Our varying standards of constitutional due process

A 42-year-old hardworking, honest teacher at a government school in Rabwah was brutally tortured by police. The injuries he sustained led to his untimely demise. His name was Abdul Qudoos. The irony is that this law-abiding citizen for God knows what reason was picked up as a suspect in a murder investigation but was never formally charged. In a blatant violation of the constitutional rights guaranteed to the citizens of Pakistan under Article 10 of the Constitution, which requires production before a magistrate within 24 hours of the arrest beyond which custody is unlawful, Qudoos was tortured for many days and only allowed to go after it looked like he was not going to survive. 

Debt recovery law faces due-process challenge in Pakistan

By Yasser Latif Hamdani

B.N. Rau, Constitutional Adviser to the Constituent Assembly that was drafting the Constitution of India (“the Indian Constitution”), travelled to the U.S.A, where he met U.S. Supreme Court Justice Felix Frankfurter. The latter advised him against including the phrase ‘due process’ in the Indian Constitution, and hence, in 1949, the phrase was not included in the text of the Indian Constitution. Indian courts, however, repeatedly located ‘due process’ in Article 14 of the Indian Constitution instead. One could, without exaggeration, describe the Pakistani legal tradition as India-lite (with a flavour of Islam). The Constitutions of 1956, 1962, and 1973 all avoided the use of the term ‘due process’ in keeping with the Indian tradition. In 2010, when Pakistan’s Parliament passed the Eighteenth Amendment to the Pakistan’s Constitution, a new article - Article 10-A - was introduced. It reads:

“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.”

Read more here.

US Case Law on Economic Classification

           Research by Yasser Latif Hamdani           

1.                   Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955)

Case Summary:

Provisions of an Oklahoma statute making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist, are not invalid under the Due Process Clause of the Fourteenth Amendment. To subject opticians to this regulatory system while exempting all sellers of ready-to-wear glasses does not violate the Equal Protection Clause of the Fourteenth Amendment.

US Supreme Court on Presumptions and Due Process- some landmark cases

By Yasser Latif Hamdani

Principle: It is clearly within the domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation.

1.       Hawkins v. Bleakly, 243 U.S. 210 (1917)  US SUPREME COURT on pages 1-2 of the attached copy of the Judgment

Excerpt:
The provisions in § 3 of the Iowa Workmen's Compensation Law, Laws of Iowa, 35 G.A. c. 147; Iowa Code Supp., 1913, § 2477m, requiring employees who reject the act to state by affidavit who, if anyone, requested or suggested that course, and providing that, where an employer or his agent has made such request or suggestion, the employee shall be conclusively presumed to have been unduly influenced and his rejection of the act shall be void. Held permissible regulation in aid of the general scheme of the act.
A workmen's compensation act which, prescribing the measure of compensation and the circumstances under which it is to be made, establishes a method of applying the measure to the facts of each case by due hearings before an administrative tribunal, whose action upon all fundamental and jurisdictional questions is subject to judicial review, is not open to objection upon the ground that it clothes the administrative body with an arbitrary and unbridled discretion in violation of due process of law.
Trial by jury is not one of the rights secured by the Fourteenth Amendment.

Due Process and Blasphemy Law

Perhaps the most interesting legal development through the 18th Amendment to the constitution of Pakistan was the introduction of Article 10-A, which reads: “For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.” This article exists under the unceremonious heading of ‘Right to fair trial’ but is nothing less than a revolutionary concept for a country like ours where liberty has so often been the victim of expediency, state oppression and the tyranny of the permanent majority. What it does — and, unfortunately, this is not appreciated enough by our jurists — is create within our constitution the idea of substantive due process above and beyond procedural due process that its heading seems to betray.