Whither rule of law?

Its absence makes a society intolerant and unjust

Legally, the rule of law requires ‘the government to exercise its authority under the law’.This requirement is sometimes explained with the phrase ‘no one is above the law’. The rule of law requires the government to exercise its power in accordance with the well-established and clearly written rules, regulations, and legal principles. It may be specifically defined as, “A legal principle of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. It is called a ‘rule’ because in doubtful or unforeseen circumstances it is a guide or norm for their decision. The rule of law, sometimes called the supremacy of law, provides that decisions should be made by the application of known principles or laws, without the intervention of discretion in their application.” (Black’s Law Dictionary Pg 1332: 1891-1991)

Pakistan is facing its greatest challenge in the face of growing domestic insecurity. Militancy and terrorism has mushroomed. This in turn is having a negative cascading impact on the economy. The lives of citizens of Pakistan are no longer secure. The culprits are hardly, if ever, nabbed. Rule of law is sacrificed at the altar of appeasement, failure to formulate cogent policies or simply inefficiency. Democratic nations ensure the rule of law. It is the states that hold democracy dear who must implement it. Lip service to democratic norms while ignoring the on ground implementation of rule of law simply cannot continue indefinitely.

In a country where provision of electricity is becoming a luxury, theft of the same has become an accepted practice. Scams by the dozen are unearthed and lost in the fold of time. No one knows, in many cases, what became (if at all) of those who were party to a crime.

If there has to be a rule of law, the laws must be clearly defined and the implementation must be ensured. Having legislation alone is simply not enough. The people at the helm of the organisations that determine implementation must not be political appointees. Merit and relevancy to area of work must be ensured. Rule of law presupposes the existence of certain requisites, in absence of which a claim to existence of rule of law becomes a sham.

First: Laws must be clear and unambiguous. There must be awareness of the existing laws among the masses. Unfortunately, Pakistan has a low literacy rate; therefore, not many are aware of existing laws and the rights that accrue to them under given situations. Illiteracy also leads to acts that are in conflict with the laws of the land. For example, in 2012, on orders of the Supreme Court, a fact-finding mission was sent to Kohistan. It was alleged that five women were killed on orders of a jirga ‘for the ‘crime’ of singing and dancing at a wedding in the alleged company of men’. (Published June 7, 2012) An interesting point is raised by SIHRG (a group that has interest in all areas of South Asia), “The Federal Sharia Court in particular effectively creates a parallel Islamic jurisdiction. It has the power to review laws for their compatibility with Islam. It is also a quasi-legislative body: it can pass judgments requiring Parliament to make changes to the law and if Parliament fails to do so within a given period, the FSC’s judgment acquires the force of law.”(Title: Rule of Law in Pakistan)

Second: The law must apply to all equally. No one must be seen to be above the law. Not only this does not happen on ground as the very rich and powerful may be awarded leniency which the underprivileged may not get, gender bias also exists which makes the equal application of law a dream. According to a paper by Justice (retd) Fakhrunisa Khokhar, “The rule of law must be applied equally to all persons so as to ensure that all individuals enjoy equal rights irrespective of race, colour, creed or sex. Justice means equality of all persons in their legal and human rights.” Article 25 of the Constitution of Pakistan 1973 also safeguards the right:

25        Equality of citizens.

(1)        All citizens are equal before law and are entitled to equal protection of law.

(2)        There shall be no discrimination on the basis of sex.

(3)        Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

Third: The fundamental rights of the citizens of Pakistan must be protected at all costs. Covering many aspects, they are listed in the constitution in about 20 articles from article 8 to 28. They provide protection from a lack of justice or when the justice is delayed, allow people to practice their religions and manage religious institutions, safeguard property, provide a right to basic education, protection from discrimination in respect of access to public places, so on and so forth. If they were not listed in the constitution, there would be hatred between different religions and different sects within a religion leading to unlawful acts like open clashes, murders and kidnappings. The constitution also precludes religious affiliations by listing only citizens, which means every individual holding a Pakistani citizenship.

Fourth: There must be accountability at the public service level. All individuals who hold a public chair must be held accountable. Here the Article 184(3), under which the Supreme Court exercises suo motu powers in the matters of public interest, comes into play. One definition of suo motu says, “In law, suas ponte or suo motu describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties.” The word literally means “on its own motion”. If ministers and other highly placed public officials are deemed to be above the law, the law shall become a farce.

Fifth: Every citizen must be awarded justice swiftly for any grievance and without exorbitant cost involved. Citizens must know that they have a legal recourse to a grievance. For this it is important that justice must not only be done but also seen to be done. This famous principle of jurisprudence was laid down in a benchmark case R v Sussex Justices [1924]: ‘Not only must the justice be done, it must also be seen to be done.”

Pakistan has become a hotbed for sectarianism, militant outfits and extremism. They have become a threat to the peace loving citizens of Pakistan. From Benazir Bhutto to Salmaan Taseer, the target killing has now spread to anchorpersons.

Dale Carpenter, an American legal commentator, says in Flagrant Conduct: The Story of Lawrence v. Texas, “If citizens cannot trust that laws will be enforced in an evenhanded and honest fashion, they cannot be said to live under the rule of law. Instead, they live under the rule of men corrupted by the law.”