BILL OF RIGHTS AND BEYOND*

BILL OF RIGHTS AND BEYOND* <!--[if gte mso 10]> BILL OF RIGHTS AND BEYOND* By Mr. Justice Dr. Nasim Hasan Shah, Judge, Supreme Court of Pakistan * Speech delivered at the Seminar co-sponsored by the Pakistan National Centre and the American Centre, Islamabad on 13th December, 1990. How can the liberty of a citizen be reconciled with the authority of the State has been a problem throughout the ages. To start with the struggle for liberty was against arbitrary power and unjust laws. Since political power was concentrated in the King or in an oligarchy, the masses therefore struggled to secure self-government and self-rule. But when this goal was reached it began to be realised that self-rule was not, in effect, a rule by the whole people but only by a majority, sometimes quite slender which may have ideas different from those of a large body of the same people. It also appeared that the rule of the majority did not necessarily conduce to fairplay and justice. The majority, wittingly or unwittingly, may make serious encroachments on the legitimate freedom of the individual, particularly on the freedom of those who differ from them. Hence, a new struggle began to establish certain concepts which were deemed basic or fundamental and to ensure that interference should not be possible in those fundamental concepts even by the legislature. Accordingly, such basic concepts have been formulated and incorporated in the Constitutions of many States and described as Fundamental Rights. Their purpose principally is to bind the administration by certain declarations of individual rights which neither the legislature nor the executive may contravene. The essential characteristic of such fundamental rights is that they impose limitations, express or implied, on public authorities, legislative, executive and judicial and prohibit them from interfering with their exercise. As no better guarantee against executive and legislative tyranny exists, particularly where the democratic tradition is not well established in the body-politic of a country, than the incorporation of fundamental rights in the Constitution, hence the necessity of a Bill of Rights. "The very purpose of a Bill of Rights", says Mr. Justice Jackson in West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624, at p. 638, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One's right to life, liberty, and property, to free speech and a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections". BILL OF RIGHTS IN THE U.S. CONSTITUTION Thomas Jefferson, who was most unhappy at the non-inclusion of the Bill of Rights in the Constitution of the United States as drawn in 1787 at Philadelphia maintained his efforts for their inclusion and wrote to Madison that "a bill of rights is what the people are entitled to against every Government on earth, general or particular, and what no just Government should refuse". Adding that "the inconveniences of the declaration are, that it may cramp Government in its useful exertions. But the evil of this is shortlived, moderate and reparable. The inconveniences of the want of a declaration are permanent, afflictive and irreparable. They are in constant progression from bad to worse. The Executive in our Government, is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the Legislature is the most formidable dread at present, and will be for many years". Jefferson's powerful advocacy eventually led to the adoption of the first ten (10) amendments--the bill of Rights--whereby the "inalienable rights" spoken of in the Declaration of Independence: of "Life, Liberty and pursuit of happiness" which the founding fathers considered to be the goal of civilised government. These amendments were ultimately ratified by the requisite number of States in December, 1791 - some 199 years from today and thus became a full-fledged part of the U.S. Constitution. RIGHTS OF MAN The contemporary counterpart of the Federal Bill of Rights was the Declaration of the Rights of Man voted by the National Assembly at the beginning of the French Revolution. The two fundamental documents illustrate the crucial difference between American and French constitutional thinking. The French Declaration lays down not practical rules, but only general principles deemed fundamental to man and hence universally applicable. Madison had also included some general principles in his proposed amendments, but they were eliminated during the congressional debates. What was left in the ten amendments ratified was the appropriate wording to afford specific protection for the basic rights of free expression and association, the rights to privacy and due process, and freedom from arbitrary restraint and trial and cruel and unusual punishments. The provisions protecting them were set forth as legal rules, enforceable as such (as Madison had specifically recognised) by the Courts. There is nothing like this in the French Declaration, drafted only in the hortatory terms of the general rights mankind ought to have. The French document does not contain mandatory inhibitions that must be respected by the agents of government; nor does it descend to the level of practical enforcement through specific provision for the basic rights of criminal defendants and others dealing with law enforcement officials. They proclaim ideals and do not enact law. ACCOMPLISHMENTS OF THE BILL OF RIGHTS Coming to the principal accomplishments of the Bill of Rights if one were to summarise their achievements in a single phrase, that phrase would be "an open society". The procedural guarantees assure that when the government brings its ultimate power, the criminal process, to bear on an individual, he is entitled to an open trial, to be represented by counsel, to summon and cross-examine witnesses, and to be tried before an impartial Judge and jury. If he is imprisoned in violation of the Bill of Rights, he is entitled to petition for his release by means of habeas corpus, known as the "freedom writ". The open society is open not only in procedure but in political participation. The principle "one person, one vote", derived from the equal protection guarantee, means that there may be no arbitrary or irrelevant exclusion from the suffrage, no exclusion on grounds of race or colour, gender, or wealth. Still more fundamental in the open society is participation in the political process through freedom of expression and criticism of the Government. The Pentagon Papers case, in 1971, in which the Government tried unsuccessfully to prevent the publication of documents relating to the Vietnam conflict, is a striking example of the latitude enjoyed by the Press and the public to expose facts that are uncomfortable to the government of the day. WELFARE STATE But the question that is being raised today is that even if self-expression and moral self-fulfilment are the primary goals of human beings, can those be achieved without a material basis that permits an individual to make realistic choices? In short, does not that respect for human dignity require at least a modicum of material welfare? It is really more important to be able to read three newspapers than to be sure of three meals a day? Can a necessitous person truly be said to be a free person? Thus today it has become necessary to think beyond the Bill of Rights. It will be recalled that when the Constitution and the Bill of Rights were written, government was only an arbiter, allowing the individual to go unrestrained except at extreme limits of conduct. In the almost two centuries that followed, the system has gradually shifted to one in which government had a positive duty to promote the welfare of the community, even at the cost of individual rights. From a constitutional, as well as from a political point of view, the welfare state has become an established fact. In the welfare State, however, the emphasis inevitably shifts from liberty to equality. Accordingly, the economic burdens incident to life must increasingly be borne by the society to ensure the individual at least the minimum requirement of a decent human life and the society assumes a new distributive role. Its laws must likewise follow in this new path. Constitutional justifications for the assumption of this new task depend primarily upon the Equal Protection Clause of the Fourteenth Amendment. Undoubtedly, for the better part of the century the Equal Protection Clause in the Fourteenth Amendment which was adopted in 1868 was narrowly construed to mean equality of opportunity in the market place. The security of acquired interests was emphasised, even, if need be, at the expense of the interests of the community. It was not until well into this century that this situation was called into question. EQUALITY -- MEANING OF Now, a view of equality is emerging that goes far beyond any previous notion of equality before the law. The classical distinction used to be between egalite de droit and egalite de fait - between formal or legal equality and practical or factual equality. Until the present day, the primary aim of reformers was the achievement of the first, since once that was established, the second (in so far as was desirable) would, it was thought, establish itself. Now the law is starting to consider this approach too narrow. The end of law is seen to be provision in fact of equality with regard to more and more of the elements that make life meaningful in the contemporary community. The law is beginning to recognise as a claim the right in fact to conditions comparable to those enjoyed by the majority. The postulate that men might assume that a standard human life be assured them may give way to a broader assumption that they are entitled to equal conditions of life as compared with their follows. PRINCIPLE OF REDRESS It may now be fairly said that the contemporary thrust for equality is the demand that equality of opportunity should really imply equality of result. This issue has become a central value problem of the present day society. This conception of justice may be called the principle of redress. This is the principle that underserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are to be somehow compensated for. Under the redress principle society must treat more favourably those with fewer native assets and those born into less favourable social positions. The notion tends towards a block view of life rather than an individual one. PAKISTAN APPROACH The Pakistan Supreme Court is also adopting the new approach by taking an "interpretative approach" to the fundamental rights, incorporated in our Constitution. In a landmark decision in Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 419-- wherein I had the privilege to participate--Article 184 of the Constitution, which confers power on the Supreme Court to enforce fundamental rights, was interpreted very broadly in the interest of promotion of socio-economic justice. I am tempted here to quote, I am afraid, a somewhat long extract from this judgment. Herein, we found that Article 184(3) of the Constitution was "open ended" in that the said Article did not' say as to who shall have the right to move the Supreme Court nor did it say by what proceedings the Supreme Court may be so moved or whether it was confined to the enforcement of the Fundamental Rights of an individual which were infracted or extended to the enforcement of the rights of a group or a class of persons whose rights were violated and we went on to observe "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 "aggrieved person" is implicit in Article 184(3) because the traditional litigation 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 only the person wronged can initiate proceedings of a judicial nature for redress against the wrong-doer. This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to give protection to all citizens. Therefore, while construing Article 184(3), the interpretative approach should not merely be the 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 all those provisions which saturate and invigorate the 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. CREATION OF AN EGALITARIAN SOCIETY In this milieu, the adversary procedure, where a person wronged is the main actor, if it is rigidly followed, 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 recognised 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 value incorporated therein, one of which is social solidarity i.e. national integration and social cohesion by creating an egalitarian 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 is to implement the principles of social and economic justice enshrined in the Principles of Policy within the framework of Fundamental Rights. Chapters I and 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 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 absolute 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. In the achievement of this ideal law 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 egalitarian 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 frame-work 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. LIBERTIES -- SCOPE OF The liberties, in this context, if purposefully defined, will serve to guarantee genuine freedom; 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 1961 in 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". SOCIAL JUSTICE IN ISLAM Reference has been made in the above extract to "Social Justice according to Islam". Needless to say that Islam brought a powerful message of justice, freedom and social equality to mankind. Adrian Hamilton writing in the "Observer" of London, while commenting on the recent sweeping victory of the Islamic Parties, in the Algerian municipal elections said, "the fact that the Algerians should overthrow 40 years of centrally-planned socialism, not for a McDonald's but for the veil, goes against the grain of right wing comprehension. The reason for the revival of fundamentalism in Algeria, or anywhere else, has nothing to do with a reversion to medieval barbarism and holy wars. It proposes an answer, as it did in the original revolution against the Shah of Iran, to the problems of urban poverty, to the corruption and social divisions of over-controlled economies and over-contracted imports, and to the cultural assault of Western values and tastes." WHAT BILL OF RIGHTS MEANS TODAY Reverting back to the Bill of Rights drawn up in 1789 and brought into effect in 1791, I would say in the end that the Bill of Rights as a document contains the same words Madison and his colleagues put down in 1789. But that is far from true of the meaning the law now reads into those words. We live in the midst of a dynamic, even explosive, change in the interpretation of constitutional rights - a change catalyzed by the contemporary thrust for equality. The Bill of Rights as living law is plainly in a state of flux. Concepts and principles that not too long ago appeared unduly radical have become accepted rules of constitutional law. All that can be stated with assurance is that we are going through a tremendous evolutionary development, destined still to produce changes in vindication of constitutional rights as profound as those it will bring about in the society at large. ***