“Be you ever so high, the law is above you” – Lord Denning
Lord Denning’s observation goes to the heart of constitutional government. Constitutions establish institutions and place limits on them. Government is created to exercise power, however, the constitution requires that the exercise of power must always be subjected to law.
Most constitutional questions, however are complex, and come back to a familiar point: where does lawful authority end? The real issue is whether that power has been exercised within the limits the Constitution sets.
As in the constitutions of other countries, Pakistan's Constitution addresses that question from several perspectives. Some provisions concern individual rights, while others govern the relationship between the state's institutions. Collectively, they constitute a simple constitutional proposition: exercise of public power must rest on legal authority.
Article 4 guarantees every citizen the protection of the law and the right to be treated in accordance with the law. Article 25 builds further on the same foundation and guarantees equality before the law and equal protection under the law. If people in materially similar circumstances are treated differently without lawful reason, the Constitution has been breached.
These constitutional guarantees shape the relationship between the citizen and the state. Businesses invest, and entrepreneurs take commercial risks on the assumption that the law will be applied fairly and consistently. That assumption is shaken – and public faith in the legal system begins to erode – when governments change the rules without legal authority or choose to enforce them selectively.
Article 199 of the Constitution provides the means for the execution of these constitutional guarantees. Pursuant to the power of judicial review under Article 199, the High Courts are empowered to ensure that public authorities act within the ambit of the law. Unbeknownst to many, most citizens’ experiences with the Constitution occur in everyday dealings with the state, such as during a tax assessment or a regulatory approval. It is in these ordinary encounters that constitutional rights either become meaningful or remain words on paper.
The enduring constitutional question is simple: By what authority does the state act?
Pakistan's constitutional history offers many examples. Governments have, at different times, restricted peaceful assembly, imposed censorship, and dissolved elected assemblies on disputed constitutional grounds. Those actions have repeatedly come before the courts, where judges have had to decide whether executive power was exercised in accordance with law or simply as a matter of official discretion.
The same issue arises in commercial life. Businesses commonly rely on government policies, only to see them withdrawn or changed. They have also met unexpected regulatory changes and executive actions beyond statutory authority. Governments have the power to regulate, but the Constitution requires that those powers be exercised within the limits of the law and in a transparent manner.
That said, governments cannot be expected to keep policy unchanged forever. Conditions change. But the real difficulty arises where citizens have already ordered their affairs in reliance on official assurances. For example, a business may have invested considerable capital or assumed long-term obligations because it took the government at its word. The question is whether the state can later ignore the expectations that its own representations have created.
That concern lies at the heart of two internationally recognized constitutional principles: doctrines of promissory estoppel and legitimate expectation. Neither doctrine prevents government from changing course, but both require public authorities to have good reason for doing so and to act fairly in the process.
The issue assumes particular significance in the field of foreign investment. Like governments elsewhere, the Government of Pakistan often announces incentives to attract overseas capital, and investors make long-term decisions on the strength of those commitments. If those incentives are later withdrawn without adequate justification, the consequences raise a fundamental question of constitutional fairness.
In Pakistan's energy sector, these concerns have become particularly evident. Investors rely on the expectation that government commitments and regulatory decisions will remain stable unless there is a clear legal basis for change. When agreements are revised without transparent justification, confidence in the regulatory framework can weaken investor certainty and erode public trust.
Notably, this principle goes beyond commercial matters and disputes. It equally pertains to issues relating to the exercise of police powers or restrictions on movement or expression. In other words, the constitutional question remains the same: what legal authority justifies the exercise of that power? Arbitrary government begins where lawful authority and procedural fairness end.
Suitable guardrails exist under the Constitution that provide remedies whenever public authorities step outside the limits set by law. Article 199 empowers the High Courts to ensure that public officials perform their legal duties and exercise only the powers conferred upon them by the law. Judicial review is thus the practical means for giving real meaning to the Constitution's guarantees.
The doctrines of promissory estoppel and legitimate expectation also have their limits. Governments must have enough room to respond to changing circumstances, and the courts have consistently recognized that. That said, "public interest" cannot become a convenient justification for walking away from earlier commitments. It is a constitutional consideration, not a licence to act without legal justification.
For most Pakistanis, encounters with the Constitution are through ordinary dealings with the state, for example, in relation to license applications, disputed tax demands, or regulatory approvals for a business. Citizens are entitled to expect that public authorities will act in accordance with the law rather than private preferences.
Ultimately, the real measure of Pakistan's Constitution – like that of any other country's Constitution – is whether it can endure crises. Pakistan’s Constitution has survived political upheavals, constitutional breakdowns, and repeated tests. But its central promise has remained unchanged: public power is never beyond judicial review. So long as that promise remains, every citizen has the right to ask a simple but enduring question: by what authority does the state act, and for what lawful purpose? The Constitution exists to ensure that those who exercise public power are always ready to answer for their actions.