Right to treatment in accordance with law

--- Arts. 4, 10, 10A & 14 --- Right to treatment in accordance with law --- Safeguards against arrest and detention --- Fair trial and due process --- Dignity of man and privacy of home --- Scope --- Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 provides that the protection of law and to be treated in accordance with law is the inalienable right of every citizen; and that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken, save in accordance with law --- Article 10 of the Constitution provides safeguards as to arrest and detention of a person --- It mandates that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and shall be produced before the Magistrate within a period of 24 hours of such arrest --- According to Article 14 of the Constitution, the dignity of a man, and subject to law, privacy of home shall be inviolable --- It further mandates that no person shall be subjected to torture --- However, some of these rights are not absolute and can be subject to sub-legislation, providing a due process before a person being deprived of life, liberty, dignity or property, to make sure that the government officials must not be unfair to the people or abuse them physically or mentally --- Fair trial and due process is therefore, a fundamental right guaranteed by Article 10A of the Constitution, which mandates that laws are applied strictly, consistently and fairly.

--- Arts. 199 & 4 --- Constitutional jurisdiction --- Right to be dealt in accordance with law --- Equitable jurisdiction --- Writ of mandamus --- Scope --- A question has arisen before Federal Constitutional Court concerning the scope and exercise of the constitutional jurisdiction of the High Courts under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, particularly in relation to the exercise of its equitable jurisdiction --- High Court while exercising its constitutional jurisdiction, issued a writ of mandamus directing the University to hold a “super/supplementary examination” for the student, notwithstanding the absence of any law, rule, or regulation requiring the conduct of such an examination --- Federal Constitutional Court observed that the High Courts are not vested with the authority to exercise such powers, as every case must be adjudicated strictly in accordance with the law and not on considerations of compassion, equity or whims of a judge.

--- Preamble, Arts. 1, 4 & 175 --- Federal republic --- Principles of democracy --- Supremacy of the constitution --- Rule of law --- Independence and role of the judiciary --- Constitutional interpretation --- Scope --- Under the Constitution, Pakistan is established as a Federal republic founded upon the principles of “democracy, freedom, equality, tolerance, and social justice”, as enshrined in the Preamble and Article 1 of the Constitution, 1973 --- The framers envisioned a State governed by the rule of law, wherein the supremacy of the Constitution is recognized, upheld, and enforced --- Within this constitutional framework, the judiciary occupies an indispensable position, being entrusted with the responsibility to interpret, and apply the laws of the land in accordance with constitutional mandates.

--- Preamble, Art. 4 --- Constitutional supremacy --- Binding nature of written law --- Prevention of arbitrariness --- Role of state organs --- Scope --- The Preamble of the Constitution, 1973 declares in unambiguous terms: “We, the People of Pakistan, do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves this Constitution.” --- This solemn affirmation elevates the will of the people above all else and renders all organs and functionaries created by the Constitution, including the Executive, the Legislature, and the Judiciary, subject to it --- In essence, it is the “will of the people of Pakistan” that they have adopted a constitutional order in which law exists, etched in black and white, leaving no room for arbitrariness, and ensuring that governance and adjudication are guided by laws only.

--- Arts. 4 & 175 --- Right to be dealt in accordance with law --- Judicial impartiality --- Constitutionalism --- Judicial role and responsibility --- Scope --- When we recognize that Pakistan is a democracy founded upon the rule of law, designed to secure “freedom, equality, tolerance, and social justice”, we transition from being a nation governed by men to one governed by constitutionalism --- The people of Pakistan have consciously “adopted, enacted, and given” to themselves this constitutional order, within which judges do not function as private individuals or members of executive --- Rather, they act as impartial Justices, who interpret the law and apply it to the cases before them --- While compassion may blur the distinction between law and morality by urging a judge to act according to personal sentiment, the judicial role demands adherence to constitutional duty only --- To allow compassion to override the obligation to interpret and apply the law would amount to a retreat from our judicial responsibility.

--- Arts. 4 & 175 --- Right to be dealt in accordance with law --- Nature of judicial power --- Statutory sanction of justice --- Scope --- The courts initially operated under the Government of India Act 1935 and subsequently under the 1956 and 1962 Constitutions, remaining strictly bound by the prevailing legal and constitutional frameworks --- Throughout this constitutional evolution, the courts have acted as courts of law and not of compassion, tasked with enforcing the Constitution rather than interpreting it according to personal understanding or subjective notions --- A survey of our constitutional history, thus, reveals that at no point have the courts assumed jurisdiction to dispense compassion; instead, they have consistently worked as constitutional courts or the courts of law, deriving their mandate from the Constitution and the law dispensing only such justice as is sanctioned by law.

--- Arts. 199, 4 & 189 --- Right to be dealt in accordance with law --- Judicial discipline --- Role of precedent --- Scope --- The High Courts are themselves a creation of the Constitution, and our constitutional journey has always unfolded within the discipline of law, not within a realm governed by personal goodwill or unchecked authority --- Even in moments where the law appears to be silent, we are not allowed to substitute legal command with individual morality or compassion --- In such rare instances, should they arise, the duty of the Courts remains to seek an answer that best resonates with our constitutional order, guided by sound constitutional principles and our judicial precedents.