‘RIGHT TO DIGNITY’ - A ‘SINE
QUA NON’ OF FUNDAMENTAL RIGHTS
(A
STUDY IN OUR CONSTITUTIONAL DISCOURSE)
By
CH. ISHFAQUE AHMAD
Student Ph.D. Law (IIUI)
LL.M., M.A., LL.B. (Pb.U.)
{Islamabad based Lawyer}
ibneafsar@yahoo.com
The
Constitutional history of
The term ‘dignity of man’, unlike
as mentioned under Article 11 and 14 of the Constitution of Pakistan 1973, was
missing from both early Constitutions. Nonetheless, many provisions of the
first two Constitutions depict the very purpose underlying the idea of Man’s
dignity.
The Constitution of 1956
contained detailed provisions relating to the Fundamental Rights under its Part
II, from Article 3 to Article 22. These provisions include, among others, right
to equality, prohibition against discrimination, freedom of speech, freedom of
assembly, freedom of association, freedom to acquire property, freedom to trade
and practice a profession and freedom of religious beliefs & practice thereof.
But none of the Articles had expressly provided the expression of ‘dignity’.
However, the very essence and rationale behind ‘dignity of man’ was clearly
lying under few provisions.[3]
The
Constitution of 1956 was annulled by the then president on
The
Constitution of Pakistan 1973 was passed unanimously by the Parliament and this
basic law provides ‘Fundamental Rights’ with more detail than the earlier
Constitutions. The term dignity in the latest Constitution came in two Articles[6] of Part II, Chapter
I.
Expansion
of Meaning of ‘Dignity’ in
The expression ‘dignity of
man’ was first time used in Constitutional text in 1917[7]
and thereafter in many other constitutions. Despite incorporation of the term
in many post World-War-II Constitutions of the States, the framers of both early
Constitutions of Pakistan were not much inspired by the expression and kept
themselves aloof from incorporating it into the early two constitutional drafts
but in the present Constitution it came twice. Article 11 is not totally new to
this Constitution; its terms are slightly different from those of the
corresponding articles[8] of
two earlier Constitutions. On the other
hand, Article 14 was first time introduced in the Constitution of Pakistan
1973.
Article 14 contains two clauses. The first
clause declares ‘dignity of man’ to be inviolable, the second clause makes
privacy of home inviolable but this part is subject to law whereas the first
clause is not. Dignity of man is an absolute right, an unqualified guarantee
and is not subject to law[9].
Therefore, if any law violates dignity of man it is liable to be declared
unconstitutional. It goes without saying that if any right is not included in
Chapter II of the Constitution of Pakistan 1973; it means it is left for the
ordinary legislation to protect it[10].
Since Article 11 provides protection against manual labour
by women, which is too common in
In The higher judiciary,
while interpreting a constitutional provision, made wonderful deliberations in
numerous cases[12] on the
touch stone of ‘dignity of man’ or ‘human dignity’ under different heads. For
instance in a case[13]
before the Apex Court of Pakistan it was observed that to preserve and protect
dignity of man under Article 14 of Constitution was unparalleled and could be
found only in few Constitutions of the world. ‘Dignity of man’ and ‘privacy of
home’ are given under one Article for both are inter-related. Since inviolability
of privacy of home is directly linked with dignity so it should be kept safe
from illegal intrusions and invasions[14].
For the same reasons tapping of telephonic communication was held to have been
a flagrant violation to the constitutional guarantee[15].
Degraded life of citizens and adversely affected quality of health are
considered as amounting to deprivation of life[16].
Even the extreme impoverishment does not mean that since a poor man has lost
his dignity so he deserves to be put behind bars for he was unable to buy his
freedom by paying money[17].
On the same lines Pollution was also declared a form of snow poisoning[18]
for human life. Right to life is not a mere right to keep the relation of body
and soul intact but a right to a meaningful life as right to live with dignity[19]including
all facilities and amenities[20],
right to education[21],
clean atmosphere and unpolluted environment[22]
and right of legitimacy of birth[23].
Man deserves to be treated justly, with honour and
respect, even though he is a criminal[24].
Police raid was declared by Lahore High Court as destroying the honour and dignity of family and parent even it was
conducted by the bailiff of the Court[25].
On the touchstone of dignity few sort of agreements are held, by the higher Courts,
universally unacceptable such as contract of child labour[26],
forced labour[27],
bonded labour[28]
or slavery. Similarly, begging was held equally violative
to the dignity of man[29].
‘Dignity of man’ demands that no one should be subjected to torture and
humiliation by the law enforcing agencies like police[30].
It is also against one’s dignity if his movement is restricted unjustly[31]
or if one’s freedom of expression is barred or curtailed[32].
Rape as a form of torture is not an offense causing only physical injury but a
crime against the dignity as well[33].
Inhuman grave punishments[34]
like whipping, solitary confinement, public hanging[35]
and extra judicial killing[36]
are all violation to the fundamental right of dignity of man. Not only this but
all such provisions of the Pakistan Penal Code 1860 were declared ultra-vires which provide imprisonment in lieu of not submitting
amount of fine due to poverty[37].
For, more or less, the same reasons recently Clause XVII (i)
of the Punjab Contract Appointment Policy 2004 was declared by a Court unconstitutional
and offensive to right to dignity[38]. Sometimes, ignoring merit and eligibility
criteria for any vacancy causes adverse impacts on the right to dignity of a
man[39].
Defamatory statements constitute an assault on one’s dignity[40].
This is the backdrop in which dignity and respect are given more importance
than physical comfort[41].
Higher judiciary of
CONCLUSION
Today, right to dignity is denied in many
ways and forms. Firstly, unequal distribution of wealth and resources,
generally in all over the world and particularly in the third world countries,
has created gulfs among different classes, which is the major reason for unrest
between haves and have-nots. Financially affluent people buy others’ skills and
services by their wealth at their own choices against their own determined
remunerations. Secondly, pollution, whether of air, water or other nuisances,
which brought environmental changes, is fatal to the life of man; it causes
many diseases and deteriorates the health of people. In other words,
environmental changes deprive man of right to life. Thirdly,
unequal access to opportunities and the prevailing atmosphere wherein only a
man with better sources and well relations excels. Cronyism and nepotism
are the criteria to get a job, favour from public
offices and sometimes justice as well rather competency, merit and fitness.
Fourthly, unpopular tyrant form of government as
In
The
concluding caveat is that more work and thinking need to be done in order to
refine the implementation of the very concept of dignity of man in the pursuit
of Rule of Law. Firstly, there should be a representative, stable, responsible
and responsive government in
It may be hoped that in
future, the expression ‘Dignity of Man’,
enshrined in our Constitution and other laws, would be put into practice not
only in letter but also in spirit and the people of Pakistan would be given the
‘protection of law’ in a dignified manner.
[1]. Maulvi Tamizuddin Khan vs.
Federation of
[2]. Federation of
[3]. Article
16 which prohibits slavery and forced labour reads as
(1)
No person shall be held in slavery.
(2)
All forms of force labour are prohibited, but the state may require compulsory
service for public purposes.
ii.
Article 20 Abolition of untouchability is abolished,
and its practice in any form is forbidden and shall be declared by law to be an
offence.
[4]. In The State vs.
Dosso and 3 others PLD 1958 SC 533, it was held that
a victorious revolution or a successful Coup d’état is an internationally
recognized legal method of changing a Constitution. After the change of the
character has taken place, the national legal order must for its validity
depend upon the new law-creating organ.
[5]. Pirzada, Syed Sharifuddin, “Fundamental
Rights and Constitutional Remedies in Pakistan” published by All Pakistan Legal
Decisions, Naba Road Lahore (1966), page 69
[6]. Article 11- Slavery, Forced Labour etc.
prohibited
(Proviso)-
Provided that no compulsory service shall be of a cruel nature or incompatible
with human dignity.
Article 14- Inviolability of dignity of man
etc.
(1)-
The dignity of man and, subject to law, the privacy of home, shall be
inviolable.
[7]. First time
appeared in the Constitution of Mexico
[8]. Article 16 and
Article 3 of the Constitution of 1956 and Constitution of 1962 respectively
[9]. Karim, Fazal, ‘Judicial Review of
Public Actions’, Volume 1, published by Pakistan Law House, page 662
[10]. Munir, Muhammad, ‘Constitution of the Islamic Republic of
Pakistan’ a commentary of Constitution, Edition 1975, by Law publishing
company, page 121.
[11]. Criminal Law
Amendment (Protection of women) Act, 2006,
The Prevention
of Anti-Women Practices (Criminal Law Amendment) Act 2011, The Acid Control and Acid Crime
Prevention Act 2010 and The Protection Against Harassment Of Women At
The Workplace Act 2010.
[12]. For
instance in the cases of Miss Benazir Bhutto v. Federation of Pakistan and
another (PLD 1988 SC 416 at page 490), Haji Nizam Khan. v. Additional District Judge, Lyallpur
and others (PLD 1976 Lahore 930 at page 979), Mst. Fazal Jan v. Roshan Din and 2
others (PLD 1990 SC 661), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993
SC 473 at page 557), Zohra and 5 others v. The
Government of Sindh, Health Department through its
Secretary, Sindh Secretariat, Karachi and another
(PLD 1996 Karachi 1), The Employees of the Pakistan Law Commission, Islamabad
v. Ministry of Works and 2 others (1994 SCMR 1548), Sharaf
Faridi and 3 others v. The Federation of Islamic
Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989
Karachi 404 at page 442), Mumtaz Ali Bhutto and
another v° The Deputy Martial Law Administrator, Sector 1, Karachi and 2 others
(PLD 1979 Karachi 307 at page 357), Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26 at page 53), In re: Juvenile Jail, Landhi, Karachi (Suo motu notice) (1990 PCr.LJ 1231)
and Sh. Liaquat Hussain and
others v. Federation of Pakistan through Ministry of Law, Justice and
Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504).
[13]. Nazim ,
[14]. Benazir Bhutto vs.
President of
[15]. Tariq Rahim vs. Federation of
[16]. Syed Mansoor Ali Shah vs.
Government of
[17]. PLD 2002
[18]. Muhammad Yousaf and others vs. Province of the Punjab 2003 CLC 576
[19]. Benazir Bhutto vs.
President of Pakistan, PLD 1998 Supreme Court 388, Arshad
Mehmood vs. Government of Punjab, PLD 2005 Supreme
Court 193, Imdad Hussain
vs. Province of Sindh, PLD 2007 Karachi 116, Watan Party versus Federation of Pakistan 2012 PLD 292 SC.
[20]. Ms. Shehla Zia and others vs. WAPDA PLD 1994 SC 693,
[21]. See Imdad Hussain vs.
[22]. Nazim, U.C. Allah Bachayo Shore
vs. The State 2004 YLR 2077, Syed Mansoor
Ali Shah and others vs. Government of Punjab , 2007 CLD 533
[23]. Muhammad
Iqbal vs. Master Muhammad Maqbool
and others. 2003 YLR 154
[24]. In re: Suo Motu Constitutional Petition,
1994 SCMR 1028
[25]. Muhammad Javed Sagar versus SHO 2011 PCrLJ 674 Lahore, Irfan Ahmad
versus SHO 2011 PCrLJ 597 Lahore
[26]. Ghulam Hussain vs. Messrs. East
Pakistan Enterprise Karachi Ltd. 1987 PLC 574, Muhammad Asim
and others vs. Telecommunication and others 1997 PLC (C.S.) 1131, Husnain Raza alias Jani and another vs. The state (FSC) 2004 P. Cr. L J 426
[27]. Darshan Masih alias Rehmatay and Others vs. The State PLD 1990 SC 513 and 1989
SCMR 139
[28]. Muhammad Siddique vs. Masha and others,
PLD 1997
[29]. Muhammad Yamin Khan vs. Government of
[30]. Rana Muhammad Afzal vs. Home
Secretary, Government of
[31]. Higher Education
Commission versus Sajid Anwar 2012 SCMR 186
[32]. Mohtarima Benazir Bhutto vs. Federation of Pakistan 2010
PLD 229 FSC
[33]. Tariq Pervaiz vs. The
State 2001 P Cr. L J 767
[34]. The
[35]. 1994 SCMR 1028
[36]. Motarama Benazir Bhutto vs. President of
[37]. PLD 2002
[38]. Samina Kanwal verses Director Punjab Forestry Research Institute,
Faisalabad 2011 PLC 1553
[39]. Muhammad Yasin versus Federation of Pakistan 2012 PLD 132 SC
[40]. Miss Sadia Sumble Butt vs. Rafiq Afghan and others, 2006 MLD (kar)
1462
[41]. Mst. Kaniz Fatima vs. Farooq Tariq, PLD 2002
[42]. Government
N.W.F.P. through chief secretary vs. Dr. Hussain
Ahmad Haroon and others. 2003 SCMR 104
[43]. Liaqat Ali vs. Arshad Mahmood Lodhi (Advocate) 1996 CLC 1562. See also Roidad Khan vs. Mutabbar Khan
Advocate, 2004 MLD 140,
[44]. Liaquat Ali Ghanghro vs.
[45]. Muhammad Afaq vs. the State, 2001 SCMR 374, 2012 PLC 394 SC,
Federation of Pakisatan vs. Mian
Muhammad Nawaz Sharif 2009 PLD 284 SC, Abdul Hameed Dogar, Former Judge/CJP
2011 PLD 315 SC
[46].
[47]. Federation of