Rule of law or rule of men?

The rule of law forms the core of a civilised, democratic society. It is fundamental to political stability, social progress and economic development in a country. Unfortunately in Pakistan, the principle of ‘no-one is above the law’ is restricted to mere sloganeering — whether it is a democratic dispensation or a dictatorship. Pledges to ensure ‘supremacy of the law’ are ever high on the agendas and manifestoes of political parties, but have hardly been worked towards as a basic principle of governance in an egalitarian society.

Rule of law is an old concept — one that had agency even during the times of Aristotle. In his book, Politics, the great Greek philosopher poses the question: what is better, the rule of law or the rule of an individual? And he responds, saying, “to invest law then with authority is, it seems, to invest God and reason only; to invest a man is to introduce a beast, as desire is something bestial, and even the best of men in authority are liable to be corrupted by passion. We may conclude then that the law is reason without passion and is therefore preferable to any individual.” How prophetic he was!

These concepts provided in early history have been developed, evolved, and enriched. They are now a part of the constitutions of all civilised nations. Rule of law as a concept is at the centre of any judicial system, without which no society can think of justice today. In ordinary parlance, it means all citizens are equal before the law and under its protection; and that state functionaries and citizens must act in line with the law.

In recent history, AV Dicey, an exponent of the rule of law, maintained that “absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative or even wide discretionary authority on part of the government.”

US judges have interpreted and developed the concept in this context. Justice Scalia in Morrison v Olson (1988) mentioned that it appeared what is called rule of law in the UK is the “proud boast of our democracy that we have a government of laws and not of men”. This was also echoed in Continental Conference that “in America the law is king. For absolute government the king is law, so in free countries, the law ought to be the king; and there ought to be no other. But lest any ill use should afterward arise, let the crown at the conclusion of the ceremony be demolished, scattered among the people whose right it is”.

In Pakistan, the ‘rule of law’ has recently been elucidated in a judgment in Constitution Petition No 39 of 2019, authored by Justice Asif Saeed Khosa, a former chief justice of the Supreme Court. To the fundamental question: “Is our government of laws or of men?”, the honourable judge remarks, “I understand that democratic maturity of our nation has reached a stage where this Court can proclaim that, as declared by Chief Justice Sir Edward Coke of England in the Commended case in the year 1616 regarding the powers of King James-I, howsoever high you may be; the law is above you.”

Prime Minister Imran Khan has time and again mentioned during his fiery speeches that the country is afflicted with the rule of the elite, like sugar barons; and “such mafias” have been trying to avoid accountability and resist the rule of law in the country. However, the PM does express his thundering commitment to maintain the rule of law and ensure accountability.

The 1973 Constitution of Pakistan also underscores the notion of the rule of law. In other words, the rule of law is the bedrock of our constitution. The essence of the rule of law is embodied in Articles 4 and 5 of the Constitution, which emphasises the right of individuals to be treated in accordance with law and loyalty to the state, and obedience to the law and the Constitution.

Upon analysing the situation on the ground and in history, one can safely say that the reality does not match the rhetoric. The bitter truth is that we have scant respect for the Constitution and the rules of business framed thereunder, the supreme law of the land. The Constitution has been abrogated, suspended, and held in abeyance repeatedly. Judiciary, the guardian of the Constitution, has been manipulated to get desired results.

Elections have been engineered. Citizens are deprived of liberty without due process of law. Subsidies were given to sugar barons by the cabinet. Residential structures were constructed on water channels in the federal capital which resulted in urban flooding there during recent rains in sheer disregard to the master plan. Postings and appointments in violation of the Civil Servants Act and schedules attached thereto are orders of the day. The establishment of National Coordination Committee does not go in line with the NDMA Act.

Micromanagement of the administrative machinery down to the level of SHO and Patwari through the Prime Minister’s Portal is against the demarcation of the administrative authority of the federation and provinces. Change of the entire law regulating forest reserves and retreating from the stand taken by the Forest Department in the High Court in the Malam Jabba case reflect the rule of the elite. Moreover, the much-talked-about hybrid system, alien to the Constitution and other laws, illustrates negation of the rule of law and indicates the rule of men.

The rule of law as a cardinal principle of the Constitution is the main ingredient of the good governance. This cannot be ensured by mere lip service, but by practically working within the orbit of the Constitution with no extra-constitutional role to any functionary of the state.

Published in The Express Tribune, August 18^th, 2021.

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