Drift from due process of law

The recent knee-jerk reaction to the speech and tweets of Senator Azam Swati and his subsequent arrests by the Balochistan and Sindh Police speak of a drift from due process of law. The FIA had already arrested the senator under the cyber crime law on the same charges. At the same time, registration of multiple FIRs on the same charges at different locations has made a mockery of justice.

According to reports, having been sent on judicial remand by the District and Sessions Judge Islamabad, Senator Swati was immediately transferred to Kuchlak by Balochistan police, despite his daughter Farah Swati insisting that he suffered “chest pain” and “breathing issues” on Thursday night; and that he was shifted to the Pakistan Institute of Medical Sciences to be discharged “before his lab results came back” and was taken into custody by Quetta police.

All kudos to the Balochistan High Court for upholding the rule of law and protecting fundamental rights by quashing all FIRs filed against Mr Swati. But, disgustingly, the Sindh Police, disregarding the spirit of the BHC’s decision, whisked him away in a special plane to Larkana on the same charges.

The Sindh High Court too restrained the Sindh Police from arresting Swati in more cases. During the hearing, the high-ups of the Sindh Police had also to take the court’s ire for deviation from due process of law. Although many of the police officers, referring to the dignity of human being as a fundamental right, considered the admonishment improper, the Sindh Police would have earned greater respect by not succumbing to the temptation to register multiple FIRs and by avoiding the arrest of the senator after the BHC’s judgement. They must acknowledge that registration of multiple FIRs was clearly incorrect, and that depriving a citizen of his liberty was also a violation of constitutional norms.

It is not out of place to mention here that before being shifted to Balochistan, the senator filed a writ in the Islamabad High Court, praying for a restraining order until a decision and consolidation and transfer of the cases registered against him in Sindh and Balochistan to Islamabad. Responding to the question from the court, the AAG stated that the Centre could maintain “coordination” with the province over police-related policies, but “the federal government has no authority to give directions to the provincial government”. However, the arguments of Babar Awan, Swati’s counsel, holds good that all human rights issues were “policy matters” and therefore the Centre could obtain such information from the provinces.

The Constitutions always specify the principles by which the state confers rights upon its citizens. There are certain absolute rights, and those rights are always protected by the Constitution. In a society where the rule of law prevails, people are assured that their fundamental rights are protected.

Article 4 of the Constitution envisages that every person in the country is entitled to the protection of the law and should be dealt with in accordance with the law. The rationale behind Article 4 is that acts of the state are not immune from scrutiny, and even the legislature cannot enact any law when a particular person or class will be immune from scrutiny. Article 4 is, in fact, a modified form of “due process of law” as interpreted by the American Constitutional Courts. The intent and purport of this article are to guard the rights of the citizens and ensure that they shall not be invaded, except by law. However, citizen detention by government agencies without due process of law is not prioritised, so violations continue and citizens are deprived of their liberty.

Fundamentally, due process is an integral part of our jurisprudence. This has further been augmented with the insertion of Article 10-A, and its application cannot be overridden by any legislation or executive instrument. Thus, any law, custom or usage having the force of law or an act of the executive as per Article 8 of the Constitution that is not consistent with Article 10-A and the principles of due process would be void and struck down by the courts exercising constitutional jurisdiction.

Due process, ingrained in the Constitution of Pakistan, has been further explained in the judgments of the superior courts as having a substantive dimension as well. The due process clause has been interpreted as protecting substantive individual rights, some of which are manifest in the Constitution. As due process is a substantive part, it allows the Apex Court to protect certain fundamental rights from government interference under the authority of the due process clauses, which prohibit the federal and provincial governments from depriving anyone of “life, liberty, or property without due process of law”.

Simultaneously, Article 9, which is enshrined in the Constitution to protect the right to life, can be used liberally in both substantive and procedural contexts. With vigorous use of this article, the substantive rights of all citizens and non-citizens can be protected in an environment promoting openness and transparency on all levels, putting an end to arbitrary government.

Under 184 (3), the Supreme Court of Pakistan is also bound to invoke its jurisdiction whenever a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II is involved. In the aforementioned case, it was not only a question of public importance but also the enforcement of fundamental rights.

When viewed against the backdrop of multiple FIRs being filed on the same charges against the same person and his subsequent arrest, it is a violation of due process and an infringement of fundamental right. No civilised society can ever conceive of such a premeditated, blatant violation of due process, depriving a citizen of his liberty and access to justice. Now is the time for the Apex Court to once for all settle this thorny issue impinging upon the fundamental rights of the citizens. This drift from the due process must be stopped to ensure good governance.

Published in The Express Tribune, December 21^st, 2022.

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