Fundamental Rights: Prospects of Compensatory Jurisprudence In Pakistan



Dr. Muhammad Tariq Masood Advocate High Court

LL.M. (Harvard), I.T.P. (Harvard) (Diploma in International Tax)

Former Member (Legal) Federal Board of Revenue, Pakistan

Protection of fundamental rights, which are otherwise guaranteed by the Constitution, lies not only in the separation of judiciary from the executive but in allowing necessary and wide powers to the judiciary so that it can influence, if not control, the otherwise all-powerful government and its functionaries. In a good modern democratic State it is essential that Constitution should not only ensure that courts have vast powers to provide relief to the aggrieved person but that relief should be more than a mere paper relief, meaning thereby that relief should be an adequate or sufficient remedy to do justice if not the complete justice.

In Pakistan fundamental rights always occupied a place of pride in all the three Constitutions and in almost similar pattern reaching to its zenith in the 1973 Constitution.^1^ Chapter 1 of the Part II of the 1973 Constitution catalogues the rights from Articles 9 to 28 but this list would be incomplete if we exclude Articles 4 and 8, as both these Articles provide key for the enforcement of fundamental rights. High Court of the Province is the prime protectorate of these rights^2^ whereas the Supreme Court also has the powers to help securing them.^3^

Fundamental rights can broadly be divided into positive and negative rights.^4^ Positive rights usually oblige an action, a positive duty on the State; examples of positive rights include right to education (Article 25A), protection of person and property (Articles 9 and 24 respectively) and the promotion of social justice and eradication of social evils (Article 37). Negative rights usually oblige inaction and the holder of a negative right is entitld to non-interference on the part of the State in free enjoyments of those rights.

Fundamental rights guaranteed by the Constitution in fact put restraints on the arbitrary exercise of power by the State in relation to any activity that an individual can engage into. With the passage of time and evolution of civil society, changes occur in the political, social and economic conditions of the society but the language of the Constitution remains the same, creating a need to reevaluate the essence and soul of the fundamental rights as originally provided in the Constitution. Therefore, fundamental rights are not defined and interpreted by the courts in a static or literal sense or manner; they are generic in nature and their meaning and scope keeps on changing; usually enlarging but at times even shrinking according to the changed circumstances and the freedom available to or exercised by the courts under democratic or autocratic regimes. Fundamental rights essentially require to be construed in consonance with the changed conditions of the society and to be viewed and interpreted with a vision to the future.^5^

Another expansion to the scope of fundamental rights was given when some of the Articles falling within the scope of Chapter 2 of the Part II of the 1973 Constitution defining the 'Principles of Policy' and clauses of the 'Objectives Resolution' dealing with the human rights were read together by the courts to provide lawful vehicle for interpretation, definition, refinement and enforcement of the fundamental rights enshrined in the 1973 Constitution.^6^

Courts in Pakistan have been usually liberal in adopting the widest possible meanings to rights regarding provision of health care^7^ and access to education.^8^ The words 'life" and "liberty" and anything or everything related to the enjoyment of life has been brought into the concept of fundamental rights ++(Re: Shehla Zia v. WAPDA)++ ,^9^ an extract from the judgment will show the latitude given to these words:

"The word "life" has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. "The word "life" in the Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it. Article 14 of Fundamental Right provides that the dignity of man and subject to law the privacy of home shall be inviolable; the fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to life under Article 9 and if both are read together question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity like without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment."

The process of wider application of the fundamental rights has been slow but evolutionary; it is spread over decades and it is not restricted to the executive authority but has been extended to the legislative authority and any law which violates the fundamental rights is likely to be struck down.^10^ Wider application to the meaning and scope of the fundamental rights is not restricted to Pakistan only; it is a global phenomenon, for example in Ireland^11^ courts have also adopted very broad meaning and have exercised wide powers when Constitutional rights were infringed by the State functionaries. The enlightening observations of the Chief Justice, Cearbhall D laigh., in a human rights case^12^ deserve special notice. The learned Chief Justice said:

"It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of those rights. As a necessary corollary, it follows that no one can with impunity set these rights at naught or circumvents them, and that the court's powers in this regard are as ample as the defence of the Constitution requires."

The Indian SC emphasized that while interpreting the articles related to fundamental rights the approach must be guided not by any verbal or formalistic canons of construction but by the paramount object and purpose underlying the article and its interpretation must receive illumination from the trinity of provisions which permeate and energize the entire Constitution viz. the preamble, fundamental rights and directive principles of State policy.^13^

With this expensive meaning and interpreting the fundamental rights some questions arise which need to be answered; such as whether courts in Pakistan are providing sufficient and adequate remedy or the relief provided is merely a legal victory? Is there anything missing? Can something more be done in this context? Can compensation be granted or ordered for violation of fundamental rights by the State especially for violation of rights to life, liberty and the like while exercising the Constitutional discretionary jurisdiction?

While writing on the subject, flashback from an old Pakistani movie^14^ was in my mind where the accused on his acquittal demanded back twelve years of his life spent in the prison. That dialogue from the movie thus suggesting that mere honorable acquittal was not complete or befitting remedy, especially in cases of State violation of fundamental rights to life and liberty.

An injury to person or property can of course be redressed under the civil law through personal civil suit in ordinary tort proceedings by a time consuming procedure to get an enforceable judicial pronouncement. If violation of rights is committed by the State then it becomes still more difficult to cross the hurdle of 'sovereign immunity'. In such a situation where fundamental rights are violated by the State, is it proper to force the individual to pass through that process or the courts which are the ultimate and real custodians of those rights have some additional duty to perform?

Can pecuniary compensation be awarded by the superior judiciary while exercising Constitutional jurisdiction in cases of serious and flagrant violation of fundamental rights by the State apparatus? There is apparently no express Constitutional provision for such an award and very few judicial precedents on the subject in the country. There is considerable development on the subject of compensatory jurisprudence in other countries and we can learn and follow from encouraging examples.

The rights to life, personal liberty, security and freedoms go back a long way in the history of the law and their enforcement is well entrenched jurisprudential concept but recognition of right to compensation on account of violation of right to liberty and security of person is comparatively new.

Article 5.5 of the European Convention on Human Rights^15^ provides that everyone who has been a victim of arrest or detention in contravention of the provisions of the Article 5 of the Convention shall have an enforceable right to compensation.

International Covenant on Civil and Political Rights (International Covenant) was adopted by the UNO on December 16, 1966^16^ to which Pakistan is also a signatory^17^. Different aspects of right to liberty and the security of a person are covered by the Article 9 of the Covenant, for facility of reference the said Article is reproduced as under:

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

A plain reading of the text shows that almost all aspects of rights covered by the Article 9 (except 9.5) of the International Covenant [or Article 5 (except 5.5) of the European Convention] are even otherwise guaranteed by the Articles 9, 10 and 10A of the 1973 Constitution. Pakistan signed the International Covenant with some reservations regarding Articles 3, 6, 7, 12, 13, 18, 19, 25 and 40 and almost all the reservations were to the extent of repugnancy to the 1973 Constitution or to the Sharia Laws of the country. Interestingly there was no reservation shown with respect of the Article 9 and more specifically the Article 9.5 of the International Covenant dealing with the enforceable right to compensation which manifests the intent of the State to abide by the provisions of the said Article without any reservations. However India adopted the International Covenant^18^ with reservation regarding Article 9.5 that the provisions of the Article shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of India^19^ which is parametric to the Article 10 of the 1973 Constitution.

Article 2 of the International Covenant^20^ imposes responsibilities on the States to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the Covenant and to develop the possibilities of judicial remedy. It also places specific responsibility on the State to ensure effective remedy even if the violation has been committed by persons acting in an official capacity and also to ensure that the competent authorities shall enforce such remedies when granted. Thus the basic duty of the State is to ensure that any breach of Article 9 and therefore a right to compensation as provided in Article 9.5 of the International Covenant must be provided for within the national legal system, that is, a remedy must be made available under the domestic law and enforceable in a domestic court even if the violation of the rights is committed by the State functionaries.

Articles 199 and Article 184(3) of the 1973 Constitution deal with the protection of fundamental rights; before proceeding further let's see the Constitutional provisions first: (only relevant portions):

"Article 199. Jurisdiction of High Court.

(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-



(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II."

"184. Original Jurisdiction of Supreme Court.



(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that ."

Though there is no specific provision regarding enforcing right to compensation for victims of unlawful arrest or detention even then the superior courts enjoy very wide Constitutional powers to protect the fundamental rights as the courts can issue any order and give any direction which is appropriate for the enforcement of any of the fundamental rights.

Whether absence of domestic legal or Constitutional provision for award of monetary compensation would stultify the broad and wide powers of High Courts or the Supreme Court to protect the fundamental rights or there is a need to search legal basis for awarding such compensation? Such issues have been faced by many other countries and superior judiciary has addressed them in quite elaborate manner, reference may be made to some of them as under:

The Privy Council (PC) in a case^21^ where a barrister, was committed to seven days imprisonment without fulfilling the due process of law, in contravention of section 1 of the Constitution of Trinidad and Tobago,^22^ was held to be entitled to monetary compensation from the State under section 6 of the Constitution of Trinidad and Tobago (parametric to the Article 199 of the 1973 Constitution) which does not provide for any pecuniary compensation. PC held that claim of compensation was a claim in public law for deprivation of liberty alone which was distinguished from personal claim for damages in tort in the following words:

"Finally, their Lordships would say something about the measure of monetary compensation recoverable under Section 6 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone."

In another case^23^ where Government of Guyana constructed road on a land owned by private landowners without due payments for the land; the PC accepted the claim of landowners regarding compensation for the land as well as claim of payment of damages for violation of their fundamental rights guaranteed by the Article 8 of the Constitution of Guyana and directed the High Court to redress the same by passing an appropriate order for compensation or damages which should be complied with by the Government of Guyana.

In New Zealand the SC in a case^24^ where police executed a search warrant and continued to search despite knowing that it was the wrong address and therefore the search was illegal (per Section 21 of the New Zealand Bill of Rights Act, 1990) rejected the State claim of sovereign immunity. The State pleaded that the plaintiffs were not entitled to any remedy other than a declaration of non-compliance with the Bill of Rights. The SC held that a mere declaration of violation without due compensation would be 'toothless' and therefore awarded damages.

The SC of Nepal in a case^25^ allowed monetary compensation to the victims and their families as an interim relief by applying the principles enshrined in the Convention against Enforced Disappearance despite the fact that Nepal had not ratified the same. It was held that as it was not objectionable both in law and practice therefore there was no problem in implementing the principles laid down in Convention for the sake of respecting and promoting the life, dignity and freedom of Nepal's citizens and provisions of the International Covenant on Enforced Disappearance were declared as essential element of the Nepal's legal system.

As pointed out earlier that India signed the International Covenant with some reservations regarding Article 9.5 of the Covenant and its conflict with the Article 22 of the Indian Constitution even then substantial progress, though a bit slow and gradual, has been shown by the superior judiciary. The issue was first visited by the Indian Apex Court in the case of denial of free legal assistance to an accused^26^ where the court observed that it was not helpless to grant relief to the person who has suffered such deprivation and the court felt a need to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty.

Subsequently there came a series of cases^27^ where illegal detention of mentally sick convicts, even beyond the terms of their sentences and despite their recovery from mental ailment was questioned by human rights activists. The Supreme Court of India admitted the seriousness of the issue but left the question of compensation for illegal detention open and did not decide it conclusively.

The Supreme Court of India in the case Rudul Sah^28^ took a leap forward by recognizing the concept of compensation given in Article 9.5 of the International Covenant despite the Indian reservations while ratifying the Covenant. The Indian Apex Court opined that Article 21 of the Indian Constitution which guarantees the right to life and liberty will be denuded of its significant content if the power of the court is limited to passing orders of release from illegal detention. The court held as under:

"One of the telling ways in which the violation of that right can reasonably be prevented is to mulct the violators in the payment of monetary compensation. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to their rights. In the circumstances of the instant case the refusal to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated".

In another judgment^29^ the SC of India held that it was not helpless and it had wide powers given by Article 32,^30^ which itself is a fundamental right, and imposes a Constitutional obligation on it to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution. The Apex Court held that the Indian Constitution enables the award of monetary compensation in cases where there is no other mode of redress available. The Indian Apex Court also referred to Article 142 of the Indian Constitution^31^ as an enabling provision in this behalf.

Looking back to the issue in Pakistan's perspective question may arise in the mind of the reader that whether Constitutional provisions in Pakistan are in any way less broader or restrictive in their approach as compared to the Indian parametric provisions? Let's address that question first.

There is no limitation in regard to the kind of proceeding envisaged in the Article 199 of the 1973 Constitution^32^ except that it should not be ousted or controlled by any other provisions of the Constitution itself and the High Court should be satisfied that no other adequate remedy is provided by law. Once any petitioner clears these two bars, which he usually does, then High Court can make an order or give such directions as may be 'appropriate for the enforcement of any of the fundamental rights' and this requirement of appropriateness is to be judged by the court itself and not by others. The Constitution-makers deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right. They did not stipulate that such proceedings should conform to any rigid pattern or straitjacket formula. Reference can also be made to Article 37 (d) of the 1973 Constitution which also places a responsibility upon the each organ and authority of the State to ensure inexpensive and expeditious justice. It appears that in a country where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation, any insistence on a rigid formula of proceedings for enforcement of a fundamental right, would become self-defeating and it would place enforcement of fundamental rights beyond the reach of common man. The entire remedy for enforcement of fundamental rights which the Constitution-makers regarded as so precious and invaluable that it could not be abridged would become mere illusionary so far as the large masses of the people of this country are concerned. In a modern progressive democratic country following the old doctrine of relegating the aggrieved persons to the remedies available in civil law which are costly and time consuming will undermine legitimate expectations from the judiciary. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system, which aims to protect their interests and preserve their rights.

Like the wide powers of the High Court under Article 199, the Supreme Court also enjoys broad powers as per Article 184(3). The Supreme Court has the same powers as the High Court enjoys when a question of enforcement of any of the fundamental rights is involved. The only condition for invoking Constitutional jurisdiction applicable to the Supreme Court is the existence of 'public importance', unlike the absence of availability of alternate or adequate remedy by law as applicable to the High Courts. Thus the Supreme Court of Pakistan enjoys very wide powers in case of any issue of public importance when a question of enforcement of any of the fundamental rights is involved.

Article 187 of the 1973 Constitution is similarly worded^33^, wide and equally potent to the comparable Indian Constitutional provision.^34^ Thus there is no Constitutional bar in the development of compensatory jurisprudence in Pakistan and courts in Pakistan enjoy broad and wide powers and can issue any appropriate order for the enforcement of the fundamental rights.

It is also worth mentioning that the courts are self-governing in expanding or shrinking the scope or sphere of compensatory jurisprudence so it is a blessing in disguise that there is no express legal command to make it mandatory for the courts to award compensation. Thus everything is left at the discretion of the courts which have to determine the 'appropriateness of case' and the 'appropriateness of relief'. In the Indian jurisdiction courts have restricted themselves^35^ to award compensatory relief only when infringement of the fundamental rights is gross and patent, that is, incontrovertible and ex-facie glaring. Usually courts only grant this discretionary relief when such infringement is on a large scale affecting the fundamental rights of a large number of persons but in cases where action of authorities appear to be grossly unjust or unduly harsh or oppressive on account of poverty or disability or socially or economically disadvantaged position of an individual, courts can be seen coming forward to rescue the person or persons affected by such infringement.

The Indian SC has held that right to approach the Apex Court under Article 32 is itself a fundamental right.^36^ Constitutional position in Pakistan is not different rather more pronounced as clause (2) of the Article 199 clearly stipulates that the right to move a High Court for the enforcement of any of the fundamental rights conferred by the Constitution shall not be abridged, Article 10A further adds to it as it guarantees that for the determination of civil rights and obligations or in any criminal charge the person shall be entitled to a fair trial and due process. Keeping in view the case law on the subject of broad interpretation of fundamental rights there is no doubt in my mind as to why compensatory jurisprudence can't be developed in Pakistan and right to approach the High Court under Article 199 is not regarded as fundamental right in itself and be interpreted as broadly as the fundamental rights enshrined in Chapter 1 of the Part II of the Constitution.

Whether concept of 'State immunity' or 'sovereign immunity' will be an obstacle in the way to enforce right to compensation? As already pointed out above that claim of such immunity was not accepted by the Superior Courts of New Zealand^37^ and Ireland, which also have written Constitutions and there is no express provision regarding compensation. The plea of sovereign immunity was rejected by the Apex Court of Ireland even in tortuous claim and damages/compensation was awarded [Re: Byrne v. Ireland (1972) IR 241]. The State was declared to be a juristic person who would be vicariously liable for the negligent acts of its servants committed in the course of employment. The plaintiff, therefore, succeeded in her action for damages for injuries sustained when she fell into a trench dug on the authority of the Minister for Posts and Telegraphs.

In India a judgment by Madras High Court in the Thangarajan case,^38^ appears to lay the foundation of rejection of the claim of sovereign immunity. A poor young boy was hit by a military lorry belonging to the Defence Department of the Union of India therefore principle of State immunity was pleaded which was rejected by the High Court in the following words:

"It is cruel to tell the injured boy who has suffered grievous injuries and was in hospital for over six months incurring considerable expenditure and been permanently incapacitated that he is not entitled to any relief as he had the privilege of being knocked down by a lorry which was driven in exercise of sovereign functions of the State. Considering the circumstances of this case, we would strongly recommend to the Union Government to make an ex gratia payment of Rs. 10,000, to the appellant herein."

The Indian Supreme Court also constantly rejected the claim of sovereign immunity and reference may be made to cases such as ++Rudul Sah v. State of Bihar++ (1983 AIR 1086), ++Sebastian M. Hongray v. Union of India++ (1984 AIR 571), ++Bhim Singh, MLA v. State of J&K and others++ (AIR 1986 SC 494), ++Saheli, A Women's Resources v. Commissioner of Police, Delhi++ (1990 AIR 513), ++Smt. Nilabati Behera alias Lalit v. State of Orissa and others++ (1993 AIR 1960) and ++Consumer Education and Research v. Union of India and others++ (1995 AIR 922). An extract from the case of ++Nilabati Behera++ cited supra will explain as to why plea of sovereign immunity is not approved by the courts:

"It may be mentioned straight away that award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.... it is sufficient to say that the decision of this Court in Kasturi Lal^39^ upholding the State's plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State's liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation."

Another reason given by the Indian Apex Court in the case of Consumer Education and Research (cited supra) was that the Constitutional remedy was a practical and inexpensive mode of redress therefore plea of sovereign immunity may be rejected.

It is also worth highlighting that this kind of relief would not bring a new wave of judicial activism as the courts are self-governing in expanding or shrinking the scope and sphere of compensatory jurisprudence. It is at the discretion of the courts to determine the appropriateness of case or the relief. In the Indian jurisdiction, courts have restricted themselves^40^ to award compensatory relief only when infringement of the fundamental rights is gross and patent, that is, incontrovertible and ex facie glaring. Usually courts only grant this discretionary relief when such infringement is on a large scale affecting the fundamental rights of a large number of persons. But none can stop the courts to take action and award compensation in solitary cases where action of authorities appear grossly unjust or unduly harsh or oppressive on account of poverty or disability or socially or economically disadvantaged position of an individual person.

What is happening in Pakistan?

As already pointed out that Pakistan signed and ratified the International Covenant without any reservations on Article 9 (including 9.5) requiring compensation to the victims of such human rights abuses therefore there are no formidable obstacles in implementing the International Covenant. Complying with its international obligations, Pakistan established a National Commission for Human Rights (NCHR) through the Act XVI of 2012 in accordance with the Paris Principles. In its preamble, the Act provides its raison d' tre as follows:

"WHEREAS it is expedient to provide for the creation of National Commission for Human Rights, for the purpose of promotion and protection of Human Rights as provided in the Constitution of Islamic Republic of Pakistan and various international instruments to which Pakistan is state party or shall become a state party."

The NCHR is a guardian to protect and promote human rights guaranteed in the Constitution and in the international human rights treaties. It shall always speak for the safety of the citizens being its primary duty.^41^

Thus commitment of the State for protection of fundamental rights is visibly there. The 1973 Constitution as explained in the opening paragraphs widely covers the fundamental rights and the superior courts have adopted very expensive meanings of various aspects of fundamental rights especially rights related to life, dignity, honor, health, education and freedoms, powers of the superior courts in Pakistan are broad and unrestricted; therefore there is legitimate expectation that position of protection of fundamental rights will improve and compensatory jurisprudence will evolve in near future. It has also been pointed out earlier that the Supreme Court of Pakistan has also approved the principle that absence of domestic legislation regarding any international covenant would not prevent courts in awarding the remedies provided therein while exercising the Constitutional jurisdiction; reference in this regard is made to the below mentioned extract from the judgment of the Apex Court in ++Human Rights Case++ No.29388-K of 2013:^42^

"It is pertinent to note that Pakistan has also not ratified this Convention. The Supreme Court of Nepal applied the principles of the 2006 Convention in light of the right to life guaranteed in the Interim Constitution of Nepal, 2007. Our Constitution at Article 9 lays down the right to life which has received an expansive interpretation from this Court. Moreover, Article 10 provides direct protection from enforced disappearances. Thus the crime against humanity of enforced disappearances is clearly violative of the Constitution of Pakistan. Therefore, this Court can also apply the principles enshrined in 2006 Convention in order to achieve the ends of justice."

Awarding of cost in a matter of habeas corpus is not a new concept and is permissible under section 491, Cr.P.C. and there are innumerable decisions on the subject^43^ and there are judgments which decided that compensation may be more than the one provided in that section and it may be exemplary.

High Courts on more than one occasion have allowed compensation under Constitutional jurisdiction. In the case of Muhammad Ibrahim,^44^ the Lahore High Court observed that when the dignity of a person is violated in breach of law, then it becomes duty of the court to render help and protect the same as far as possible and guided by the Constitutional provisions, the High Court awarded monetary compensation.

The High Court of Sindh had an in-depth analysis of the issue of compensation in the Constitutional jurisdiction in another case reported as Mazharuddin v. the State.^45^ The honorable court after considering provisions of Cr.P.C., Article 199 of the 1973 Constitution and cases pertaining to Pakistani, Indian, Sri Lankan and English jurisdiction held that whenever a court finds unlawful and mala fide detention of a citizen it can, apart from directing his release, pass any suitable order including an order for payment of such amount that it may consider appropriate by way of compensation. Effects need and justification of awarding compensation were also explained by declaring that compensation was not only for distress and humiliation on account of deprivation of liberty but also to serve as deterrent for those who misuse public power and invade the liberties of citizens in flagrant disregard of the law. The judgment also clarifies that jurisdiction to grant relief under Article 199(l)(b)(1) or Article 199(1)(c) is not hedged by the limitation of English precedents or provisions of sub-constitutional legislation. The court also held that an order merely directing the release of a person from custody upon finding his detention illegal and condoning the violation of his most cherished fundamental rights of liberty and dignity in defiance of the requirements of law and the Constitution may not be the appropriate relief to which such person may be entitled to and monitory compensation may be awarded under Constitutional jurisdiction as a public law duty distinguished from the private law right of a citizen to claim damages in tort. The court also held that the liability to pay such compensation would devolve jointly and severally upon the State as well as the public officials responsible for illegally depriving a citizen of his liberty. The State Government however, would be entitled to recover the amount from such officials for having caused wrongful loss to the Government through misuse of powers under the relevant Service Rules applicable to such official instead of burdening the taxpayer money. The honorable court went on to say that compensatory costs of litigation may also be awarded and the official responsible for illegal action be made personally burdened with the liability to pay exemplary or punitive costs in terms of the law declared by the honorable Supreme Court.

The aforementioned judgment comprehensively covered all the aspects of compensatory jurisprudence even then a review of cases on the subject shows that proper redressal cases are few and far between and they are mostly related to the high handedness of lower police officials without hammering out the actual flaws in the system. Highhandedness of other law enforcing agencies involved in enforced disappearances, extra-judicial killings, custodial deaths and fake encounters have mostly remained immune baring a few exceptions. Similarly cases of human rights abuses like violation of privacy, domestic servants violence and other similar kinds of violation of fundamental rights where affluent section of the society or powerful agencies are involved end up in so-called 'compromise' where everybody knows how the compromise has been reached. Cases are therefore withdrawn due to coercion or intimidation and courts remain silent spectator. When courts award sentences then come the Presidential pardon to rescue. In nutshell such violations go either unpunished or the relief is usually mere eyewash. Supreme Court has been striving in many cases of missing persons and some progress has been made but still it is far less than the expectations of the people of Pakistan especially those who are under privileged and who consider that courts are their real and ultimate saviors.

In the recent past the Islamabad High Court has set an example when it came forward to rescue the family of a person of enforced disappearance allegedly by the security agencies.^46^ It is a rare occasion when top management of police and local administration has been held responsible and ordered to pay compensation for want of proper action of their departments in investigating the enforced disappearance and proper redressal of the grievances of the victim's family. The opinion of the Court was expressed as under:

"In a nut shell the State has undoubtedly failed in its duty and obligations towards the petitioner and her three young daughters. The officials responsible to protect the citizens as appointed agents of the State are jointly and severally accountable to the petitioner and her three young daughters. The State of Pakistan as an Islamic welfare state has, therefore, made itself liable to compensate the petitioner and her three young daughters for the established acts and omissions, conduct and degrading attitude of the public functionaries which has caused unimaginable anguish and suffering to the petitioner and her three daughters, thus gravely violating the fundamental rights guaranteed to them under the Constitution. The Chief Commissioner and the Inspector General of Police, being the highest office holders in the hierarchy of administration of the Islamabad Capital Territory, are responsible for the failure of their subordinates and for the criminal justice system failing to respond to the complaint of the petitioner, because the buck stops at the top. The non-cooperative, insensitive and humiliating attitude of the agents of the State has exposed each one of them to be proceeded against".


The compensatory jurisprudence which is part of the Article 9.5 of the International Covenant and practiced and upheld by the superior judiciary of different countries by invoking powers under the Constitutional jurisdiction has gained tremendous importance in recent times. The Concept is not alien to our own jurisprudence rather it is endorsed by the superior judiciary but even then it is used sparingly and selectively. Increased incidents of forced disappearances, custodial violence and killings, highhandedness of law enforcement agencies and other human rights violation especially related to life, honor and dignity of men have also necessitated an equally quick and befitting response from the judiciary. Though award of compensation under Constitutional jurisdiction can be found in the case law but this is not consistently been demanded or granted by the courts as a deterring factor. More positive and proactive response by the superior courts may lead to reduction in human rights violation as every such award of compensation would highlight the issue more and more and make the State apparatus more answerable to the electorate and the vibrant media. It may help in reducing multiplicity of litigation and lead to speedy justice to victims of the infringement of right to life and personal liberty.

Web References:

  1. The Constitution of Islamic Republic of Pakistan, 1973


  1. The Constitution of India, 1949


  1. The Constitution of Ireland, 1937


  1. The Constitution of The Republic of Trinidad and Tobago


  1. The Constitution of the Co-operative Republic of Guyana Act


  1. The Supreme Court of Ireland- Important judgments


  1. Pakistan Film Database


  1. European Convention on Human Rights


  1. International Covenant on Civil and Political Rights


  1. New Zealand Bill of Rights Act, 1990


  1. TRIAL International- Switzerland based NGO


  1. The National Commission for Human Rights Act, 2012


  1. The Unending Saga of Enforced Disappearances- Preliminary Report by NCHR Pakistan


  1. Article 32 and the Remedy of Compensation By Justice G. Yethirajulu BSc, MA, LL. M, Ph.D Judge, High Court of Andhra Pradesh (

  2. Compensation on Breach of Fundamental Rights

By Parmindra Dadhich Ph.D. Scholar, Mody University of Science and Technology, Rajasthan

© 2020, All rights reserved.