Rule of law and the FIA

The foundation of modern states and civilisation is based on the concept of rule of law. The rule of law stimulates and provides strength to the institutions of the state and is thus considered an important element of good governance, acting as the equilibrium of social order.

Deviation from the rule of law leads to disorder, eventually resulting in anarchy. Therefore, disdain exists for what is not in accordance with law. Under this concept, the rulers and the ruled are governed under the law and not at whims of a person or authority. Aristotle long ago stated, “It is better for the law to rule than one of the citizens” and continued to state: “so even the guardians of the law are obeying laws.” The functionaries of the state derive their authority from law not from the personal command of any individual.

Among the comity of nations, Pakistan was also conceived as a state to be governed under the law. The 1973 Constitution also postulates the concept of the rule of law in its different provisions. The preamble to the Constitution guarantees fundamental rights, including equality of status, of opportunity and before law; social, economic and political justice; and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. This also flows into subsequent provisions of the Constitution.

Article 4 of the Constitution of Pakistan lays emphasis that every individual has a right to be treated in accordance with law. Therefore no detrimental action can be taken save in accordance with law and no person shall be compelled to do that what the law does not require him to do. In this respect, any action which is mala fide or colourable is not regarded in accordance with law. Similarly, Article 25 ensures all citizens equality before and entitlement to be under the equal protection of law. Under this concept, the citizens are equally subject to the ordinary law of the land. Moreover, persons placed in similar circumstances are to be treated alike. Thus, this rules out discrimination. However, instances have come to light wherein functionaries of the state have drifted from the concept of rule of law and succumbed to the dictates and whims of the powerful such as the prime minister, governors, and chief ministers.

This distortion takes place when the enforcer of law does not have the courage to confront the powerful with facts and stating therein that his or her wish was not in accordance with law.

The Constitution and law demarcates the domain of the federal government, the chief minister and the governor. But, in the past instances, in deviation with law and convention, the federal government had tried to dabble into the affairs of the provincial government through the Federal Investigation Agency (FIA). FIA officers also without the wink of an eye barged into the offices of the provincial governments, thus negating the FIA Act.

The FIA Act defines the role of the FIA and limits its jurisdiction to the affairs of the federal government. Plain reading of the act clearly states, “An Act to provide for the constitution of a Federal Investigation Agency whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain offences; committed in connection with matters concerning the Federal Government, and for matters connected therewith.” This clearly bars the jurisdiction of the FIA in matters of provincial nature. Meddling into the affairs of the provinces and their auxiliary bodies not only mutilates the concept of the rule of law but also amounts to malicious prosecution.

In the province of Khyber-Pakhtunkhwa, the FIA had never poked its nose into the affairs of the province and its allied bodies except an inquiry into the affairs of the BRT, that too on the order of the High Court. The Supreme Court has now suspended that order. But, strangely, the Chancellor (Governor) of the University of Swabi, instead of following the Constitution, University Act 2012 and FIA Act, summoned an FIA official to his office and ordered him to conduct an inquiry in which the Governor’s inspection team had already given its report and was also being inquired upon by NAB.

It could be presumed that the Chancellor might not have a sound knowledge of law or acted with other motives, but the FIA sleuth should have mentioned that it did not have the jurisdiction in the matter. It is not known under what authority of law the FIA had taken cognizance. One could have ignored it, had it not had far-reaching implications. This could set a bad precedent and can always be used as a tool to undermine the authority of the provincial government by any wily politician sitting either in the Prime Minister House or the Governor House. The FIA is advised not to play a game which is not in accordance with law and adhere to the law than to the rule of man.

Published in The Express Tribune, August 19^th, 2020.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.