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.