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May 31, 2020

Rule of law


May 31, 2020

The author is a former cabinet secretary.

Rule of law is the heart and soul of good governance. It is not a dusty legal doctrine as some would dismissively think but a vibrant force that has shaped modern states and civilizations. It is the bedrock upon which the edifice of a free and just society is built.

Much has been written on rule of law – its concept, definition, scope, historical evolution, and application in specific socio-political contexts. Rule of law in its narrow sense is taken to connote public administration and adjudication according to promulgated laws.

However, the prevalence of unjust laws such as apartheid which are otherwise framed by legislatures and duly enacted, just to quote one example, have led jurists and political philosophers to broaden the scope of the rule of law so as to encompass and explore questions of democratic mandate and protection of fundamental human rights as its essential ingredients.

In a short but seminal book ‘The Rule of Law’ (2010) Tom Bingham, who is considered to be one of the greatest legal minds of the time, questions the conformist view of rule of law and identifies and illustrates through concrete examples eight principles that should underpin rule of law as the true foundation and sheet-anchor of good governance in a free, egalitarian and progressive society.

These principles include accessibility to law, application of law rather than discretion, equality of all before law, fair exercise of power, protection of fundamental human rights, speedy and fair dispute resolution, the right to fair trial and compliance with international law.

In my view the operational framework of rule of law consists of a body of laws, rules and regulations predicated towards the creation of a just, equitable and progressive society; transparent processes and speedy procedures through which they operate; and effective institutions for their uniform application and implementation. The principles that Lord Bingham has espoused must be embedded and operationalized in each of the three components of this framework.

The legal framework in Pakistan is by and large a relic of the colonial past and needs to be adapted to the needs of a modern society, transitioning from a simple agrarian economy to a complex commercial, industrial and urbanised society. Some of the areas where law reforms are required are as follows.

One, the prevalent laws are an amalgam of Anglo-Saxon and Islamic legal precepts. Similarly, many special laws have been enacted over time to cover situations that overlap with general laws. This multiplicity is exploited for corrupt motives by law enforcing staff. There is a need to remove confusion and introduce greater uniformity in the body of laws.

Two, laws for securing property rights, speedy and equitable resolution of civil and commercial disputes, and protection of investment need to be enforced to generate investor confidence and ensure smooth operation of the market economy. Moreover, laws governing economic activity should reflect economic logic; otherwise incentive for compliance is seriously affected.

Three, inherent in the concept of rule of law is the notion of fairness and social justice. It has rightly been observed that laws are generally geared in favour of the rich and the powerful. Unequal access to legal assistance and judicial recourse aggravates the adverse impact of discriminatory laws on the poor and marginalized. Laws for the protection of the socially weak, for fair distribution of opportunities in society, and for elimination of discrimination need to be framed. Tax laws, land laws, family laws, and social security laws which fail to protect the underprivileged should be reviewed.

Four, excessive use of administrative orders issued under delegated powers have resulted in a conflicting and non-transparent legal framework. This has particular relevance to tax laws, trade policy and investment regulation. Moreover, the right balance between license and regulatory control is required in a market economy.

Five, administrative discretion and complicated procedures make room for corrupt practices. The rules should be amended to minimise discretion and lay down objective criteria for disposal of business. Six, the tendency to follow laws enacted in foreign jurisdictions without adapting those to social, religious and cultural factors in our society should be avoided. This can create distortions in implementation.

Seven, the legal framework should be predictable and not subjected to fortuitous change. A government’s credibility depends upon the predictability of its rules and policies and consistency with which they are applied. It is indispensable for creating an environment conducive to private investment both local and foreign. A cross-country survey undertaken by the World Bank staff identifies unpredictable, inconsistent behaviour of government agencies as a major disincentive that undermines investor confidence and hurts market development (World Development Report, 1997).

And finally, the current state of equality before law – a key ingredient of rule of law – reminds one of the proclamation by the pigs who hold government in George Orwell’s Animal Farm that “some animals are equal, but some animals are more equal than others”. The novelist’s comment on the hypocrisy of governments that proclaim the absolute equality of their citizens but give power and privileges to a small elite rings ominously true in our country's context.

We not only need to weed out discriminatory laws but also ensure across-the-board application. In order to improve governance, we have to make certain that nobody, howsoever high and powerful, is above the law, that there are no sacred cows hiding behind self-serving laws, and that no institution arrogates to itself the right to flout the separation of powers that is the foundation of our constitution and indeed of all constitutions in civilized societies.

Legal reform cannot be successful without political commitment of the government and unwavering support of all stakeholders as it is likely to be resisted by powerful vested groups in society. A Law Reform Commission comprising not only jurists of known acumen and integrity but also people of high credentials should be constituted and assigned the task of reviewing the existing laws with a view to creating an egalitarian legal framework.

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