The ever elusive Rule of Law

Rule of Law, if it were to be implemented in earnest, would limit the powers of each of the three state actors.

Any guesses as to what the parliament, the prime minister, the chief justice of Pakistan and now even the army chief have in common? Each of them not only claims to be a champion of the Rule of Law but also seems to imply that he (or at the very least, the institution he represents) is the best suited to uphold it in its true sense. There is, of course, an inherent irony in this claim because the Rule of Law, if it were to be implemented in earnest, would limit the powers of each of these state actors in ways that the chequered history of Pakistani politics has not yet witnessed. Is it, perhaps, for this reason that whilst each of them declares his respective allegiance to the Rule of Law, he hesitates to explain what it is exactly that he means?

The Rule of Law, as it is commonly understood today, has Western antecedents. Whilst the roots of the idea may be traced to Socrates, Aristotle and Plato, it was first formalised in 1215 in the Magna Carta, that great Charter of the Liberties of England and the mother, particularly, of nearly all post-colonial constitutions. Interestingly, however, the Magna Carta, rather than being the culmination of the ideological aspirations of the people of England, was in the nature of a transaction between English Lords and the incompetent and unpopular King John (the younger brother of the more illustrious Richard the Lionheart and the much reviled villain of the legend of Robin Hood): the Lords would allow the king his crown if he acted within limits and respected their privileges.

Over the next few centuries, this concept of the Rule of Law evolved to accommodate the transfer of English sovereignty from the monarch to the parliament. The laws proclaimed by this new sovereign could not claim their legitimacy from divine sanction and would only be enforceable if they represented the will and the interests of the people they purported to regulate. The changing times called for a “modern” articulation of the Rule of Law. This was provided by Dicey, the eminent 19^th century British jurist: Rule of Law meant that no man could be punished except for a violation of the law enacted in the ordinary legal manner and by the operation of the ordinary Courts of the land, everyone is equal before the ordinary law and that the decisions of ordinary courts should prescribe the limits of the domain of the law.

This theory, with its necessary permutations, became particularly relevant for countries like Pakistan and India that went constitution-shopping in the afterglow of the British Empire. Perhaps, it was the idealism of our Western-trained founding fathers or, perhaps, it was to avoid re-enactment of the carnage witnessed at our birth that we, like most post-colonial countries, chose to make the law, rather than an individual, group or religion (at least in pre-Objectives Resolution days), the primary regulator of society. In the constitutional model that followed, the parliament was entrusted with making the law, the executive with implementing it and the judiciary with ensuring that both the parliament and the executive exercised their powers within constitutional limits.

The success of this model, however, neither lies in the number of times it is reiterated nor in the identities of those who do so, but in understanding and observing its inherent limits. Is our parliament ready or equipped to enact laws that reflect the interests of the people and protect their welfare, rather than merely benefit those in power? Is our executive (and this includes the army) prepared to observe the limits prescribed by the law, rather than to assert its supremacy? Most importantly, is our judiciary and the legal profession from which it emanates, committed exclusively to “values of legality” rather than to nurturing populist aspirations? If even one of these is missing, the refrain of our commitment to the Rule of Law will remain nothing more than verbiage with which we hope to fool only our critics but also ourselves into thinking that we, too, rank amongst civilised nations of the world.

Published in The Express Tribune, November 14^th, 2012.