The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Haleem, C. J.

(a) Constitution of Pakistan (1973), Arts. 2(c), 7, 8, 184(3), 270-A(1), 17, 16, 15, 18, 19, 31, 63(g) & 199(1)(c)-

It is only when the element of “public importance” is involved that the Supreme Court can exercise its power to issue the writ while sub Article 1(c) of Article 199 has a wider scope as there is no such limitation therein.

The opening words “without prejudice” in Article 184(3) mean only not affecting saving or excepting and when read with the words following thereafter, “to the provisions of Article 199”, the expression means no more than to save the provisions of Article 199 without, in any way, superimposing itself on the power of the Supreme Court to decide question of public importance relating to the enforcement of any of the Fundamental Rights. What it aims at is that it leaves the power of the High Court under Article 199 intact. It is for the party who is affected to choose which of the two forums it wishes to invoke, and if it be the Supreme Court then the power exerciseable is subject to the limitation under Article 184(3), that is, that the element of “public importance” must be involved in the enforcement of Fundamental Rights. I would, however, like to make it clear that the power conferred on the Supreme Court by Article 184(3) is distinct and has its origin in Article 22 of the 1956 Constitution and is exerciseable on its own terminology. The impression, if there is, that the trappings of sub-Article 1(a) and 1(c) of Article 199 are also to be read into this Article appears to me to be without substance as there are no words in Article 184(3) to incorporate them except, of course, the words “make an order of the nature mentioned in the said Article”, which are specifically referable to the nature of the order in sub-Article 1(c) of Article 199 giving such directions as may be appropriate for the enforcement of nay of the Fundamental Rights. The nature of the order, however, is the end-product of the judicial power exercised. Therefore, it will not control or regulate, in any way, the exercise of power so as to make it exerciseable only at the instance of the “aggrieved party” in the context of adversary proceedings.

The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non-incorporation of sub-Articles 1(a) and 1(c) of Article 199, the rigid notion of an “agrieved person” is implicit in Article 184(3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which the only person wronged can initiate proceedings of a judicial nature for redress against the wrong-doer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2-A), the Fundamental Rights and the directive principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam.

In this milieu, I am of the view that the adversary procedure, where a person wronged is the main actor if it is rigidly followed, as contended by the learned Attorney General, for enforcing the Fundamental Rights, would become self-defeating as it will not then be available to provide “access to justice to all” as this right is not only an internationally recognized human right but has also assumed constitutional importance as it provides a broad based remedy against the violation of human rights and also serves to promote socio-economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity, i.e., national integration and social cohesion by creating an egalitarain society through a new legal order.

This ideal can only be achieved under the rule of law by adopting the democratic way of life as ensured by Fundamental Rights and Principles of Policy. The intention of the framers of the Constitution, as it seems to me, is to implement the principles of social and economic justice enshrined in the Principles of Policy within the framework of Fundamental Rights. Chapters I & II of Part II of the Constitution which incorporate Fundamental Rights and directive principles of State policy, respectively occupy a place of pride in the scheme of the Constitution, and if I may say so, these are the conscience of the Constitution, as they constitute the main thrust of the commitment to socio-economic justice. The directive principles of State policy, respectively occupy a place of pride in the scheme of the Constitution, and if I may say so, these are the conscience of the Constitution, as they constitute the main thrust of the commitment to socio-economic justice. The directive principles of State policy are to be regarded as fundamentals to the governance of the State but they are not enforceable by any Court. Nonetheless, they are the basis of all legislative and executive actions by the State for implementing the principles laid down therein. As the principles of democracy are not based on dogmas and also do not accept the theory of absolutes in any sphere of socio-economic justice, therefore, the authors of the Constitution, by enumerating the Fundamental Rights and the Principles of Policy, apparently did so in the belief that the proper and rational synthesis of the provisions of the two parts would lead to the establishment of an egalitarian society under the rule of law. However, while implementing the directive principles of policy, the State should not make any law which takes away or abridges the Fundamental Rights guaranteed by Chapter I in view of the embargo placed by Article 8(1) and (2). Necessarily, therefore, the directive principles of State policy have to conform to and to operate as subsidiary to the Fundamental Rights guaranteed in Chapter I, otherwise the protective provisions of the Chapter will be a mere rope of sand. Law, in the achievement of this ideal, has to play a major role, i.e., it has to serve as a vehicle of social and economic justice which this Court is free to interpret.

Articles 3, 37 and 38 of the Constitution juxtapose to advance the cause of socio-economic principles and should be given a place of priority to mark the onward progress of democracy. These provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State policy. If an egalitarain society is to be formed under the rule of law, then necessarily it has to be by legislative action in which case it would be harmonious and fruitful to make an effort to implement the socio-economic principles enunciated in the Principles of Policy, within the framework of the Fundamental Rights, by enlarging the scope and meaning of liberties, while juridically defining them and testing the law on its anvil and also, if necessary, with the co-related provisions of the Objectives Resolution which is now a substantive part of the Constitution.

The liberties, in this context, if purposefully defined will serve to guarantee genuine freedom not only from arbitrary restraint of authority, but also freedom from want, from poverty and destitution and from ignorance and illiteracy. That this was the purport of the role of the rule of law which was affirmed at Lagos in 1961in the World Peace Through Law Conference:

“Adequate levels of living are essential for full enjoyment of individual’s freedom and rights. What is the use of freedom of speech to under-nourished people or of the freedom of press to an illiterate population. The rule of law must make for the establishing of social, economic and cultural conditions which promote men to live in dignity and to live with aspirations.”

The Court will be in a position, if the procedure is flexible, to extend the benefits of socio-economic change through this medium of interpretation to all sections of the citizens.

This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future. It would thus, be futile to insist on ceremonious interpretative approach to constitutional interpretations as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of policy to all the segments of the population.

After all the law is not a closed shop and even in the adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint. Why not then a person, if he were to act bona fide activise a Court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation/class action, seeks to achieve as it goes further to fide makes an application for the violation of any constitutional right of a determined class of persons whose grievance go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of ht meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, “(1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.”

Taking the discussion further, this Article does not say as to what proceedings should be followed, then whatever be its nature must be judged in the light of the purpose, that is, the enforcement of any of the Fundamental Rights, it is. Therefore, permissible when the lis is between an aggrieved person and the Government or an authority to follow the adversary procedure and in other cases where there are violation of Fundamental Rights of a class or a group of persons who belong to the category as aforestated and are unable to seek redress from the Court, then the traditional rule of locus standi can be dispensed with, and the procedure available in public interest Court by the person acting bona fide. On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case.

Now as to the nature of the order, article 184(3) is worded to incorporate the order of the nature which the High Court can widest possible terms which is a clear manifestation of the intention of the framers of the Constitution not to place any procedural technicalities in the way of the enforcement of Fundamental Rights, be it of an individual or a group or class of persons.

Lastly is the consideration of the connotation of the expression “public importance” which is tagged to the enforcement of the Fundamental Rights as a pre-condition of the exercise of the power. This should not be understood in a limited sense, but in the gamut of the constitutional rights of freedoms and liberties, their protection and invasion of such freedom in a manner which raises a serious of public importance, whether they arise from an individual’s case touching his human rights of liberty and freedom, or of a class or a group of persons as they would also be legitimately covered by this expression, Reference in this connection can be made to the observation. [p. 49] I.

The case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence. [p. 493] J.

“In all systems of law which cherish individual freedom and liberty, and which provide constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance.” [p. 493] K.

Having regard to the connotation of the words “public importance” it will be for the Supreme Court to consider in each case whether the element of “public importance” is involved in the enforcement of the Fundamental Rights irrespective of the individual’s violations or the infractions of a group or a class of persons. [p. 492] L.

Petition accepted.

Advocate for the Petitioner:
Yahya Bakhtiar, Senior Advocate Supreme Court, Aitzaz Ahsan, Advocate Supreme Court, S. Iftikhar Ahmed Gilani, Advocate Supreme Court M. A. Siddiqi, Advocate-on-Record.

Advocate for the Respondent No.1.
Ali Ahmad Fazeel, Attorney-General for Pakistan, Sh. Ghias Muhammad, Senior Advocate Supreme Court, Muhammad Ali Sayeed, Senior Advocate Supreme Court, Tanvir Ahmed Khan, Addl. Advocate-on-Record General, Punjab, Aftab Farrukh, Senior Advocate Supreme Court, Rashid Akhund, Advocate Supreme Court and Fazale Hussain, Advocate-on-Record.

Advocate for the Respondent No.2.
Malik M. Qayyum, Dy. A.-G., Sajjad Ahmed Sipra, Dy. A.-G. and Gh. Fazale Hussain, Advocate-on-Record.

Khalil Ramedy, A.-G. Punjab, Rao M. Yousaf Khan, Advocate-on-Record, Wajihuddin Ahmad, A.-G. Sind, Bashirullah Khan, Addl. A.-G. N.-W.F.P. and Yakub K. Eusafzai, A.-G. Baluchistan on Court Notice.

Dates of hearing: 1st, 2nd, 3rd, 6th, 7th, 8th, 13th, 14th, 15th, 16th and 17th February, 1988.