Missing from Pakistani jurisprudence
The word ‘dignity’, in regular diction, means being worthy of honour or respect. In legal jargon, however, it holds a more wholesome connotation, spanning the width and breadth of the human rights spectrum. It denotes that every individual – irrespective of caste, creed, colour, religion, gender or material belongings – is entitled to the full measure and protection of law, which guarantees life, liberty, equality and the affording of basic socio-economic amenities necessary for the fulfilment of a purposeful living.
Human dignity is enshrined as a fundamental right in several constitutional democracies, including Pakistan (Article 14 of the Constitution). And while some countries have developed a progressive doctrine of human dignity as a shield for the protection of human rights, Pakistani courts have yet to cultivate a coherent body of jurisprudence on the subject. And in the meantime, a significant fraction of human rights abuses are either being ignored or being dealt with under narrow provisions of law that peg fundamental rights within restrictive statutory contours.
The right to dignity is an integral part of the vocabulary of comparative constitutionalism, and serves as a Leitmotiv of all human rights. In particular, the German courts in the post World War II period have adopted human dignity as a fundamental constitutional value. Not only is it a fundamental right in the Basic Law of Germany (Article 1(1)), the German constitution specifically declares that this right is unamendable, even by the legislature (Article 79(3)). Similarly, South Africa, in its post-apartheid jurisprudence, has adopted the idea of dignity as the foundational value in enforcing fundamental and socio-economic rights.
Several international treaties also view human dignity as a founding value underlying the spectrum of human rights. The Universal Declaration of Human Rights (1948), in Article 1, declares, “all human beings are born free and equal in dignity and rights.” The Convention on the Elimination of All Forms of Discrimination Against Women (1979) recalls in its preface, “discrimination against women violates the principles of equality of rights and respect for human dignity”.
Human dignity cannot, however, be viewed as a standalone right. It is an overarching ideal that informs the entire rights discourse – in defining the meaning of the rights to life and liberty, in the context of procedural guarantees, in the right not to be subjected to cruel or unusual punishment, torture, rights of prisoners and legitimacy of death-penalty. And in this regard dignity serves as an objective legal norm that guides the interpretation of ordinary law. For instance, the state’s obligation to protect the life of the unborn is derived from the objective dimension of the constitutional guarantees of life and dignity.
Human dignity, thus, is part and parcel of a shared constitutional vocabulary that cuts across national boundaries. Still, however, despite the agreement on abstract notions of the inviolability of the dignity and worth of the human person, disagreement lurks in the background over the scope and meaning of dignity, its philosophical foundations, and its capacity to constrain judicial decision-making. Alongside the conviction that consideration of human dignity is inherent to the interpretation of human rights, exists the opposite view – that a dignity-based jurisprudence undermines principled decision-making, because it allows judges to resort to (subjective) values rather than (objective) rules.
In Pakistan, where Article 14 of the Constitution specifically guarantees that “dignity of man and, subject to law, the privacy of home, shall be inviolable”, the judiciary seems to have fallen into this trap of not assigning a larger ethos to the right of dignity, since the development of such jurisprudence could lead to a compromise on the enforcement of objective (sometimes arbitrary) statutory laws. As a result, despite a specific provision of the Constitution, no coherent doctrine of human dignity has emerged in our jurisprudence. Only a handful of cases involving alleged torture, invasion of privacy and right to life have invoked Article 14 in the discourse. However, an entire spectrum of issues faced by the courts – including missing persons, acid victims, illegal arrests, trampling of religious freedoms, availability electricity and gas, public housing and free education – all of whom touch upon the cords of human dignity, have not involved any discussion of Article 14.
It is time we break these shackles and embrace the idea of human dignity as an overriding concept in our human rights discourse. Only in this way, through emphasizing the dignity and respect of each human being, can we aspire to rid many of the social and legal plagues that rot the fabric of our nation. It is time that our honourable courts become open to the idea of interpreting Article 14 in a new and broader light that puts human worth at the centre of the fundamental rights debate, allowing the law to transcend its letter and fulfil its spirit.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]
Dear Saad Rasool… the credit goes to you for writing on Article 14 of the constitution, highlighting the dignity of the humanity and seeking the attention of courts…
i think you saad rasool are really sexyyyy 😉
Hiya ,
Mr saad rasool i want to know if some one do any illegal thing against anyone means any illegal activity on face book against anyone in pakistan has any law against that
please must tell me i really need ur answer
Regards ,
Henna
Very important issue raised and well-discussed.
Wish I could see more articles from the author.
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