Daily Times

Article 10-A was inserted in our Constitution by the Constitution (Eighteenth Amendment) Act, 2010. The amendment codified the principles of due process and placed it on a constitutional footing. It reads: ‘For the determination of his civil rights and obligations or any criminal charge against him a person shall be entitled to a fair trial and due process’.

Historically, due process has remained an integral part of our jurisprudence. The superior courts have taken a consistent view that the principles of natural justice shall be read into every statute even if this is not expressly provided for in that statute (unless specifically excluded). Now with the enactment of Article 10-A, due process has been placed on a higher pedestal, and its application cannot be ousted by any legislation or executive instrument. Any law or custom or usage having a force of law, per Article 8 of the Constitution, which is inconsistent with Article 10-A and the principles of due process, would be void and struck down by the Courts exercising Constitutional jurisdiction.

Just what is due process? The concept stems from the principle of natural justice, which has been loosely employed for centuries as a technical term for procedural fairness. There are elements or stages that form or culminate into due process; such as notice of proceedings to the affected person, opportunity of hearing, opportunity to cross examine or question the adverse evidence or material so confronted and that all such hearings should be open before an impartial tribunal or court. In addition, the decision should speak. This means that it should clearly spell out the reasons based on which eventual finding was given.

Regardless of the eventual decision on the merits of the dispute, if that decision was taken by adopting a procedure that was manifestly unfair i.e. it lacked any of the essential ingredients of due process; then that alone is sufficient to quash such a decision. Procedural fairness, now with the enactment of Article 10-A applies to both discharge of judicial and executive duties (even if there is no overlap).

In the UK, associated principles of relativity and proportionality play a significant role concerning matters involving questions of due process. Principle of relativity prescribes that due process, does not mean giving an oral hearing in all circumstances. It only means a person affected by a decision be given an opportunity of participation in making of the decision that is proportionate in light of the nature of such decision. The question for proportionality would be: how much involvement is enough for necessary protection of the person affected? This in turn, is informed by three process values, in the UK; promoting good outcomes, showing appropriate respect for a person affected and imposing rule of law on the process. The development of jurisprudence under Article 10-A in Pakistan, in view of the associated principles of relativity and proportionality could also minimize process costs (the risk that, by requiring a particular procedure, the law will damage the capacity of the public authority to carry out its functions justly and effectively) incurred by due process.

Just what is due process? The concept stems from the principle of natural justice, which has been loosely employed for centuries as a technical term for procedural fairness

In the US, however, due process has a substantive dimension as well. The due process clause has been interpreted as protecting substantive individual rights, some of which are explicit in the Constitution, and some of which are implicit in the text of the Constitution. In the US, substantive due process, as a Constitutional principle allows federal courts to protect certain fundamental rights from government interference under the authority of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, that prohibit the federal and state governments, respectively, from depriving any person of ‘life, liberty, or property, without due process of law.’ In contrast, procedural due process, in the US, requires that when the government takes away a person’s life, liberty, or property, it must provide adequate procedures. This substantive dimension has considerably expanded the scope of due process in the US curbing both excesses and abuses by the coordinate branches.

Surprisingly, Article 10-A has not received the interpretation or reception from the superior Courts in Pakistan as was envisaged after the Eighteenth Amendment. The Courts continue to cite common law maxim of audi alteram partem (listen to each side of the story) or generally rely on the principles of natural justice instead. This will change inevitably as the Court processes, are at times, propelled by societal trends and evolving global Constitutional norms. Equal protection clause, for instance, in the US Constitution, remained in abeyance for a long time after it was introduced. Justice Oliver Wendell Holmes even penned in Buck v Bell (1927) ‘(The Equal Protection Clause] is the last resort of constitutional arguments.’ This clause under the Fifth and Fourteenth Amendments to the Constitution would later radically transform the twentieth century America.

It is only a matter of time until Article 10-A of the Constitution is afforded greater significance by the superior courts and consistently cited as one of the salient features of our Constitution. Besides Article 9 of the Constitution (invoked to protect right to life), this too, in time is likely to receive an expansive approach from our superior Courts with both substantive dimension and layered approach on procedural dimension of it. This could help witness a dramatic liberalization of access to courts, a substantive right of all citizens and non-citizens, collaterally promoting openness and transparency on all levels, curtailing arbitrary government. To exciting times!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, February 21^st 2018.