Monday, July 18, 2011


Article 10-A of the Constitution, being a newly born piece of legislation, requires to be dilated upon with a progressive interpretative approach. I strictly refrain from involving myself in negative criticism. That's why I headed my essay with words "welcome to Article 10-A". The said Article is reproduced hereinbelow for onwards convenience:
"Article 10-A": For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to fair trial and due process".
To be concise, I  will limit the scope of my interpretation/ construction to the extent of "due process". Before giving my own views in black and white, I refer the case "Fouji Foundation and another vs. Shamim ur Rehman i.e. NLR 1984 SCJ 403", in which the doctrine of due process of law has been summarized as follows:--
1.       He shall have due notice of proceedings which effect his rights.
2.       He shall be given reasonable opportunity to defend.
3.       The Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of its honesty and impartiality; and
4.       That it is a Court of competent jurisdiction.
The above mentioned judgment has also been referred in PLJ 2010 SC 538.
Further, it also has been held in PLD 1989 Karachi 404, that right of access to Justice to all is a well recognized inviolable right enshrined in Article 9 of the Constitution and is equally found in the doctrine of due process of law.
A bird's eye view of the Article 9 of the Constitution of Pakistan suddenly catches the mind to concentrate on the words "save in accordance with law" and this very part of this Article has compelling force to believe that this Article 9 inherently is heraldic of the doctrine of due process of law.
It is held in Cooley's book on constitution, volume 2 Page 741, and AIR 1950 SC 27 that due process of law has never been defined by Judges or jurists in America. The best description of the expression would be to say that it means in each particular case such an exercise of the powers of Government as the settled maxims of law permit and sanction under such safeguards for the protection of individual rights, as those maxims prescribe for the class of cases to which the one in question belongs. In "Words and Phrases" by Mian Mohibullah Kaka Khail, volume 1, the term due process of law has been discussed as follows:--
Due Process of Law.--The word "due" in the expression "due process of law" in the American Constitution is interpreted to mean just, according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is "due” from otherwise, according to law.
In the earlier times, the American Supreme Court construed "due process of law" to cover matter of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word "due". The expression was used in such a wide sense that the Judges found it difficult to define it.
The word "law" may be used in an abstract or concrete sense. Sometimes it is preceded by an article such as "a" or "the" or by such words as "any”, "all", etc., and sometimes it is used without any such prefix. But generally, the word "law" has a wider meaning when used in the abstract sense without being preceded by an article. The question to be decided is whether the world "law" means Nothing more than statute law ……………
Now whatever may be the meaning of the expression "due process of law", the word "law" is common to that expression as well as "procedure established by law" and is not bound to adopt the construction put on "law" or "due process of law" in America; yet since a number of eminent American Judges have devoted much thought to the subject.
What "due process of law" exactly means is difficult to define even at the present day. The Constitution contains no description of what is "due process of law" nor does it declare the principles by application of which it could be ascertained.
"Due process of law" has never been defined by Judges or jurists in America. The best description of the expression would be to say that it means in each particular case such an exercise of the powers of Governments as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.
The "due process" clause in the American Constitution came to be used as a potent instrument in the hands of the judiciary for exercising control over social legislation. The judicial pronouncements are not guided by any uniform principle, and the economic and social ideas of the judges, who form the majority in the Supreme Court for the time being, constitute, so to say, the yard-stick for measuring the reasonableness or otherwise of any enactment passed during that period. No writer of American Constitutional Law has been able uptill now to evolve anything like a definite and consistent set of principles out of the large mass of cases, where the doctrine of "due process of law" has been invoked or applied.
See AIR 1950 SC 27, also PLD 1983 SC 457.
Now, with the induction of Article 10-A in the Constitution, it would be unfair to leave the term "Due Process of Law" with amorphous definitions. This is the high time to fill the "void" so as to bestow certain meanings and implications upon the afore-mentioned term. The word "Due" means "deserved", "usual", "adequate", "proper" and "expected", while the word "Duly" has been defined in the ordinary English dictionaries as "properly" or "in the formal manner" or "punctually".
I hereby emphasize on the phrase "in the formal manner". There is no difficulty to grasp such a phrase. All the formalities provided by law given in any statute so as to meet the intended ends, if fulfilled accordingly, may be said to be done "in the formal manner". In view of what is narrated immediately hereinbefore, the common principle of interpretation i.e. a provision of law, if worded with the word "shall", may not be construed to be mandatory if non-compliance of the same does not provide any penal provision consequent thereto. The uncertainty hidden in interpretation of the word "shall" seems to die with all its flexibility. The Article 10-A has buried all the ambiguities which might create hurdle in giving the word "shall" its plain meaning. Without reluctance, it may be said that all the things should be done in the formal manner as now it has constitutional compulsion so to be done.
I am not going to decisively assert that the Article 10-A, particularly the term "Due Process of law" employed therein, impels to take every provision of law as mandatory which have been held to be directory otherwise. However I venture to provoke everybody's legal accumn to think through the following proposition, viz,
(I)      In view of the provisions laid down under the Article 10-A of the Constitution, whether the word "shall" will be construed mandatorily to be mandatory?
(II)    Whether a violation of any provision ending in a mere curable irregularity would be taken otherwise i.e. incurable in view of the above-said Article?
(III)   Whether all the codal formalities have become mandatory namely, whether the same have to be fulfilled as provided and not otherwise?
(IV)   Under the spotlight of what has been discussed above, Whether a "formality" has been infiltrated with the "substantiveness"?
At the outset, it may look to be difficult to guess the said riddles but the same is inevitable to do so in the interest of noble cause.
For sake of avoiding the boring effects of the above dryish discussion, I quote verses by Miguel de Cervantes to romanticize the issue, i.e.:--
"To dream the impossible dream,
To fight the unbeatable foe,
To bear with unbearable sorrow,
To run where the brave dare not go,
This is my quest, to follow that star,
No matter how hopeless, no matter how far,
To fight for the right without question or pause,
To be willing to march into hell for a heavenly cause."

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