Pakistan and modern concept of rule of law Essay
Pakistan and modern concept of rule of law
Aristotle said more than two thousand years ago, “The rule of law is better than that of any individual.” The notion of the “rule of law” stems from many traditions and continents and is intertwined with the evolution of the history of law itself. The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law. Core principles of holding government authority to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including in Confucianism.
In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In continental Europe notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism. Rule of law is classical principle of administrative law. As a matter of fact this principle was one of the principles that acted as impediment in development of Administrative Law principles. The irony further is that the rule of law is now an important part of modern Administrative Law. Whereas the rule of law is still the one of the very important principles regulating in common law countries and common law derived countries modern laws has denied some of the important parts of rule of law as proposed by Dicey at the start of 19th Century.
DICEY’s RULE OF LAW:
As mentioned above the concept of rule of law backs to the time of Aristotle. Aristotle ruled out the concept of rule under discretion by all means and tried to convey his followers that given the choice it is always rule of law that scores over rule of discretion. Though Sir Edward Coke was the originator of this concept, but Dicey developed this theory. Now it is popularly known as Dicey’s theory of Rule of Law. It is also known as the Traditional concept of rule of law.
According to Dicey, this doctrine has three meanings:
i) Supremacy of Law
ii) Equality before law
iii) Predominance of legal spirit
SUPREMACY OF LAW:
Rule of law in this sense means the absolute supremacy of regular law as opposed to the influence of arbitrary power or wide discretionary power. Dicey says, Wherever there is discretion, there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects.
EQUALITY BEFORE LAW:
Dicey states that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. According to him, there should not be any extra-ordinary tribunals or special courts for officers of the Government and other authorities.
PREDOMINANCE OF LEGAL SPIRIT:
Dicey emphasized the role of the courts of law as guarantors of liberty & suggested that the rights would be more secured if they were enforceable in the courts of law than by mere declaration of those rights in a document. Dicey’s theory of rule of law was never accepted fully even in his days. Many scholars criticized his theory.
He was firm proponent of the concept and very influential thinker of his times. Though the first two principles are still in almost every legal system of world, the third principle was protested many of jurists of that time. The Dicey in particular opposed the principle of French system of Droit Administratiff. England at that time was in fact propounding some quasi legislative and quasi judicial processes which were taken cognizance of English thinkers of that time; still the whole common law system of country was blindfolded with the Dicey’s philosophy of “rule of law.”
MODERN CONCEPT OF RULE OF LAW
Recent attempts to formalize its meaning have drawn on this rich history of diverse understandings. The modern conception of the rule of law has developed as a concept distinct from the “rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Long before the United Nations, States were working towards a rule of justice in international life with a view to establishing an international community based on law. SEVEN MODERN PRINCIPLE MEANING OF RULE OF LAW
Davis gives seven principal meanings of the term Rule of Law which is known as Modern concept of Rule of Law. These are as follows: i) Maintenance of Law & order.
ii) Existence of fixed rules
iii) Elimination of discretion where it is not necessary
iv) Following due process of law or fairness
v) Observance of the principles of natural justice
vi) Preference for Judges and ordinary courts of law to executive authorities & administrative tribunals
vii) Judicial review of administrative actions.
MODERN RULE OF LAW DEFINED IN INTERNATIONAL DOCUMENTS.
Today, the concept of the rule of law is embedded in the
Charter of the United Nations.
In its Preamble, one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. A primary purpose of the Organization is “to maintain international peace and security… and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The Universal Declaration of Human Rights of 1948,
the historic international recognition that all human beings have fundamental rights and freedoms, recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”
FOR THE UN, THE SECRETARY-GENERAL DEFINES
the rule of law as “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, as well, measures to ensure adherence to the principles of supremacy of 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 principle of the rule of law applies at the national and international levels.
At the national level, the UN supports a rule of law framework that includes a Constitution or its equivalent, as the highest law of the land; a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. At the international level, the principle of the rule of law embedded in the Charter of the United Nations encompasses elements relevant to the conduct of State to State relations. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations: recognizes the inherent link between the UN and the international rule of law.
Its preamble emphasizes“the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.”Drawn from existing commitments in international law, the core values and principles of the UN include respect for the Charter and international law; respect for the sovereign equality of States and the principle of non-use or threat of use of force; the fulfillment in good faith of international obligations; the need to resolve disputes by peaceful means; respect for and protection of human rights and fundamental freedoms; recognition that protection from genocide, crimes against humanity, ethnic cleansing and war crimes is not only a responsibility owed by a State to its population, but a responsibility of the international community, the equal rights and self-determination of peoples; and the recognition that peace and security, development, human rights, the rule of law and democracy are interlinked and mutually reinforcing. Appropriate rules of international law apply to the Organization as they do to States. RULE OF LAW IN DEVELOPING SOCIETY LIKE PAKISTAN:
IN developing societies, the rule of law is often slaughtered at the altar of discretion and personal whims. However, governance, peace, investment and development are interlinked with the extent of the rule of law in a society.Where the rule of law exists the government and its functionaries are accountable. Due care is exercised to ensure that no single organ of the state becomes omnipotent. Mere legislation alone is not enough. Public consent strengthens the rule of law. Laws not synchronized with social and cultural values result in low acceptance. Awareness regarding the law not only empowers but also improves enforcement. In the developing world, the public tends to narrowly interpret the rule of law. In Pakistan, evidence abounds of how the law is bent or broken, with society suffering as a consequence.
Misappropriation of public money, sale of spurious medicines, issuance of fake degrees, non-payment of taxes and loans are but a few examples of lawlessness in Pakistan. In a democratic society the rule of law reflects the quality of governance. Weak enforcement of the law provides space to criminals and terrorists to further their aims. For example in Karachi, the country’s biggest city, the Supreme Court has taken notice of the existence of ‘no-go areas’. The presence of gangs in the Lyari area is another challenge for the Karachi police. Such groups patronize extortion, as well as the proliferation of weapons and drugs. Though we are an energy-starved country, the theft of electricity and gas is considered normal practice. For example, illegal gas connections in Khyber Pakhtunkhwa’s Karak district have touched alarming levels. The district is said to be a defaulter of Rs210m. Our tax laws provide exemptions to certain sectors, such as agriculture.
According to a media report only 0.81 million people filed tax returns during 2011-12, despite the fact that some 3.39 million people possessed National Tax Numbers. “Only 0.6pc of the population pays taxes in Pakistan, as against 4.7pc in India, 58pc in France and 80pc in Canada,” the report observes. The easy availability of weapons and explosives is another grave issue badly affecting peace in the country. According to an estimate 20 million illegal weapons pose a serious threat to national security. However, deweaponization based on zero tolerance can earn dividends. Balochistan is a province where establishing the rule of law is a major challenge. The country’s largest province, as far as area is concerned, is divided into ‘A’ and ‘B’ policing areas. To strengthen the writ of the government in 2003 a program of converting ‘B’ areas into ‘A’ areas at the cost of Rs5.515bn was started. But owing to certain reasons the colonial-cum-tribal set-up was restored in 2009.
When institutions fail to protect human rights and dispense justice, the vacuum is filled by non-state actors. The low conviction rate encourages criminals. In Khyber Pakhtunkhwa, during 2012 in cases of terrorism, the conviction rate was only 4pc. Overall in Pakistan the conviction rate varies from 5pc to 10pc, whereas in the US it is 95pc. According to India’s National Crime Records Bureau data, in that country during 2012 the conviction rate was 38.5pc. The rule of law requires balance between rights and responsibilities, where no one is above the law — including the government. The Constitution guarantees fundamental rights and everyone is supposed to have access to justice, including the accused. In our context judicial activism and a free media have enhanced the understanding of human rights.
From September 2012 to September 2013, 45,040 complaints were filed with the Human Rights Cell of the SC. Yet delayed justice erodes the public’s confidence in the system. For example in 2012 there were 107,088 cases pending in 437 courts of Sindh alone. Reluctance of the witnesses to testify speaks to the defects in the system. The rule of law requires a human-friendly correctional system, having the capacity to correct human behavior. But Pakistan’s overcrowded jails only end up creating more hardened criminals.
RULE OF LAW UNDER CONSTITUTION OF ISLAMICE REPUBLIC OF PAKISTAN 1973
In the constitution of Pakistan 1973 the principle of rule of law was embodied in shape of article 4 which though is not a part of the fundamental Rights however provides better safe guard to the individual as even in the emergency this right to be dealt in accordance with law is not suspended.
As it was held in Jamal Shah Case PLD 1966 SC 1.
According to Kaikas Justice Article 4 prevents the Government from taking any action in their country for which there is no legal sanction and it at the same time debars the legislature from creating an authority whose actions are not subject to law. It was also held in Mir Ali Nawaz Bugti vs. Superintendent Jail PLD 1966 sc 357 , 360 It is intended to negative any claim by the Government that any category of its acts in relation to citizens and other persons in paksitan are not subject to law at all In Brig. Imtiaz Ahmad vs Govt. of Pakistan 1994 SCMR 2142, 2160. It was sought to be argued that the Appellant the former director Intelligence Bureau who had challenged the registration of some criminal cases against him was not an ordinary man, the supreme court thought it necessary to recall for the benefit of all concerns that “ the law makes no difference between great and petty officers ; thank God they all are amenable to justice.
In Federation of Pakistan vs. Ghulam Mustafa Khar PLD 1989 SC 26, 53 It was held that so predominant is the position of Article 4 in the constitution that it furnishes the only Guarantee assurance to the citizen when the fundamental rights are suspended.in a ay the Article confers a right which is more basic then fundamental rights because while the fundamental rights can be suspended the right given in Article 4 cannot be. In Manzoor Ellahi vs. federation of Pakistan PLD 1975 SC 66 it was held that Pakistan is governed Rule of Law as as embodied in Article 4 and 5 of Constitution. The constitution creates no right and imposes no duty in vain. INTRODUCTION OF DUE PROCESS AND FAIR TRIAL IN FORM OF ARTICLE 10-A “10A. Right to fair trial.- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” After introduction of Article 10 A The due process of law which is relatively a wider term than the rule of law has been made the part of fundamental rights guaranteed by the constitution to the subjects of the state.
Through Article 10-A of the Constitution which is largely inspired by Article 6 of the European Convention on Human Rights, the legislators have introduced two fundamental concepts i.e. of due process and fair trial. Interlinked as these are, due process has a much wider meaning than fair trial. The history of due process is rooted in the Magna Carta in English jurisprudence and, subsequently, in the American jurisprudence surrounding the 5th and 14th amendments to the US constitution.
The 14th Amendment, for example, states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The US Supreme Court has interpreted the 14th Amendment as having created a constitutional natural law that would be available as a protection against the states and not just the federal government (which was the position under the 5th Amendment). In Pakistan the Article 10 A is still under process of interpretation before various court as various exiting laws have been challenged in various writ Petitions. However it can be presumed that the introduction of Article 10 A would be serve as an instrument for the legislature and law enforcing agencies to seal with the subjects on equal footing while law making process. CONCLUSION:
For improvement in the rule of law, the ‘enforcement wings’ of authorities such as the Federal Board of Revenue, civic administrations, PEMRA, the Pakistan Telecommunication Authority and the Drug Regulatory Authority etc. need better administration. The media in Pakistan, especially the electronic media, has the potential to educate the masses regarding their role in the establishment of the rule of law. Instead, at times, some outlets end up glorifying non-state actors. Improved rule of law in Pakistan requires an improved criminal justice system, especially in Fata, Balochistan, Karachi and certain parts of KPK. Therefore capacity-building and revamping of the whole criminal justice system is essential. Reforming one component will not work; synchronised reforms are the need of the hour.