It is a simple truism that a stable, prosperous, democratic and egalitarian state does not exist and survive without implementing and following the rule of law. The term “rule of law” comes from the French word “le principe de legalite” meaning “the principle of legality”.
According to Black’s Law Dictionary, “the rule of law, also known as “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”. For the rule of law to function properly, there must be transparency in the law, equality under the law, an independent judiciary and access to legal remedy.
The rule of law assures that the legal system—from the creation of laws through their implementation and ultimately to the court process—is fair, easily accessible, and effective. It addresses issues like fairness in the application of the law, governmental accountability, limitations on the exercise of arbitrary power, impartial and independent dispute resolution, protection of fundamental human rights, democratic involvement in the drafting of laws, ensuring separation of powers and a more general culture of lawfulness and corruption-free social, economic and political activities.
Being a philosophical and legal concept, writers, philosophers and jurists, belonging to different ages, civilizations and countries, have described the concept of the rule of law in a variety of ways. “The law is reason without passion and is thus preferable to any individual,” writes Aristotle in his book Politics.
In the UK, the concept of the rule of law developed from the writings of Professor A.V. Dicey, Joseph Raz and Lord Bingham. The International Commission of Jurists in 1959 declared that respect for the “supreme value of human personality” should be the goal of all laws.
These historically developed concepts have now become part of almost all the constitutions of civilised nations. The rule of law is also the cornerstone of the 1973 Constitution of Pakistan. Articles 4 and 5 uphold the concept of the rule of law that is embedded in the doctrine of specified powers. While Articles 8 – 28 protect the fundamental rights of an individual. But practically, Pakistan lacks the rule of law as the law is not equal, clear, accessible, predictable and above powerful people. Even supreme court judge and former Islamabad High Court (IHC) Chief Justice Athar Minallah has categorically declared that “there’s no rule of law here, but the rule of the elite”.
The ruling elite, including politicians, feudal lords, pirs, businessmen, and the civil-judicial – military bureaucracy, does not want to establish the rule of law in the country as it would decrease their power and rule. Rather, laws are made and used to save the ruling elite’s corruption and exploitation in Pakistan. Recently, the PDM government has changed the NAB laws to protect their members’ corruption. The acquittal of Maryam Nawaz, Safdar Awan, Shahbaz Sharif, Hamza Sharif, Asif Ali Zardari in the NAB and FIA cases, Nawaz Sharif’s bail and exit from the country after being convicted and the acquittal of Shahrukh Jatoi in the murder case using the Diyat law endorse the fact that laws are made to protect and serve the corrupt ruling elite.
The Diyat law, introduced in Pakistan’s legal system around 32 years ago on the order of the Shariat Appellate Bench of the Supreme Court of Pakistan, is being continuously exploited by the powerful people. Using this flawed law, influential people like an American CIA agent killer Raymond Davis, Qandeel Baloch’s killer brother, Nazim Jokhio’s murderers, including the Pakistan People’s Party (PPP) MPA Jam Awais and MNA Jam Karim, and now Shahrukh Jatoi have all been set free. Balochistan MPA Majeed Achakzai has also been set free on the plea of settlement ‘per tribal traditions.’
Military dictators Zia-ul-Haq and Pervaiz Musharif abrogated and suspended the 1973 Constitution. Sadly, the judiciary was used to protect their illegal actions. Many judges, like Chief Justice Muhammad Munir, Justice Malik Mohammad Qayyum, and Judge Arshad Malik etc. have tarnished the image of the judiciary. The World Justice Project, in its 2021 Rule of Law Index, ranks Pakistan 130th out of 139 countries.
The Justice Project Pakistan has catalogued thousands of reported cases of torture in custody. Recently, Senator Azam Swati, Shahbaz Gill and journalist Jameel Farooqi have allegedly faced custodial tribulations and sexual abuse. The Torture and Custodial Death Bill, 2022, has criminalised custodial torture. In spite of this law, the perpetrators are still free. The Punjab police committed the Model Town carnage in 2014 and Sahiwal tragedy in 2019 but no action has been taken against the culprits.
The victims of both tragedies are still waiting for justice. Even, former prime minister Imran Khan, who survived an assassination attempt, could not register a FIR against influential political and military figures.
There are also some other serious flaws in the legal system. More than 2 million court cases are pending. Only 10% of criminal cases result in convictions due to corruption and weak evidence presented by law enforcement agencies. Many case examples can be given of delayed justice in Pakistan’s judicial system. In a 100-year-old property inheritance case, the Supreme Court announced its verdict in January 2018. In another case, the Supreme Court overturned the convictions of the Ghulam brothers in October 2016, but two brothers, Ghulam Sarwar and Ghulam Qadir were already hanged in 2015.
Shockingly, the law is also used to allow some of the most draconian acts occurring in various parts of the country, including Balochistan and Khyber-Pakhtunkhwa. In these areas, human rights violations can be covered under the Frontier Crimes Regulations of 1901 (applicable in former FATA) or the 2011 Actions (in Aid of Civil Powers) Regulations. The KP Action (in Aid of Civil Powers) Ordinance, 2019, permits the use of internment centres in K-P that deny the right to a fair trial under the pretext of exceptional circumstances.
The Constitution can be used to support this law because Article 245 (1) specifies that the armed forces can be deployed to support civil power if the federal government thinks it necessary. The decision is unchallengeable in front of any court. Moreover, Pakistani laws are not easily understandable. They are still written in colonial English and have complex language structures.
The state not only needs reforms in the Pakistani Penal Code, Criminal Procedure Code, Evidence Act, and Diyat Law but also requires full implementation of the existing laws if it wants to establish the rule of law for economic prosperity, political stability and social cohesion.
The writer is a former staff member who lives in the UK and a member of Lincoln’s Inn. He can be reached at [email protected]