Rule of law means the rule of law and law alone. All arbitrary decisions are prone to quash the rule of law. An authoritarian order manifest the rule of power instead of the rule of law. Rule of law entails equality of all the citizens irrespective of sex, caste, creed or color and ensures justice to all and sundry. If basic human rights of any individual cannot be asserted in a court, there is no rule of law. No civilized society can exist in absence of a regular system of justice and therefore independent judiciary consisting of highly merited and conscientious judges is essential to do justice between different individuals, and especiall between society and the state. Similarly there must be a fearless Bar to courageously uphold the cause of the people.
Apart form any government, there must be rule of elected representatives who must be chosen by the people, and not having been selected or foisted on people by a dictator or his agents through process of controlled democracy or engineered elections. The rule of law implies that government authority may only be exercised in accordance with written laws, which are adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases. The rule of law is fundamental to the any kind of democratic order whether it is parliamentary or presidential form of government.
Rule of law is an ancient ideal of Western Culture first posited by Plato more than 2,500 years ago as a system of rules inherent in the natural order. Aristotle said: The rule of law is better than that of any individual. Another quote from Aristotle’s The Politics that ‘when laws do not rule, there is no constitution’ fits most aptly to Pakistan’s political catastrophe and constitutional dilemma. The simple fact is that precise functioning of the Constitution guards freedoms and liberties of the citizens. It creates a feeling of self-respect and inculcates love for the country and its belongings. On the converse its suspension, interruption or postponement undermines patriotism of the citizens and above all degrades the pride and dignity of the country. The rule of law in its modern sense owes a great deal to the late Professor AV Dicey whose writings are of enduring significance. He pinpoints the essential characteristics of the rule of law as below:
- The supremacy of law, which means that all persons (individuals and government) are subject to law.
- A concept of justice which emphasizes interpersonal adjudication, law based on standards and the importance of procedures.
- Restrictions on the exercise of discretionary power.
- The doctrine of judicial precedent.
- The common law methodology.
- Ensuring legislation as prospective and not retrospective.
- An independent judiciary.
- The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
- An underlying moral basis for all law.
The rule of law is a cornerstone of well-functioning democracy while if it is blatantly violated, the establishment of a democratic structure in the country is jeopardized. Though our country at the outset of its creation was lodged with problems including that of a 1,000-mile of hostile territory between its two wings and a hostile neighbor hovering at both boundaries, had we observed the rule of law, we could have retained our eastern wing and avoided fall of Dacca. It was the absence of the rule of law that fractured our political, economic and social system. It is tragic that even after 55 years of its existence the State is looking for ‘sustainable democracy’. The rule of law ensures stability, discipline and order in the society. But its absence and rampant corruption leading to erosion in social values are two main hurdles to the betterment and development of our country.
It goes without saying that the rule of law is meaningless when the law itself has become flawed and does not ensure the enjoyment of all rights to all, without discrimination. Unfortunately institutions, including the judiciary, and the police are debilitated and made to subserve the executive. We have to evaluate where things have gone wrong over the last decades and urgently need to promulgate constitutional, legal and institutional reforms which could guarantee that all people in Pakistan can enjoy the full range of human rights free from discrimination and fear.
The constitution of a country is a living and vibrant document that determines the future direction of the nation, provided there is respect for the document that stands for Rule of Law. In a country where a single person is authorized (by self-acclaimed decree or through an authority itself lacking competence under the law) to amend the supreme law of the land, there can be neither democracy nor constitution. One wonders what the Quaid-i-Azam who was all out for the rule of law for the whole of his life and fought to achieve an independent country for the Muslims entirely in a constitutional manner would have felt and said of todays Pakistan?