There is often a confusion that manifests when people fail to distinguish between notions of the rule of law and law and order. Speaking of the rule of law, we are not concerned with matters of adherence, but rather the equality of all in the eyes of the law itself.
Constitutional democracy pivots around the rule of law. It requires that the state only subjects its citizens to publicly promulgated laws and subordinate legislation. The legislative function of the state must be separated from the judicial function and no one, as a matter of policy, may remain above the law. Modern constitutionalism stems from three features: limiting the powers of the government, strict adherence of the rule of law and the protection of fundamental rights.
We regularly proclaim our abhorrence towards dictatorial and authoritarian rule, harping on about the virtues of constitutional democracy, and yet many conveniently omit to attach due weight to the rule of law itself. In fact, our hapless and ignorant masses have not even been made aware of that fact that a demand for the rule of law is in fact a demand for the enforcement of fundamental rights. Our colonial past has hindered us as much as any other factor. The departure of the colonialist resulted in the passing of the baton of supremacy into the hands of our own landed aristocracy and establishment. One would have thought that the perniciousness of military rule and a longing for constitutional democracy would inevitably prop up the rule of law, but the converse has happened. Our political leaders have morphed into demigods. It is almost inconceivable that they could do any wrong and they have hardly ever considered the red lines of the law as a barrier to the continuing exercise of bloated, excessive power, all pumped up by the machine of political popularity.
The power of our military, unprecedented in any constitutional democracy, has cast a shadow over the very fabric of our society, particularly with its targeted influence in civil affairs. Despite the brazen hostility between Gen Musharraf and Ch Iftikhar and their questionable use of constitutional powers, both Gen Musharraf and Ch Iftikhar’s son Arsalan remained unruffled by the trials and accountability that ensued.
Notwithstanding the virtues of the 18th amendment, certain features have created a collusive system that links the leader of the house with the leader of the opposition, in a gentleman’s agreement that they may flout the law through manipulated appointments of the election commission and NAB. You scratch my back I’ll scratch yours!
Whether it is the arrest and trial of Dr Asim, Sharjeel Memon or other close associates of Asif Zardari, the whole process appears to be a mere sham. Even the Panama Leaks case seems to have dissolved into thin air after the disqualification of Nawaz Sharif. Ironically, the London flats that are under graft investigation have now become a safe haven for the conveniently exiled family of the Sharifs. The NAB references may meet the same fate as that of the Liaqat Bagh firing cases against Mustafa Khar.
The power of our military — unprecedented in any constitutional democracy — has cast a shadow over the very fabric of our society, particularly with its influence in civil affairs
Anecdotal accounts of the daily trampling of the rule of law are unending. The saddest part is the lip service provided by the champions of the human rights and political correctness. For them, apparently, their entire scope of human rights campaigning begins and ends around issues of women’s rights (a legitimate cause, per se) and a hatred of the army. Raising voices and taking concrete actions against routine violations of the rule of law doesn’t seem to be a matter of priority in Pakistan. Perhaps people don’t see any nexus between the fundamental rights and the breach of the rule of law.
The political use of Interpol’s assistance and the abuse of the ECL laws make mockery of the rule of law. After the removal of her name from the ECL, the circulation of Ayan Ali’s iconic photo, where she sat in the first class cabin of Emirates Airlines – practically showing two fingers to all, is essentially the truest comment on our judicial system and the fragility of rule of law. This even resulted in the tragic assassination of the investigating officer in Ali’s money-laundering case.
In the absence of the rule of law, contemporary constitutional democracy is an impossibility. Beyond this essential dilemma, however, it is still not completely clear what precise characteristics the rule of law must possess to help sustain constitutional democracy and what specific role it must assume to find its place as an essential ingredient of equitable way of life.
If in our society the rule of law loses all meaning and the current status quo becomes the norm, the overriding goal of developing just governance and delivering a fair future for our people will remain, quite simply, yet another Pakistani pipe dream.
(The writer is a barrister practicing law in London and Pakistan.)