The State of the Rule of Law in Pakistan

March 9, 2007 is an epoch-making day for Pakistani citizens. With Iftikhar Muhammad Chaudhry’s (at the time Chief Justice of the Supreme Court of Pakistan) blunt refusal to bow down before the unconstitutional demand of the military elite, and his unconstitutional removal by General Musharraf, at the same time Chief of Army Staff and President of Pakistan, the movement for his restoration with time transformed into a movement for the Rule of Law in Pakistan.

It’s just a co-incidence that the following article, which probably first time talks of the state of the Rule of Law in Pakistan, was completed on February 10, 2007. I realized the fact later.

This article was carried by The News in its edition of Political Economy on March 18, 2007 with a different title, The State of Misrule. Then, Business Recorder published it in two parts on March 24, and 25, 2007, without changing its title.    

During the Lawyers’ Movement or as it is termed, Rule of Law Movement, I wrote and published a number of articles highlighting the issue of the Rule of Law. Then, the same articles were compiled into a short book-form, and published under the title, TheGreatest Battle for the Rule of Law in Pakistan. As I was too eager for this collection to appear before the judgment of the full bench of the Supreme Court was announced, it came out in June 2007. The Judgment which restored the Chief Justice unanimously was announced on July 20, 2007.

Now I read with a bit of amusement what I wrote about the state of the Rule of Law in February 2007.

Here are a few lines:

“In sum, the state of the rule of law in Pakistan is precarious, and so the life of the people. This shows utter failure of the government and criminal negligence on the part of the institutions of government. Or is it willful? Willful in the sense that it might be serving, or it might suit, certain interests of certain quarters. This fear is strengthened by the fact that there is no serious notice seems to be taken of the situation, and there are no efforts on the way to improve it.”

And the recommendation:

“It (government) must divert all its resources to the performance of its ‘protective function’ ably and indiscriminately. The government which succeeds in creating a sense of protectiveness in its people as regards their life and property is a government helplessly needed by the people at this critical moment of our half century long unruly history.”

   

Read the article:

The State of the Rule of Law in Pakistan

“The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

[Dwight David Eisenhower, 1890-1969]

“I would have government defend the life and property of all citizens equally; protect all willing exchange; suppress and penalize all fraud, all misrepresentation, all violence, all predatory practices; invoke a common justice under law; and keep the records incidental to these functions. Even this is a bigger assignment than governments, generally, have proven capable of. Let governments do these things and do them well. Leave all else to men in free and creative effort.”

[Leonard E. Read, ]

  

The greatest affliction that can happen to a nation is that its institutions brazenly indulge in activities other than they are supposed to be involved in by general consensus or assigned to them by law or constitution. Thus, they defy their own raison detre. One such institution is government.

All governments on earth unmindfully do many such things for which they are not formed or which they are incapable of by their very nature. They leave their original purpose/s far behind of their mandate and run after so many pseudo goals they lay claim to that can never be achieved; these pseudo goals only  prolong their lies and unjust rule. But, as a rule, they fail in performing their very duties they are meant for. 

Differences abound what a government should do and what it should not. For instance: whether a government should involve itself in economic activity or not, or if it should, to what extent. Or, whether a government should adopt the role of a re-distributor of income or not. Or whether it should regulate economic activity or not; and if it should, to what extent. All this is a matter of great controversy. However apart from these controversies, there is one value on which universal agreement exists: it is rule of law. That a government ought to establish the writ of law and maintain it.

The greatest achievement of human civilization is that we have come to treat all of us as equal as regards rules and laws. Indeed, everybody is born unequal – he is unequal from others, physically, mentally, and in so many ways. So, had there been no rule of law, there would have been stark inequality. And, in that case, the mighty and powerful must have been ruling the roost.

Actually, all types of power or might or force subsumes under the concept of authority. This power or might or force may be of two types – one is one is born with by birth and other is one that is acquired. The former is like the might of a lion, elephant, rhinoceros or a powerful person. The might or power may be acquired by effort as well. As wrestling techniques, judo karate, tae kwan do, kung fu, etc; all these make one powerful. This power is part and parcel of human body; it cannot be separated from the person until and unless he suffers any damage physical or otherwise that is injurious to him and his acquired abilities.

But, there is another power that can be separated from the body of the person who has got it. This power consists of all those things or instruments which can be used in an attack on another person or in defense of one’s own self. However, the expertise or dexterity of using these ‘weapons’ can be learned and separated from one’s person by inflicting damage to his body or mind. A strong branch removed from a tree may be used to attack a person or in one’s defense with or without dexterity. The firearms are like that. Their use with or without dexterity can lessen or enhance the possibility of one’s success and survival.

All this power, might or force has something to do with physical bodies of human beings or with material things. However, in addition to these, there is another type of power which characterizes human society and human progress. This is Authority per se. Authority also endows one with power or might or force. A person who is invested with certain authority comes to be powerful regardless of the fact that he is weak or armless. Likewise, if a person is divested of such authority, no matter how mighty, powerful and armed he is he comes to be powerless.

It is this authority that initially was a symbol of democratic development and later came to be known as legal authority. In other words, this authority used to be derived from law. With the advent of this authority, individuals and groups lost their source of authority, viz, their power or might or force, natural or acquired. Now law became the source of power and might. This outdated the monarchical period.

With time, it was this legal authority that developed into constitutional authority. In order to manage communities and countries, constitutions were devised. Constitutional duties and responsibilities were fixed. All power or might or force was brought under law and constitution. This helped societies move forward from the law of jungle to the law of humanity. This was a great leap forward in the history of human civilization.     

But perhaps factually it is not like that! There are many societies that still oscillate between older and modern concepts of authority. Most of their people are still infatuated by power and might. They are still a victim of worshipping the rule of the powerful, and consider power and might as panacea to all ills. In such circumstances, forces opposed to rule of law easily get rooted and strengthened. They show no regard for the legal and constitutional authority, and law of the land. The law that invests them with authority they violate that very law. This is no human condition.

No doubt, Pakistan is one such country. We are steadily sliding down on the scale of rule of law – a sine qua non for the smooth running of social and economic life of a country. Take up newspapers, magazines, etc, of, say last six months, and there is recurring warning of worsening law and order situation. The editorials, opinion-articles, reports, news, news-features, letters to editors, all point to the same thing: that the government is not fulfilling its fundamental duty of protecting life, property and freedom of its individual citizens, and as a result, life for the common and general public is becoming a nightmare – no body feels safe anymore even in their homes. Not only is this the general perception, it is a fact also.

As to the factuality of this state of affairs, ruling leaders and government functionaries would differ by calling it impressionistic. As an argument, we have another source to validate our thesis: that Pakistani people are experiencing what is not rule of law and what is a grave law and order situation!

The business of life depends on a healthy life of business. A healthy life of business requires an environment conducive to its establishment, smooth running and flourishing, and protection of its income and property. It is because of this that many indices that measure in fact various business factors place rule of law at the top. We shall navigate only one such index and see how Pakistan fared on the scale of rule of law for the last 10 years.

The Economic Freedom of the World Report is prepared and published by the Fraser Institute, Canada. It is ‘the best measure of economic freedom available.’ It uses the data collected and processed by ‘third-party international sources such as the IMF, World Bank, World Economic Forum. Much of its ‘data is of the “objective” statistical sort, and much is also “subjective,” coming from surveys, case analyses, or expert panels.’

This Report does not measure rule of law specifically and independently, however, it takes into account the factors related with the state of the rule of law which affect economic freedom. Out of its five main areas, the second one is concerned with Legal Structure and Security of Property Rights.

Area → Components ↓	Legal Structure and Security of Property Rights
A	Judicial independence – the judiciary is independent and not subject to interference by the government or parties in dispute
B	Impartial courts – a trusted legal framework exists for private businesses to challenge the legality of government actions or regulation
C	Protection of intellectual property
D	Military interference in rule of law and the political process
E	Integrity of the legal system

By this area, the Report seeks to assess and establish the following:

“Security of property rights, protected by the rule of law, is essential to economic freedom. Freedom to exchange, for example, is meaningless if individuals do not have secure rights to property, including the fruits of their labor. Failure of a country’s legal system to provide for the security of property rights, enforcement of contracts, and the mutually agreeable settlement of disputes will undermine the operation of a market-exchange system. If individuals and businesses lack confidence that contracts will be enforced and the fruits of their productive efforts protected, their incentive to engage in productive activity will be eroded. Furthermore, poor performance in this area is sure to deter investment. Therefore, it is highly unlikely that countries with low ratings in this area will be able to achieve and sustain high rates of growth.”

Finally: “Protection of persons and their rightfully acquired property is a central element of both economic freedom and a civil society. Indeed, it is the most important function of government. The key ingredients of a legal system consistent with economic freedom are rule of law, security of property rights, an independent judiciary, and an impartial court system.” [Economic Freedom of the World 2006 Annual Report]

Here is the score assigned to Pakistan in this area for the last 10 years. The score is allotted from 1 to 10. The higher the score, the higher the rating and the better the performance and prospects.

Area: Legal Structure and Security of Property Rights	Overall score in the Area	A: Judicial independence – the judiciary is independent and not subject to interference by the government or parties in dispute	B: Impartial courts – a trusted legal framework exists for private businesses to challenge the legality of government actions or regulation	C: Protection of intellectual property	D: Military interference in rule of law and the political process	E: Integrity of the legal system
1995	4.9	- (No data available)	4.5	- (No data available)	4.6	7.0
2000	4.6	- (No data available)	4.3	- (No data available)	5.3	5.0
2001	3.4	- (No data available)	4.3	- (No data available)	0.0	5.0
2002	2.7	3.0	2.8	2.5	0.0	5.0
2003	2.3	2.3	2.2	2.0	0.0	5.0
2004	2.5	2.6	2.3	2.7	0.0	5.0

As to the overall score in the area, it has been steadily declining from 1995 onward. The same is the case with other components of the area with little differences: on the whole they too are minimizing. The two components, D and E, require our special attention. In the D component, the last four Reports have assigned zero score, why they did not do so prior to 2001? Didn’t the present spell of military government start in 1999? Also, in E, though the score declined from 7.0 to 5.0, but from 2000 onward it is static. How so? Has the integrity of the legal system in Pakistan come of age? Why is it at a standstill? This may be explained as an illusion of quantification since practically the integrity of our legal system is in complete disarray. Also, if read in conjunction with other components of this area, this score is unintelligible: when there is little judicial independence, almost non-existing impartial courts, and absolute military interference in the rule of law and political process, how the integrity of legal system can remain intact?

In component C, an improvement is visible perhaps because of increasing awareness on the part of people as well as government that rights to intellectual property need to be protected. In components A and B also, there is a bit of upward movement: that A bettered from 2.3 to 2.6 and B from 2.2 to 2.3. But it was in 2004. What about what happened in 2005 and 2006 and how it affected the general perception and belief of people and media in Pakistan? Out of a plethora of heart-rending news reports and stories spread over the electronic and print media, here is just one example: a letter to the editor of an English daily has following to say:

“My generation – one that once lived under British governance – knows what the rule of law meant. What we have today is anarchy. People like me, who are not affiliated with a political party, the bureaucracy, the army or the press, are treated as though we are not even citizens of the state. And yet we are the majority, the teeming, toiling citizens of Pakistan . . . .”

In sum, the state of the rule of law in Pakistan is precarious, and so the life of the people. This shows utter failure of the government and criminal negligence on the part of the institutions of government. Or is it willful? Willful in the sense that it might be serving, or it might suit, certain interests of certain quarters. This fear is strengthened by the fact that there is no serious notice seems to be taken of the situation, and there are no efforts on the way to improve it.

Whereas what is urgently needed, and is strongly recommended here, is a new prioritizing by the government putting the establishment and maintenance of the rule of law at the top with zero tolerance. The government must leave all its businesses other than infrastructure to the genius of its citizens and focus whole-heartedly on its basic duties such as betterment of the law and order situation, provision of justice. It must divert all its resources to the performance of its ‘protective function’ ably and indiscriminately. The government which succeeds in creating a sense of protectiveness in its people as regards their life and property is a government helplessly needed by the people at this critical moment of our half century long unruly history.

It is this policy which alone can ensure peace and prosperity to the people of Pakistan.

[This article was completed on February 10, 2007.]

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