate in view of the advancement of technology and means. Collection of direct evidence may be hard, time-consuming and costly. There may be transnational offences or the accused may escape the other jurisdictions. But that is hardly a justification to lower the threshold and standard of evidence or shift the burden of proof from the prosecution to the accused and to arrest people and torture them to collect evidence.

Short-cut solutions to the deteriorating standards of investigations badly reflect on a state. Conferring arbitrary powers of denial of life and liberty on state functionaries is an antithesis to the constitution and rule of law. Legitimate and modern means of investigation employed in our countries assure that unimpeachable evidence of crime can be collected and culprits convicted without bending the rules.

There is a general perception that those who matter lack both the desire and the will to improve the system. A common man thinks that when it comes to the powerful and mighty, even the biggest crime goes unpunished. Unfortunately, there are many examples of that.

Due process, substantive and procedural, is a sophisticated form of the first principle of natural justice ‘audi alteram partem’. Substantive due process means that certain constitutional norms/rights are followed while determining the process. A process inconsistent with those rights is not due process. The procedural due process means that other basic norms of justice (right of hearing before a fair and impartial tribunal) are observed while determining rights and liabilities. Legal literature and jurisprudence is abundant on the subject.

Rights granted by the constitution create a corresponding duty of abiding by the law and the constitution, which is an inalienable and absolute duty upon all having no exception based on any doctrine. In the juridical relations of power and duty, the duty to account for the exercise of power is inherent. Law requires accountability for all acts and deeds done in the public domain. A pubic office-holder is accountable to the law and the people. The accountability process is however required to be performed by state functionaries in accordance with the law and constitution – assuring fundamental rights of the accused. The state has the power to arrest but only after due process, which means sufficient incriminating material. It has the power to punish but after a fair trial. The state has the power to collect evidence but without torturing people. The state even has the power to deprive a person of his life but only in accordance with the law – a law to which people have consented.

Terrorism and corruption are the two most rampant crimes in Pakistan. By committing a crime, a person is liable to be prosecuted and punished under law but the constitution guarantees him/her rights. The law cannot override those rights for that would amount to a committing a fraud on the constitution. Public office-holders, be they anyone, all are accountable to the law and the constitution. This is the biggest guarantee of their protection against any arbitrary power. The constitution guarantees due process without exception. The law must follow the due course without any deviation and expediency.

The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan.

Email: [email protected]

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