The Concept Of Rule Of Law And Whether Pakistan Fulfills Its Requirements

Shahzeb's Art- Our Justice System (1)

The Concept Of Rule Of Law And Whether Pakistan Fulfills Its Requirements

The rule of law is a concept which is capable of different interpretations by different people. Of all constitutional concepts, the rule of law is also the most subjective and value-laden. In Introduction to the Study of the Law of the Constitution, AV Dicey offers a detailed description of the rule of law. Dicey argues that the rule of law has three main aspects:

  1. The absence of arbitrary powers: No one can be made to suffer in body or goods except for a distinct breach of law. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.
  2. Equality before law: No one is above the law and every man and woman, whatever his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.
  3. General rules of constitutional law are the result of judicial decisions: The general principles of Constitution (as, for example, the right to personal liberty, or the right of public meeting) are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.

Dicey’s concept represents the classical approach to the concept of rule of law. Later this piece of writing shall talk about some modern approaches to the concept of rule of law and analyse whether Pakistan fulfils the requirements of rule of law.

Joseph Raz’s Approach to the Concept of Rule of Law

Joseph Raz’s approach to the concept of rule of law has been to propose minimum standards in terms of the way laws are expressed and administered. Here, the emphasis has tended to be on the need for rules and procedures which ensure that laws may be used for the protection of rights and not just as a means of legitimising the use of powers. Joseph Raz’s version of the doctrine contained eight postulates (The Rule of Law and Its Virtues 1977).

  1. The law should be general (i.e. not discriminate), prospective, open and clear.
  2. The law should be relatively stable (i.e. should not be subject to frequent and unnecessary alteration).
  3. Open, stable, clear and general rules should govern executive law-making (i.e. the law should identify the jurisdictional limits to the exercise of delegated legislative powers).
  4. The independence of the judiciary should be guaranteed.
  5. The application of the law should accord with the rules of natural justice (i.e. the rule against bias and the right to a fair hearing).
  6. The courts should have a power of review over lawmaking and administrative action to ensure compliance with these principles.
  7. The courts should be easily accessible (i.e. individual recourse to justice should not be hindered by excessive delays and expense).
  8. The discretion of the crime preventing agencies should not be allowed to pervert the law (i.e. such agencies should not be able to choose which laws to enforce and when).

International Commission of Jurists’ Approach to the Concept of Rule of Law

International Commission of Jurists in 1959 (usually referred to as the Declaration of Delhi) declared that the purpose of all law should be respect for the ‘supreme value of human personality’, and that observance of the rule of law should entail the following:

  1. The existence of representative government;
  2. Respect for the type of basic human freedoms contained in the United Nations’ 1948 Universal Declaration of Human Rights and the 1950 European Convention on Human Rights;
  3. Absence of retrospective penal laws;
  4. The right to bring proceedings against the state;
  5. The right to a fair trial including the presumption of innocence, legal representation, bail and the right to appeal;
  6. An independent judiciary; and
  7. Adequate control of delegated legislation.

Lord Bingham’s Approach to the Concept of Rule of Law

Lord Bingham was the preeminent judge of his generation and a passionate advocate of the rule of law. Tom Bingham held office successively as Master of the Rolls, Lord Chief Justice of England and Wales and Senior Law Lord of the United Kingdom, the only person ever to hold all three offices. Following are Lord Bingham’s Eight Principles of the Rule of Law:

  1. The law must be accessible and so far as possible, intelligible, clear & predictable;
  2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion;
  3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation;
  4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably;
  5. The law must afford adequate protection of fundamental human rights;
  6. Means must be provided for resolving without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve;
  7. Adjudicative procedures provided by the state should be fair; and
  8. The rule of law requires compliance by the state with its obligations in international law as in national law.

Does Pakistan Fulfil the Requirements of Rule of Law?

Accessibility and Intelligibility of Law

The law must be accessible and so far as possible, intelligible, clear and predictable. Unfortunately, this requirement of rule of law is not fulfilled in Pakistan. Laws in Pakistan lack intelligibility. They are still couched in the colonial English system and their sentence structure is difficult to grasp even for a lawyer, let alone a layperson. There is an urgent need of transformation of the language of laws in modern English. There are also no adequate translations of laws in the national language. Accessibility is another big hurdle in fulfilling this aspect of rule of law, however one thing can be done in this regard, which is that both English and Urdu versions of laws (user-friendly format) should be available free of cost at the reception of every governmental office.

Representative Government

The International Commission of Jurists lists the existence of representative government as one of the requirements of rule of law. Though, this requirement of rule of law is debatable, if we take it for granted then we may say that Pakistan fulfils this requirement of rule of law in the shape of National Assembly and Provincial Assemblies. However, the lack of devolution of powers to local governments is a cause for concern.

Independent Judiciary

Another requirement of rule of law is that there should be an independent judiciary. When people talk about independent judiciary, they often refer to higher judiciary i.e. High Courts and the Supreme Court. But our analysis will also encompass lower judiciary. I believe, and statistics and social experimenting also tell us, that there is no independent judiciary in Pakistan. High Courts in common and lower judiciary in particular are hostages to pressure groups e.g. religious zealots and bar politicians. Hooliganism, corruption and incompetence are rampant in the lower judiciary. Conviction before conviction is a common sight in our courts when bail matters take two to three weeks to be decided. Montesquieu says that every punishment that does not arise from absolute necessity is tyrannical. Unfortunately, our courts have become tools of tyranny instead of guardians of rights of weak against powerful.

Right to a Fair Trial

The right to a fair trial is another aspect of rule of law. When literature regarding ‘right to a fair trial’ is perused we come to conclude that apart from its literal meaning, it also includes right to speedy trial. Unfortunately, Pakistan fails miserably to fulfil this requirement of rule of law. The Anti-Terrorism Act 1997 enacts that trial shall be concluded within seven days, however, in reality, it takes at least two years for a simple case to conclude in which punishment is no more than 5 years. More shocking is the behavior of judges when adjournments are granted without sufficient cause and they take around two weeks to deliver a judgment.

Civil Resolved Without Prohibitive Cost and Inordinate Delay

Another aspect of rule of law is that means must be provided for resolving without prohibitive cost or inordinate delay. All the policies for reduction of caseload i.e. case management, awarding costs, ADR, etc. only exist on paper and not in practice, therefore I shall conclude this paragraph by expressing a common expression prevalent in litigants in our culture, which is: ‘God save us from two things: courts and hospitals’.

Equality Before Law

Equality before the law is another aspect of rule of law. As far as the application of the law is concerned, Pakistan fulfils this requirement of rule of law because there exist no separate laws for rich and powerful, however, the treatment meted out while applying the law to the rich and wealthy makes the picture muddier.

Basic Human Freedoms

Another very important requirement of rule of law is respect for the type of basic human freedoms contained in the United Nations’ 1948 Universal Declaration of Human Rights. Basic human freedoms are well protected in our Constitution of 1973 i.e. Part II and Chapter 1. However, their realization is much dependent on an independent judiciary.

Other Requirements for Rule of Law

  • (a) The absence of retrospective penal laws;
  • (b) The right to bring proceedings against the state; and
  • (c) Courts having the power of review over lawmaking and administrative action.

Retrospective penal laws are not in existence anymore in Pakistan by virtue of Article 12 of the Constitution of 1973. Proceedings can be brought against the state by virtue of Article 199 and 184(3) of the Constitution. The writ jurisdiction is one of the rare speedy remedies available in Pakistan, however, its enforcement is not normally procured unless contempt proceedings are initiated. Judicial review is one of our cardinal principles of jurisprudence and since 2003, judicial activism has been on the rise in our country, and no administrative action can stay in the field if it offends the Constitution and the judiciary.

Conclusion

Concluding I would say that the rule of law is a concept of considerable intellectual pedigree, dating back in its embryonic form to the Greek city-states. Aristotle says in his book titled The Politics , “Where there is no rule of law, there is no constitution.” It is very sad that Pakistan does not fulfil a majority of the requirements for the rule of law. Things may be improving but with very slow pace.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Hashim Ali Gill

The writer is a lawyer by profession and is currently pursuing LL.M from the University of Punjab, Lahore. He has a proclivity for administrative law and comparative constitutional law.



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