Pakistan: Has Fragile Rule Of Law Brought Country To Brink Of Abysmal Danger? – OpEd


What Does Rule of Law Mean?

Rule of Law means that all entities, including the government, must adhere to the supremacy of the law. The rule of law is a political ideal that all citizens and institutions within a country, state, or community are abide by and accountable to the same laws including lawmakers and leaders. Further rule of law also requires the mechanism, process, institution, practice, or norms that support the equality of all citizens before the law irrespective of their status or stature.

The rule of law is a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: 1) accountability, 2) just law, 3) open government, and 4) accessible and impartial justice. In general, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated so that no one—including the most highly placed official—is above the law.

The Rule of Law is also closely linked with the ideals of democracy. A democratic state under the Rule of Law is a state where citizens elect their leaders, and the government itself is bound by the law, while also helping to ensure that the law is respected among the citizens of the state. Democracy cannot exist without the Rule of Law and its effective implementation.

I think the UN, has defined the rule of law in a very comprehensive manner. According to the UN, the rule of law is “a principle of governance in which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency”.

The United Nations has also prioritized the Rule of Law in Sustainable Development Goal 16 (SDG16): Peace, Justice, and Strong Institutions. Specifically, SDG16 emphasizes that the Rule of Law plays a key role in promoting “peaceful, just, and inclusive societies and . . . ensuring sustainable development.”  One of the SDG16 targets is to promote the rule of law at both national and international levels to ensure equal access to justice for all.

Basic Principles of The Rule of Law.

Given the above definitions, the rule of law comprises at least eight distinct but related principles. The first principle is the essence of the rule of law dating back to Aristotle: The rule of law is a “government by laws and not by men”, which means no one is above the law and all persons and institutions, including the state, are subordinate and accountable to the law.

Second, the law must be publicly formulated and promulgated so that people know and own the consequences of their actions according to the law. 

Third, the law must be properly defined, and government discretion should be limited to ensure the law is applied in a non-arbitrary manner without “giving people in positions of power” wide, arbitrary, or discretionary powers.

Fourth, the law must be applied equally and without discrimination to all persons in the country. 

The fifth principle embodies a substantive rather than a procedural guarantee of the rule of law and provides that the laws in a society that honors the rule of law must be just and consistent with international human rights norms and standards.

Sixth, legal processes must be sufficiently valid, impartial, and accessible to ensure the enforcement of such laws and human rights protections across the board.

Seventh, the independence of the judiciary must be guaranteed. This means judicial power must be exercised independently of other branches of the state, and individual judges must adjudicate matters before them impartially.

Eighth, last but not least, inclusiveness of laws means all citizens and other members of society must have the right to participate in the process of enactment and refinement of laws that regulate their behavior in the society and country.

Where Does Pakistan Stand in this Matrix?

The 76 years of our chequered and highly controversial political, economic social, and particularly judicial history have fallen apart the country. Therefore, we as a nation are far behind in the index of rule of law in the comity of nations. These principles — and consequently, ‘the rule of law’ — are largely absent in Pakistan. Instead, the garb of the rule of law is being used to establish its very antithesis — ‘rule by law’.

According to the World Justice Project, Pakistan ranks 130th out of 142 countries worldwide. Regionally, Pakistan ranks 5th out of 6 countries in South Asia. The region’s top performer is Nepal (ranked 71st out of 142 globally), followed by Sri Lanka and India. The three countries with the lowest scores in the region are Bangladesh, Pakistan, and Afghanistan (140th globally).

Pakistan is a judicial jungle, thick with laws, and inhabited by lawyers and judges but Justice lies hidden somewhere in the undergrowth. The rule of law is for the poor and powerless and the powerful are scared free. The saying of Robert Bolt’s Tudor draws the true picture of Pakistan as he said, “planted thick with laws”. In Pakistan, they provide no shade of justice. To which system of laws then should the public turn? To the law of the jungle? Pakistan is facing such a situation.

Another philosopher, Aristotle rightly called “justice” the virtue of virtues as judges are expected to do justice without fear or favor, affection or ill will. Unfortunately, in our case, the higher judiciary has failed to dispense justice due to the tyranny of the powerful, as the judges of the Islamabad High Court seek justice for themselves. 

In this regard, Oliver Goldsmith, an Irish novelist, playwright, and poet of the 18th century, rightly wrote in his book ‘The Traveler’, “Laws grind the poor and rich men rule the law”. In power corridors, justice is lost at the demise of truth while the poor suffer at the hands of the law. 

The Honore de Balzac quote depicts the real state of the rule of law in our country, he has said that the “Laws are spider webs through which the big flies pass and the little ones get caught”. The same has been happening in the country since the beginning.

How to Get Out of this Quagmire?

The sufferings of Pakistan’s poor and less privileged classes will not end unless elitist structures are dismantled, and the society is restructured on the principles of the rule of law based on equity, fairness, and justice for all. The problem of Pakistan is not the scarcity of resources, but the absence of the rule of law which has resulted in unequal distribution of resources as well as incompetence in exploring and managing them, lack of an effective judiciary, and socio-economic injustice. Pakistan needs true-face democracy with the rule of law across the board throughout the country. The multiple challenges faced by the country cannot be dealt with by a distorted political order.

The dream of a unified nation, as envisaged in 1940, has been marred by internal strife and political upheaval and above all disobedience to all principles of the rule of law. Similarly, the existence of the Lahore Resolution, a fervent commitment to the principles of democracy, social justice, and communal harmony has been diluted in the quagmire of partisan politics, sectarian divisions, and economic disparities.

The Pakistani state is currently under the firm control of the security apparatus which functions as a ‘kingmaker’, controlling virtually all aspects of governance from behind the scenes. The message for Pakistan is clear: do course correction or face the consequences. What should we do now? The simple answer is that this country cannot run on a recipe we have used for decades. It has to change and change quickly. The first thing this country needs is a clear break from the past and respect for the rule of law.

In this regard, the ruling elite must take responsibility for reducing their power and promoting greater equality and prosperity for all Pakistanis. Failure to address wealth inequality risks the country’s economic and social stability and can lead to further unrest and conflict. Therefore, policymakers must act and work towards creating a more just equitable, and laws-abiding society in Pakistan.

We have experienced in the past that mere cosmetic changes to the system won’t address Pakistan’s dysfunction. Fresh ideas and a new direction need to replace the abundance of unrealistic rhetoric. The brutal cycle that promotes inequality and precludes development and investment in the citizens of the country, must end.

Our leaders, whether in the civil or the military, and whether in the legislature, executive, or judiciary, need to be reminded that the country besides facing internal challenges, is also confronted by serious external threats to its security and well-being. Our success in overcoming these challenges requires, above all, national unity and cohesive functioning of the different institutions of the state be it the legislature, the executive, or the judiciary. Institutional clashes must be avoided at any cost. Every institution of the state must operate within its constitutional limits and adhere to the rule of law.

At this juncture, the nation needs a new social contract to modify or rewrite the existing 1973 constitution, a document provided by the ‘people’ to the legislators to ensure that they understand the limits of their power and remain confined within stipulated parameters. Unfortunately, this currently existing document has failed to protect human rights and individual freedom, liberty, and security of life, and property including itself from the tyranny of the undemocratic forces in the country.

In Pakistan, democracy has quickly become the tyranny of the majority and the new social contract must address this matter. The proportional representation must be included based on ethnicity, profession, and social order. Religion must be separated from state business. It should be an individual choice and not a communal business. 

Seventy-five years down the road of independence we have failed to construct a politically mature polity, establish the rule of law or constitutional sovereignty, and achieve economic stability. My conclusion is that what Pakistan needs is a legitimate political authority that can redirect our national institutions toward the establishment of the rule of law and the welfare of the masses. My humble argument presented through this article is not to provide a perfect solution to the problem highlighted here but to draw the attention of the country’s leadership —both civil and military— including the intelligentsia, constitutional experts, and legal brains towards one of the primary yet ignored causes of the failure of democracy, economy judiciary, and above all, the absence of the rule of law in the country.

Sher Khan Bazai

Sher Khan Bazai is a retired civil servant, and a former Secretary of Education in Balochistan, Pakistan. He can be reached at [email protected].

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