Article 9 of the Constitution of Pakistan: The Right to Life or Substantive Due Process?

Amr Ibn Munir

 

Abstract: This article examines the due process clauses in the abrogated 1956 and 1962 Constitutions of Pakistan, and the way due process jurisprudence has established overtime under Articles 4, 9 and 10-A of the 1973 Constitution. This examination is conducted through the lens of due process doctrine in Anglo-American Constitutional jurisprudence. Focusing on the substantive due process under Article 9, the main questions addressed in this article are: How did the jurisprudence of due process evolve in Pakistan; whether Article 9 is the sole source of substantive due process in Pakistan and if so, to what extent; how the superior courts expanded the notion of right to life to include everything essential to life under the purview of Article 9; and whether the expanded interpretation of Article 9 be considered as fair and appropriate? As the superior courts in Pakistan have been expanding the right to life under Article 9 to cover many other amenities and rights on which either life depends or are considered as the essentials of life since 1990, this article argues that this concept is very similar to the precept of “liberty” being interpreted and its scope being enlarged by the American courts. Hence, it can be said that as per the jurisprudence laid down by the superior courts in Pakistan, the right to life does come under substantive due process but not to the full extent of substantive due process under the US jurisprudence.