“Be you ever so high, the law is above you.” — Lord Denning
The rule of law is a fundamental principle of a democratic society, ensuring that all individuals and institutions are subject to the same laws and legal processes. Article 4 of the Constitution of Pakistan is the bedrock of the rule of law, and antithesis to the rule of men. It is a restraint on the executive and judicial organs of the state to abide by the rule of law.
Regrettably, Pakistan has long grappled with the challenge of upholding the rule of law, with epochs of authoritarian rule and political instability contributing to a culture of impunity and disregard for legal norms. The rule of law has been a critical issue in Pakistan since its inception in 1947. Despite having a constitution that enshrines the principles of equality, justice, and freedom, the country has struggled to establish an effective legal system that upholds these values.
During periods of military rule, the rule of law was often undermined, with basic civil liberties and human rights frequently violated. In particular, military regimes frequently relied on special security laws and emergency powers to suppress dissent and silence opposition. The implementation of laws and regulations has often been inconsistent and selective, with some groups and individuals receiving preferential treatment while others are subject to harsh punishment for the same offenses. This has contributed to a sense of lawlessness and impunity, further undermining the authority of the legal system.
Any deviation from the constitutional process of forming a representative government undermines the rule of law, which puts at risk the essential values promised to the people of Pakistan by the Constitution.
The passing of the vote of no confidence motion and subsequent ruling by the Speaker, as well as the dissolution of the provincial assemblies, have led to the persecution of political party workers through illegal detention, diminishing right of speech and expression of the citizens and other forms of political victimization. Such actions were and are a blatant disregard for the law and the constitutional rights of individuals. Recently, the Supreme Court of Pakistan in suo motu Case No. 1 of 2023 titled Islamabad High Court Bar Association and Muhammad Sibtain Khan and others vs Election Commission of Pakistan and others ordered the Election Commission to hold elections within the stipulated period or a date as near as possible to the deadline. Haplessly, the ECP’s decision to delay the polls violates the Constitution, undermines the law, and shows disrespect for the Supreme Court.
This is not just about individual voting preferences, but about the fundamental principle of the right to choose one’s representatives. The Supreme Court has repeatedly emphasized the importance of elections as a constitutional obligation. The decision of the ECP threatens the very foundation of the constitutional and legal framework. Moreover, the ECP’s interpretation of the Supreme Court’s ‘barest minimum’ deviation to justify delaying the Provincial Assembly elections for 5 to 6 months and its invocation of Article 254 of the Constitution to defy a clear constitutional requirement are both legally questionable and disingenuous. Under the Constitution of Pakistan, the people of Pakistan can be governed by the representatives they choose, as the government and other elements defined in Article 7 of the Constitution are responsible for upholding the rule of law guaranteed to the people of Pakistan by Article 4 and 25.
The lack of adequate legal frameworks and institutions has also resulted in widespread human rights abuses, including extrajudicial killings, torture, and arbitrary detention.
While Article 25 is a fundamental right, Article 4 serves as a precursor to Part II, Chapter 1 of the Constitution, which establishes the fundamental rights guaranteed to the people of Pakistan. As a result, both Articles are critical in the context of upholding the rule of law. Any deviation from the constitutional process of forming a representative government undermines the rule of law, which puts at risk the essential values promised to the people of Pakistan by the Constitution. It is not permissible for anyone to supersede constitutional provisions with their judgment or authority, according to the Constitution. Therefore, every branch of the government must prioritize the supremacy of the law and Constitution, rather than individuals. The absence of the rule of law can be detrimental to democracy. Democracy without the rule of law becomes the rule of the mob or illiberal democracy i.e. a system where the rights of minorities are not protected and where human rights are compromised.
According to Aristotle, “where the laws have no authority, there is no constitution” and “the rule of law…is preferable to that of any individual. This is because individuals possess flaws and could tailor government to their interests, whereas the rule of law is objective. One of the most significant challenges to the rule of law in Pakistan has been the prevalence of military rule. The country has experienced multiple military coups and authoritarian regimes throughout its history, and these regimes have often imposed their laws and rules, overriding the country’s constitutional and legal frameworks. One of their notable skills is writing impeccable notifications and providing extensions for military personnel.
One potential solution is the establishment of a full bench of the Supreme Court, which would issue clear and unequivocal directives, eliminating any possibility of misinterpretation.
However, elected prime ministers can be removed from office multiple times, and even subjected to extreme measures such as hanging or assassination, while the Constitution can tamper with, but there doesn’t seem to be any concern, crises, or turmoil. This has led to a culture of impunity, where those in power can act with impunity and without accountability. Another significant challenge to the rule of law in Pakistan has been the country’s weak institutional framework. The lack of adequate legal frameworks and institutions has also resulted in widespread human rights abuses, including extrajudicial killings, torture, and arbitrary detention.
Overall, the rule of no law in Pakistan has been a complex and multifaceted issue that has been shaped by a range of factors, including corruption, political interference, religious extremism, and a lack of an independent judiciary. Addressing these challenges will require a sustained effort to reform the legal system and strengthen the rule of law, to ensure that all citizens have equal access to justice and the protection of their rights.
In the current anarchic situation and the misinterpretation of the constitution, the responsibility now falls upon the Chief Justice of Pakistan to find a clear and trustworthy resolution that can guide the country out of its current chaotic state. The judiciary, led by the Chief Justice, may have played a role in creating, or even aggravating the current crisis. This was due to a verdict that has been criticized by constitutional experts as amounting to a rewriting of the Constitution. Specifically, the court’s interpretation of Article 63A went beyond the intended scope of disqualifying assembly members for changing party affiliations, instead nullifying votes cast in defiance of party orders.
One potential solution is the establishment of a full bench of the Supreme Court, which would issue clear and unequivocal directives, eliminating any possibility of misinterpretation. This approach would enable the Court to carry out its duty transparently and impartially, which would be viewed as credible and therefore more likely to be accepted by the public at large.
To recapitulate, the rule of law in Pakistan has been a persistent challenge throughout the country’s history. The country has struggled with military rule, political interference in the judiciary, and weak institutional frameworks, all of which have undermined the country’s legal systems and institutions. Until these challenges are addressed, it is unlikely that Pakistan will be able to establish a truly democratic and just legal system that upholds the rule of law.