The rule of law project was derailed in Pakistan from the beginning with the Constituent Assembly’s failure to come up with a Constitution within a reasonable time. The three attempts at a Constitution in 1956, 1962 and 1973 were short lived and the Constitution, as it exists now, has imprints of encroachments by military dictatorships of Generals Zia-ul-Haq and Pervaiz Musharraf.
The foundational principle of rule of law is supremacy of law and the equal applicability of the law; and sadly, we have failed on both counts. The doctrine of necessity corrupted the entire system early on by setting the precedent of deviations from constitutional and legal principles in ‘exceptional’ circumstances; for the laws to be meaningful their supremacy always and in all circumstances is a precondition. The equal applicability of the law has never been attempted and the balance has been tilted in the favour of unelected judges, generals and bureaucrats. The problem with selective accountability is that it compromises all accountability. The ‘State’ itself does not feel bound by laws and this strikes at the core of a constitutional democracy and erodes the distinction between Rex Lex (The King is Law) and Lex Rex (The Law is King) principles. The rule of law is not mere efficient implementation of draconian laws. It also presupposes a law that is fair, formulated through a democratic process, and is non-discriminatory.
The foundational principle of rule of law is supremacy of law and the equal applicability of the law; and sadly, we have failed on both counts.
Our legal corpus starts with non-equal citizenship based on a conception of ‘minorities’ laid out in the Objectives Resolution – inserted as operative law by the dictatorship of General Zia.
The social contract between the people and the State has been violated so many times by the State that it has lost credibility. Writing about Israel, British historian Tony Judt had said, “ By the age of 58 a country – like a man – should have achieved a certain maturity. After nearly six decades of existence we know, for good and for bad, who we are, what we have done and how we appear to others, warts and all. We acknowledge, however reluctantly and privately, our mistakes and our shortcomings. And though we still harbour the occasional illusion about ourselves and our prospects, we are wise enough to recognise that these are indeed for the most part just that: illusions. In short, we are adults.”
After seven decades, we are no closer to being adults than we were at August 14, 1947; however history is a long game and we, the people, can start on that front now.
The writer is the Pakistan representative of the Human Rights Watch.