NationalVOLUME 15 ISSUE # 08

Pakistan and the rule of law

No sate can survive without the rule of law. No nation and society can be formed without it. It is a binding force, which helps in regulating the system of a country, society and nation. In fact, it is considered as the very foundation on which the entire edifice of a country and society stands. Without it, there is no peace, unity and progress; everything is bound to collapse and scatter. Unfortunately, there is no rule of law in Pakistan, which is the root cause of all its social, political and economic problems.

What is the rule of law? It simply means that law should be one for everybody. But, being a legal and philosophical concept, great thinkers, jurists and writers have defined it differently. Aristotle, who is considered the father of natural law, says a just law enables individuals to fulfil themselves in society. Natural law theorists, like Thomas Aquinas, Thomas Hobbs, Lon L. Fuller and Devlin, believe a law is unjust if it is not based on morality, justice and human goodness or God’s will. So, in the views of naturalists, when a state forms and implements good laws, then it follows the rule of law. There are also Positivists like John Austin, Jeremy Bentham, H.L.A Hart and Hans Kelsen, who believe that ethics and morality should be separated from the law. In their eyes, social facts should determine law, not moral and religious views. Then, there is Marxist theorists who do not regard law as “an autonomous phenomenon”. Karl Marx considers law as a tool that the ruling elite (Bourgeoisie) uses to control the poor people (Proletariat).

In the UK, the rule of law developed from the writings of Dicey (1885) in the 19th century. Other political philosophers, like Joseph Raz (1979), Lord Bingham and John Griffiths, have also given their views on the importance of the rule of law. Dicey’s three points, “no one should be punished except through the courts, no one is above the law and the constitution is pervaded by the rule of law”, are still very influential in the UK legal system. In Joseph Raz’s philosophy, “the rule of law works where laws are general, open, clear, stable and not biased; where judiciary is independent and courts are accessible. While, Lord Bingham’s eight points – the law must be accessible, clear and predictable; questions of legal right and liability should be decided by application of the law; the law of the land should apply equally to all, except when objective difference requires differentiation; public officials should exercise their powers in good faith, and not exceed their powers; the law must protect fundamental rights; a method should be provided, at reasonable cost, to resolve civil disputes; adjudicative procedures must be provided by the state and should be fair and the rule of law requires the state to comply with its obligations in international law”- are indispensable for understanding and implementing the rule of law. The UK’s Constitution, which is uncodified, is based on three principles – separation of powers (derived from the French philosopher Montesquieu’s teachings), parliament sovereignty and the rule of law.

Pakistan is also following the parliamentary form of democracy, but it is devoid of the rule of law principle, which is very unfortunate and sad. The Constitution of Pakistan is based on the separation of power, supremacy of the parliament and the rule of law, which get their strength and inspiration from the Objective Resolution, enshrined as a preamble in the Constitution. The Constitution bestows fundamental rights, like providing basic needs, health facilities, education, security, justice, freedom of expression etc. on the people of Pakistan. But, in reality, the state is giving nothing to the people. It is not protecting the rights of the poor people. The state is just serving the elite ruling; it is protecting the partisan interests of the ruling elite; it is serving only a few thousand members of the ruling class while ignoring around 22 hundred million people, who are living like slaves and servants in the country. In short, the entire system is serving the ruling elite, which is a bitter truth and tragic reality. The latest example of the system’s support to the rulers is Nawaz Sharif’s bail and his exit from the country.

Former Prime Minister Nawaz Sharif, a convicted criminal, has been set free to spend his time in the UK comfortably on the pretext of illness and human rights. The system, including the government, judiciary and others, has written a new history by facilitating and allowing Nawaz Sharif to go abroad for treatment. Maryam Nawaz and Shahbaz Sharif are already on bail, enjoying their freedom and playing the game of politics. Former President Asif Ali Zardari, ex-PM Shahid Khaqan Abbasi, Hamaza Shahbaz, Saad Rafique etc are symbolically in jail, where they are enjoying all sorts of facilities and comforts. There is every possibility that, after a few days, Asif Ali Zardai will also be set free.

There is not an iota of doubt that all these people are corrupt who have ruthlessly plundered the resources of the country and its people. But, the system is protecting them. And, nobody can challenge the system. Those, who challenge, are bound to suffer.

To pacify the anger of the poor, helpless and ignorant people, Prime Minister Imran Khan has put the blame on the judiciary for Nawaz Sharif’s bail and exit from the country. He used, once again, religion to deceive and fool the people by announcing that “he is only afraid of Allaha and akhrat (life after death).” He, once again, promised to make Pakistan Riasta-e-Madina. Unfortunately, Imran Khan selected downright corrupt people in his government and cabinet to run the country.

After Imran Khan’s criticism of the judiciary for showing “a disparity in the judicial system’s treatment of the elite and the rest of the citizenry”, Chief Justice Asif Saeed Khosa said it was the government itself that had allowed the former prime minister to go abroad. With the statement, the CJP has exposed the real face of Imran Khan and his government. But, it is also a fact that the judiciary of Pakistan has a very bad record, which cannot be effaced from the annals of history.

The judgment in the Maulvi Tamizuddin Khan case gave birth to the “doctrine of necessity” which is being used to give legal protection to illegal acts of undemocratic governments and politicians. The death sentence to Zulfikar Ali Bhutto is another stain on the judiciary. Many judges, like Chief Justice Muhammad Munir, Justice Malik Mohammad Qayyum, and now judge Arshad Malik etc. have damaged the sanctity of the institution by protecting the powerful elite and indulging in unethical practices. Some months ago, PML-N leader Maryam Nawaz, a member of the “Sicilian mafia”, also threatened to expose more sitting judges through videos if Nawaz Sharif and other family members were not given an NRO. Now, Nawaz Sharif is out of the country. Shahbaz Sharif and Maryam are on bail. But, the government and the judiciary are not terming it an NRO or a deal. On the other hand, hundreds of innocent poor people, along with criminals, are languishing in jails.

The Baldia Town carnage in Karachi, in which more than 250 innocent people including women and children, were burnt alive by the MQM, the Model Town carnage by the Punjab police under the PML-N government and now the Sahiwal tragedy in the PTI government are some tragic examples which are still waiting for justice.

No doubt, the judiciary has also given some landmark verdicts like the acquittal of Aasia Bibi and the Faizabad dharna judgment, but it is a fact that the entire system, including the judiciary, parliament, executive and the media are only serving and protecting the ruling elite in Pakistan. Unfortunately, there is no hope that the rule of law will prevail in the country in the near future.