The rule of law and hierarchy

Pakistan has always had a difficult relationship with the rule of law.

Its history is riddled with paper-thin adherence to the concept. The law has been used as a political tool for personal gain, or as a hammer to achieve illegitimate goals regardless of the cost. Examples abound: Necessity, as a means to legitimise unconstitutional actions; the use of presidential discretion to dissolve elected parliaments; religious offences, to maintain a hegemony of faith.

The World Justice Project, in its 2020 Rule of Law Index, ranks Pakistan at 120 out of 128 countries. This abysmal ranking comes as no surprise. Yet, no institution of state, no political party, no chief justice, appears to be working towards confronting the problem.

This state of affairs, at first, appears perplexing. After all, without a strong rule of law regime there can be no development, no economic growth, and no peace. Why does then nobody talk about overhauling our legal system?

Perhaps the answer lies in the fact that the absence of the rule of law in the country favours those who have historically held power in Pakistan. Furthermore, the way the law is structured necessitates and perpetuates hierarchy. A hierarchy favouring not just those who have historically held power, but also of wealth, and social capital.

An essential component of the rule of law has always been that the law must apply equally to everyone. No person, or institution of state, should be above the law. At its core, this is an accountability provision. Those who flout the law must be held accountable — no matter who they are.

We know this is not true in this country.

The imbalance of power that courses through Pakistan is reflected in the law. While our history shows that the law has gone above and beyond to hold politicians accountable, it beats a hasty retreat when it comes to dictators and those who facilitate them.

It is shocking how the law is used to grant impunity to some of the most draconian actions taking place in certain parts of the country. There are parts of Balochistan and Khyber-Pakhtunkhwa which appear to exist outside the law altogether. The only form of law that is allowed entry there is the one that suits those in power.

Rather than enhance accountability, the law has historically tried to make many of the human rights violations easier through legislation such as the Frontier Crimes Regulations of 1901 (applicable in former Fata) or the 2011 Actions (in Aid of Civil Powers) Regulations.

Even the Constitution aids and abets this flouting of the rule of law. In 2019, the KP Action (in Aid of Civil Powers) Ordinance, 2019 was enacted which allowed — in the name of exceptional circumstances — the use of internment centres in K-P which deny the right to a fair trial. The Constitution can be used to justify this legislation since it states in Article 245 (1) that armed forces can be used in aid of civil power if the federal government deems it necessary. This decision is then made immune from being questioned before any court.

The legal regime also favours a hierarchy of wealth. Wealth buys you the law because it buys you time. They say ‘delay defeats justice’ but Pakistan never got the memo. Let me give you an example of how long a case can run in our judicial system: In January 2018, the Supreme Court announced its verdict in a case that had been instituted 100 years ago.

As lawyers, even for the simplest contractual dispute, we are forced to advise our clients that the case will take at least 10 years before a decision is made by a trial court — longer, if either party decides to appeal. This means in excess of 10 years in legal fees, costs, and multiple trips to courts. With legal aid non-existent, and judges rarely making cost orders, the majority of people in Pakistan cannot afford this. Which is why they defer to politicians, biraderi, or just a one-off bribe to avoid going to court altogether.

Wealth also grants access to social capital. And the law favours the language of a particular social class.

The rule of law states that the law must be, to the best of the state’s ability, clear and accessible to all. People should know what the law is so that they can not only plan their lives accordingly, but also so that they can know what their rights are.

But for the majority of people in Pakistan, the law is an alien concept. Written almost entirely in English, taught in English, with judgments in English. The law is a foreign language, making it accessible only to a small segment of the country. A small segment that interprets it, moulds it, and enacts it according to their own best interests. Discourses around constitutional rights are meaningless to the majority of the people in the country because they have never experienced those rights in their lifetime.

The consequences of having a system where the law perpetuates existing power structures is of course the further reproduction of hierarchy. And thus, the law, dreamt to protect all, protects only a few. The rest of the country is made completely dependent on this small minority.

We must dismantle this regime, otherwise there is no chance of this country progressing on any front. The only way to do this right now is through a collective demand for change. Imran Khan has three more years left in power. If he acts now, he can work to change this system. That change would be the greatest accomplishment by any politician in the history of this country.

Published in The Express Tribune, August 25^th, 2020.

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