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IN every civilised legal society, where the right to due process is recognised, it is taken for granted that criminal laws — which prohibit certain behaviours and risk restricting the liberty of citizens if violated — are going to be very clearly articulated and well defined. This is because liberty is an innate right belonging to all persons, and thus any law that restricts or threatens the liberty of an individual must be carefully crafted and worded so that it might not unfairly restrict this inalienable right.
It was this concern that gave birth to one of the most time-honoured, celebrated and well-known constitutional law doctrines of modern legal thought: the ‘void for vagueness’ doctrine. Under this doctrine, any law that imposes a criminal liability on a person for any speech or action cannot be vaguely worded: every criminal law must be clearly worded and distinctive in its meaning, application, enforcement, prosecution and punishment.
A law criminalising certain speech or action cannot be imprecise.
Courts all over the world follow this doctrine to ensure that four very important principles are enforced, which are inseparable from the idea of the rule of law: (i) ordinary persons must not have to guess as to what conduct is legal and what is illegal so that they may clearly know and avoid illegal behaviour; (ii) judges, police and state officials should not be given an opportunity to abuse the policing powers of the state through whimsical, arbitrary or discriminatory enforcement; (iii) ordinary persons are not inhibited from lawful activity or the exercise of their constitutional rights due to the fear that they could be violating the law; and (iv) sloppy laws, which leave policymaking to the police, government agencies or judges rather than the elected law-making body, should be discouraged.
In Pakistan, this rule was recognised in the majority opinion of the Supreme Court in Zaheerudin v. State (1993 SCMR 1718): “There may be no dispute about the proposition that if a law … particularly, criminal, is vague, uncertain or broad, it must be struck down as a void law … In order to succeed … [it must be shown that the] constituents of the offence, as given in the law are so indefinite that line between innocent and condemned conduct cannot be drawn or there are attendant dangers of arbitrary and discriminatory enforcement or that it is so vague on the face of it that common man must necessarily guess at its meaning and differ as to its application.”
This doctrine was finally used by the apex court to strike down Section 7A of the Anti-Terrorism Act of 1997 in Jamaat-i-Islami v. Federation of Pakistan. It was held then that as per Article 4 of the Constitution, the right to due process is protected for all persons and no citizen of Pakistan can be prohibited from doing something that is not illegal or can be compelled to do something the law does not require them to do; thus vague laws, especially criminal offences, are antithetical to our constitutional credos.
Sadly, despite this, the judiciary has been unable to enforce the Constitution and has continued to allow many vague criminal laws — which provide little to no reasonable precision to an ordinary citizen to understand what conduct is prohibited and what is allowed — to remain in force, leaving us at the mercy of state functionaries and their capricious and whimsical moods.
An example is the Anti-Terrorism Act, 1997, itself. While striking down one section back in 2000, the honourable Supreme Court appeared to have disregarded many other problematic clauses that never distinguished what conduct falls under ‘terrorism’ and what falls under our ordinary criminal law.
After almost two decades of divergent interpretations by different high courts and amendments in the text by parliament, in 2019, the Supreme Court finally ended the debate and defined which elements are necessary for an offence to fall under the Anti-Terrorism Act. However, even then, the apex court noted that Section 6 was still problematic in the last paragraph of its judgement: “… the definition of ‘terrorism’ contained in Section 6 of the Anti-Terrorism Act, 1997 as it stands at present is too wide…”
Our judiciary needs to stop tip-toeing around this issue and spending so many years trying to interpret such problematic criminal laws that draw blurry lines between innocent legal conduct and criminal behaviour. Why should it be the job of the courts to draw those lines for the legislature?
Laws, especially those imposing criminal liabilities, should be certain and clear. If they are not, they have no place on the statute book and should immediately be struck down. It is the only way that parliament will learn to be precise when drafting legislation to ensure that the invaluable right of liberty in Pakistan shall remain protected.
The writer is a human rights lawyer working in Islamabad.
Published in Dawn, March 23rd, 2020
