The basic pivot of modern governance is the rule of law though the concept of law itself has been open to various interpretations. Like all concepts encompassing essential tenets of human existence the concept of rule of law is most subject and laden with values.
Though it is interpreted differently yet there is a broad consensus on its salient features and efforts are made to follow and implement them in letter and spirit. It is generally agreed that some basic assumptions in this respect are largely entertained and supported.
In this context it is emphasised that governance should be devoid of arbitrary decision making and no one can be made to suffer in body or goods except for a distinct breach of law. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint.
Jurists unanimously agree that the implicit requirement of the rule of law is equality before law implying that no one is above the law and every man and woman, whatever his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. It is also mentioned that formulation of general rules of constitutional law are the result of judicial decisions and they include the right to personal liberty and the right of public meeting that determine the rights of private persons in particular cases brought before the courts.
This is a very important aspect of the rule of law and brings to fore its consensual nature and the urge to uphold the rights and privileges of human beings.
As far as the basic principles of the rule of law are concerned then it is pointed out that as the purpose of all law should be respect for the supreme value of human personality, therefore, it should commensurate with fundamental principles. The most significant point in this respect is the respect for basic human freedoms that may be possible in the absence of retrospective penal laws that are aimed at curtailing required freedoms. Citizens should also be conceded the right to bring proceedings against the state along with the right to a fair trial including the presumption of innocence, legal representation bail and the right to appeal. For ensuring such measures an independent judiciary is sine qua non and cannot be ignored as it would be able to ensure adequate control of delegated legislation.
Moreover to ensure adequate rule of law, the law must be accessible and so far as possible, intelligible, clear and predictable. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion with the applied equally to all, save to the extent that objective differences justify differentiation.
It is also required that ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred without exceeding the limits of such powers and not unreasonably. Means must be provided for resolving without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. It should also be ensured that adjudicative procedures provided by the state should be fair along with ensuring compliance by the state with its obligations in international law as in national law.
The accessibility of law, its intelligibility clarity and predictability are found missing in Pakistan as laws in Pakistan lack intelligibility. They still use colonial parlance that is difficult to understand and with the dwindling standards of English in the country it has become a problem for a majority of lawyers. The risk here is that members of superior judiciary usually come from the lawyer community and they may also be subjected to this difficulty. Accessibility is another big hurdle in fulfilling this aspect of rule of law as very few people actually grasp the nuances of law and most of the times they do not know how to comprehend and handle litigation.
These impediments continuously cause incalculable harm to the rule of law in Pakistan that often suffer from these difficulties.
As far as the requirement of representative institutions for effecting adequate rule of law is concerned then Pakistan does have such institutions The International Commission of Jurists lists the existence of representative government as one of the requirements of rule of law. Though, this requirement of rule of law is debatable, if we take it for granted then we may say that Pakistan fulfils this requirement of rule of law in the shape of National Assembly and provincial assemblies.
However, the lack of devolution of powers to local governments is a cause for concern. Even the position of federal and provincial legislative houses in the country is not viewed with credibility as they are supposed to be heavily dependent upon outside influence not only in their election process but also in their legislation business.
The parliamentary aspect of governance clearly reveals that it does not qualify to be considered in line with the tenets of the rule of law.
Another drawback that the rule of law faces in Pakistan is the lack of fair trial that is widely recognised as a crucial impediment. Even in exigent terrorism matters the trial process is extremely slow whereas it is mandated to be conducted speedily. It is often noted that the mandated trial period of seven days is hardly adhered to but it is pointed out that it takes two years for a simple case to conclude in which punishment is no more than 5 years. The situation is further complicated by the fact that the behaviour of judges is often very casual particularly when they grant trial adjournment without sufficient causes for doing so. These complications have badly jumbled up the path to implementation of the rule of law and it appears that this situation may continue to prevail.
One cardinal factor of the rule of law is that justice is provided at reasonable cost to the petitioners along with not causing inordinate delay. But in the Pakistani governance system obtaining justice is prohibitively expensive and simply unaffordable to the common citizens. It is widely known that a common man hardly has enough means to obtain relief for his grievances and he is often has to endure injustice.
Delays in settling of litigation are legendary and a large majority of people are seriously disappointed by the performance of the judicial arm of the state.
The laid down policies pursued with the aim of reducing caseloads on the courts such as case management, awarding costs and ADR unfortunately only exist on paper and are scantily practiced delaying the provision of justice that is often equated with the dictum that justice delayed is justice denied.
The worst part is the sheer absence of the equality before law in Pakistan causing serious problems of inequality and social deprivation. It is widely held that rule of law cannot be achieved unless every citizen is given equality before law to ensure that he is treated at par with his compatriots.
