A Brief Assessment of Rule of Law and Human Rights under the Constitution of Pakistan

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A Brief Assessment of Rule of Law and

Human Rights under the Constitution of

Pakistan Sadaqut Ali

Master of comparative laws student in Department of Law, International Islamic University Malaysia,

E-Mail – [email protected]

Abstract:

The philosophy of Rule of Law stated that no one above the law, all are equal before law and fundamental rights of

the citizens must be protected. Rule of Law, the fundamental constitutional principle, introduced in 17th centuries

and got popularity in 19th century by a great scholar A.V Dicey. This article looked into a brief assessment of Rule

of Law and fundamental rights under the constitution of Pakistan. This study based on qualitative and quantitative

research, and it first described what the Rule of Law is? Its main features, relationship between Rule of Law and

Human Rights, and then a comparative analysis of Rule of Law and Human Rights in Pakistan and other countries

of the world by referring World Justice Project, Rule of Law Assessment 2015.

KeyWords: Rule of Law, Human Rights, Relationship between Rule of Law and Fundamental Rights, World Justice

Project

1. Introduction

Most important principle that society should be

governed by law and not by arbitrary action. This expresses the importance of constitutional doctrine

known as “Rule of Law”. Rule of law has been

introducedin 17th century and became famous in 19th

century by British Professor A. V. Dicey. The

concept became familiar in ancient time also and

explained by philosophers such as Aristotle, who

stated as "Law should govern". One aspect of this is

that the government are subject to the same law as

everybody else, and accountable to law. There is a

further principle of equality, that the law should treat

its subjects equally. The law should also treat its

subjects with respect, so the rule of law requires that the law should be capable of being known,

understood and obeyed by its subjects and should be

applied clearly, public-ally and consistently by

courts.

The rule of law- the idea that we are governed by

a set of rules that all are expected to follow. The

Romans were the first to set it in place and found it

useful as a means of governing a large and diverse

empire spanning several continents. Over the

centuries, democracies, republics, and other forms of

limited government have adopted this concept as

necessary to just government. Without the rule of

law, with a system of justice that is arbitrary, there is no fairness, no expectation of retribution toward

lawbreakers, and no fear that prevents criminal

behavior. This leads to chaos and anarchy in a

society. In France, Dicey observed that there is no

rule of law because the government servants were

accountable to a different system of law and common

man was accounted to another system of law. The

differentiation must be rational, just and fair. There

should not be many agencies to enforce the law but

only one agency to enforce accountability on the

people.1

1 Dicey, A.V. (1885), Introduction to the Study of the

Law of the Constitution. London: Elibron






1.1 Rule by law and rule of law

Further there is a concept rule of law and rule by

law.2 Rule by law is completely different from rule of

law.‘Rule by law‟ simply means rule by any law

which is laid down by the supreme law making

authority of that country. One is not concerned about

what the law is or what its purpose is? In most of the

dictatorships and monarchies, there is a set of laws

through which the justice is administered. But, in such countries, rule of law does not exist.While on

the other hand, “The rule of law refers to the

regulation of the relationship between the state and

individuals by pre-established and knowable

laws. The state, no less than the individuals it

governs, must be subject to and obey the law. The

state‟s obligation to obey the law is central to the

very existence of the rule of law. Without this

obligation, there would be no enforceable limit on the

state‟s power over individuals.” 3 The law in our

society is supreme. No one - no politician - no

government is above the law. We are all subject to the law.

1.2 Definitions and Features of Rule of Law

The ideal of rule of law has been formulated in

many ways, both broad and narrow.According to the

narrow meaning, the rule of law means whether the

law is applied equally to all or not. According to the

broader meaning, the concept of rule of law embraces

human rights standards. Both the rule of law and

human rights standards should be respected, observed

and protected. There is much disagreement as to the values or principles that it embraces. The argument

has often focused on Dicey‟ classic exposition of the

rule of law, and in particular on the first two

meanings he gives to this expression.

Dicey defines the rule of law:

Classics, 1959. 2 Bo Li, a New York-based attorney, in his essay,

“What Is Rule of Law. and

Dicey, A.V. (1885), Introduction to the Study of the Law of the Constitution. London: Elibron

Classics, 1959. 3Hitzig v. Canada, 2003 CanLII 30796 (ON CA)

“Rule of law means, in the first place, the

absolute supremacy or predominance of

regular law as opposed to the influence of

arbitrary power and excludes the existence

of arbitrariness, of prerogative or even of

wide discretionary authority on the part of

the government. Englishmen are ruled by

the law, and by the law alone, a man may

with us be punishment for a breach of law

but he can be punished for nothing else.”4

In the first meaning of rule of law, dicey

defines the rule of law that law is supreme and no one

above the law, what authority you have, you always

bound to law. Rule of law in first meaning says that 'howsoever high you may be; the Law is above

you'.Law is the absolute supreme and predominant as

opposed to influence of arbitrary power or

discretionary power. In this sense, Dicey contrasted

the rule of law with systems of government based on

the exercise by those in authority of wide or arbitrary

powers of constraint, such as a power of detention

without trial.A man can be punished by rule of law,

and by nothing else.

Second feature of Dicey‟ definition of rule of law:

“It means again equality before

the law, or the equal subjection of

all classes to the ordinary law of

the land administered by the

ordinary law courts, the rule of

law in this sense excludes the idea

of any exemption of officials or

others from the duty of obedience

to the law which governs others or from the jurisdiction of the

ordinary tribunals.”5

In second meaning of rule of law, Dicey explains that everyone is equal before law,

irrespective of rank, whether official or individual,

shall be subject to law. Dicey has often been

interpreted as requiring that there be actual equality

in terms of legal rights, powers and capacities.There

is no need for extraordinary tribunals or special

courts to deal with cases of Government and its

4 Dicey, the law of the constitution(1885), PP 202-3

5 Dicey, the law of the constitution (1885), PP 202-3






servants. Dicey accepted that administrative

authorities are exercising 'judicial' functions though

they are not 'courts'.

Third feature of Dicey‟ definition of rule of law:

“the general principles of the

constitution (as for example the right to personal liberty, or the

right of public meeting) are with

us [the English] the result of

judicial decisions determining

the rights of private persons in

particular cases brought before

the Courts.6

Dicey‟ third meaning of the rule of law

contrasts the English legal system. Professor Dicey

says that Rights such as personal liberty, freedom

from arrest are the result of judicial decisions in

England. The rights are a result of court judgments

rather than from being enshrined in the Constitution.

The Constitution is a consequence of the rights of the

individuals. Thus, Courts are the guarantors of the liberty. Rights would be secured more adequately if

they were enforceable in courts rather than just being

written in the Constitutional document. Mere

incorporation in a written constitution is of no use in

the absence of effective remedies of protection and

enforcement. Dicey implies that the rule of law is

safeguarded just by the common law as distinct from

statute or constitution.

Rule of law is not thoroughly explained by

professor Dicey. He prescribed just three principles

and missed key features of rule of law. Jeffrey Jo

well stated that rule of law contains several values

such as legality, accountability, certainty, due process

and access to justice. There are no any important

values in Dicey, rule of law.7

United Nations Security Council defines the rule of

law:

6 Dicey, A.V. (1885), Introduction to the Study of the

Law of the Constitution. London: Elibron

Classics, 1959. 7 Jeffrey Jo well, the rule of law and its underlying

values

“The rule of law… refers to a principle of

governance in which all persons, institutions

and entities, public and private, including

the State itself, are accountable to laws that

are publicly promulgated, equally enforced

and independently adjudicated, and which

are consistent with international human

rights norms and standards It requires, as

well, measures to ensure adherence to the

principles of supremacy of law, equality before the law, accountability to the law,

fairness in the application of the law,

separation of powers, participation in

decision-making, legal certainty, avoidance

of arbitrariness and procedural and legal

transparency”8

This definition of rule of law prescribed that

main features of rule of law such as supremacy of

law, equality before the law, accountability to the

law, fairness in the application of the law and the

protection of fundamental rights of citizens and the

protection of civil and criminal justice in all cases.

This is the best definition of rule of law because it

covers all aspects of rule of law. In a similar vein,

The World Justice Project (WJP)defines the rule of

law as:

“a rules-based system in which

the following four universal

principles are upheld: (1) the government and its officials and

agents are accountable under the

law; (2) the laws are clear,

publicized, stable, and fair, and

protect fundamental rights,

including the security of persons

and property; (3) the process by

which the laws are enacted,

administered, and enforced is

accessible, fair, and efficient;

and (4) access to justice is provided by competent,

independent, and ethical

adjudicators, attorneys or

8 [United Nations Security Council (2004)The Rule of

Law and Transitional Justice in Conflict

and Post Conflict Societies: Report of the Secretary

General, August 23, 2004,






representatives, and judicial

officers who are of sufficient

number, have adequate

resources, and reflect the

makeup of the communities

they serve”9

Both the definitions of rule of law explained by

United National Council and World Justice Project

are complete definitions and co-relative, and

connected with each other. These are the best one as

compare to Dicey‟ concept of rule of law.The reason

is that Dicey, instead of not just disallowing arbitrary

powers, has also insisted that administrative

authorities should not be given discretionary powers.He failed to distinguish between 'arbitrary

powers' to 'discretionary powers'.The concept of rule

of law described by Dicey was not completely

accepted even in his era. There is a lot of criticism

onDicey‟ rule of law while on the other hand,

definition of rule of law by WJP and UNC are

accepted all over the world as regarded as complete

and best definitions of rule of law. After considering

the definitions of rule of law, there are some main

features of rule of law. It is necessary to explain those

features for the purpose of best understanding of rule

of law and that are following:

2. Major features of rule of law

According to above mentioned definitions there

are some important features and principles of the rule

of law:

2.1 No one above the law.

The supremacy of law, which means that all

persons (individuals and government) are subject to

law. That people should be ruled by the law and obey

it

2.2 All are equal in the eyes of the law:

All shall be equal before the law:Law must be

based on the principles of equality. Equality means that all the persons must be subjected to the same

9William H. Neukom, The World Justice Project in

2007, (WJP), Agrast, Botero, and Ponce (2010)].

system of courts and must be governed by the same

law.

2.3 Laws must be clear and unambiguous:

The law should be such that people will be able

to be guided by it.The law must be publicized in a

manner that it may be known and understood by ordinary People.It must be certain in the sense that it

must give complete awareness about what is right

and what is wrong so that a person can regulate

his/her conduct accordingly.

2.4 The Principle of Accountability:

Everybody must be under the same law and no

matter how high a person is, the law must always be

above him. No special privileges and immunities should be given to any special person. Everybody

must be accountable for the violation of law and must

be accountable to the ordinary system of courts.

2.5 Fundamental rights must be protected:

The fundamental rights of the people must be

protected in every situation. Rule of law means that

the law should be based on the concerns of the Human Rights. If a law violates human rights of the

people, then there is no rule of law.

Today these principles are commonly associated

with the documents of human rights, English Magna Carta, the U.S. Declaration of Independence, the U.S.

Constitution, the French Declaration of the Rights of

the Man and the Citizen, and the Universal

Declaration of Human Rights.

3. Human Rights

Human rights are commonly known as

inalienable fundamental rights to which a person is

inherently entitled because she or he is a human

being. Human rights are those fundamental freedoms

and entitlements that each person possesses by virtue

of noting more than their status as a human being. To

say that there is a right to life, is to say that each person, man or woman, boy or girl, of whatever race

or color, religion or background, has the same basic

entitlement to be allowed to live as every other

person. David Hoffman states “that the word human

stresses that these rights are based on the basic

equality of all people. They are all rights that

http://www.ourcivilisation.com/cooray/btof/chap181.htm






everyone shares, no one is born with more of a right

to life than anybody else.” 10 This idea has been

supported also by Steve Foster, stated that human

rights uphold the basic dignity of the individual as a

human being; and they should not, therefore, be

subject torture or other ill treatment, or to slavery as

such treatment is an affront to human dignity.11

In other words, we can say that human rights are the basic rights and freedoms to which all humans are

considered to be entitled, often held to include the

rights to life, liberty, equality and a fair trial, freedom

from slavery and torture, and freedom of thought and

expression. Scholars classified human rights into two

categories such as Universal and Inalienable, and

Equal and non-discriminatoryhuman rights.

3.1 Universal and inalienable

The universality of human rights has been recognized by the United Nations as inherent in the

very nature of human beings. The principle of

universality has been adopted by the Universal

Declaration of human rights in 1948. Religious

Scholars states that human rights are universal

because they are derived from divine revelation or

natural law while on the other hand, seculars say that

they are universal because they have a special claim

to protection, due to democratic concepts of popular

sovereignty and equality before law.

Vienna World Conference on Human Rights explained that States are bound for the promotion and

protection of all human rights and fundamental

freedoms, regardless of their political, economic and

cultural systems. 12 Human rights are inalienable

because they are natural and inherent to human being. They should not be snatched and taken away, except

in specific situations and according to due process.

3.2 Equal and non-discriminatory:

10 David Hoffman and John Rowe Q.C., An Introduction to the human rights act 1998,p.3 11 Steve Foster, Human rights and Civil Liberties,

second edition, p 6 12 Vienna declaration of the world conference on

human rights 1993

This classification that we will examine is the idea that human rights and civil liberties are a

necessary product of the notion of equality. Many

human rights in domestic and international treaties

are based on the idea of equality and freedom from

discrimination. Rights must be enjoyed free from

discrimination on a variety of grounds such as sex,

race and religion etc. Ronald Dworkin believes that

every state has a duty to treat all of its citizens with

equal rights and respect without any kind of

discrimination.13

This principle has mentioned in all major human

rights treaties and provides the central theme of some

of international human rights conventions such as CERD 14 and CEDAW. 15 The principle of non-

discrimination is complemented by the principle of

equality, as stated in Article 1 of the Universal

Declaration of Human Rights: “All human beings are

born free and equal in dignity and rights.”16 Treaties

such as the European Convention on Human Rights

advocate that the rights contained in the convention

are available to all, irrespective of personality or

group or sex or race.17 So everybody is entitled to all

human rights equally without any kind of

discrimination.

4. Rule of Law and Human

Rights

Rule of law and human rights are interlinked with each other. Human rights uphold and maintain

the basic tenets of the rule of law. Most international

treaties on human rights stress the fundamental

importance of the protection of such rights in

upholding the rule of law.All main principles and

13 Ronald Dworkin, Taking rights seriously

(Duckworth 1977), See also McColgan, Principle of

equality and protection from Discrimination in

International Human Rights law, 2003 14 International Convention on the Elimination of All

Forms of Racial Discrimination 15 Convention on the Elimination of All Forms of

Discrimination against Women. 16 Universal declaration on human rights, 1948,

Article 1 17 European Convention on Human Rights, Article 14






features of rule law have been vested in almost all

documents of human rights such as the English

Magna Carta, the U.S. Declaration of Independence,

the U.S. Constitution, bill of rights, the French

Declaration of the Rights of the Man and the Citizen,

united nation charter and the Universal Declaration of

Human Rights. Some of them are following:

4.1 Magna Carta

Magna Carta, the Great Charter, is one of the most important documents of human rights in legal

history was signed by King John of England on June

15, 1215 at Runnymede., states that:

“No freeman is to be taken or imprisoned or disseized

of his free tenement or of his liberties or free

customs, or outlawed or exiled or in any way ruined,

nor will we go against such a man or send against

him save by lawful judgment of his peers or by the

law of the land. To no-one will we sell or deny or

delay right or justice”18

Magna Carta became a symbol of the rule of law.

First it explained the liberty of a man, freedom of

every citizen must be protected from arrest and

second everyone is subject to law, there must be

justice in every matter. No above the law and all

subject to law.this idea has also been supported by “Ralph Turner”who explains: “The

Charter…established the basic principle that the rule

of law ensures personal liberty. First, the executive

power must proceed by recognized legal process,

never unlawfully…Second, no one is above the law,

however high his or her status.”19

4.2 Universal Declaration of Human Rights

Universal Declaration of Human Rights, which has been adopted and proclaimed by General

18

Magna Carta, also called Magna Carta Libertatum (the Great

Charter of Freedoms), is an English legal charter, originally issued

in the year 1215. It was written in Latin and is known by its Latin

name. The usual English translation of Magna Carta is Great

Charter. 19 Ralph V. Turner. Magna Carta. Harlow: Pearson,

2003. Pp.1-2

Assembly resolution 217 A (III) of 10 December

1948, states that:

“It is essential, if man is not to be compelled to have

recourse, as a last resort, to rebellion against tyranny

and oppression, that human rights should be

protected by the rule of law”20

The preamble of Universal Declaration of Human Rights states that human rights are to be

protected by the rule of law, except in circumstances

where rebellion against tyranny and oppression is the

only recourse.Rights are empty words in the absence

of a legal and political order in which they can be

realized. The rule of law is the vehicle for the

promotion and protection of all human rights.

Further, Article 7 of Universal Declaration of Human

Rights states as:

“All are equal before the law and

are entitled without any

discrimination to equal protection

of the law. All are entitled to

equal protection against any discrimination in violation of this

Declaration and against any

incitement to such

discrimination”21

It is well accepted that the rule of law and

the maintenance of human rights are connected.

Universal Declaration first states that human rights

must be protected by rule of law and then in article 7,

describes the principle of equality of rule of law that

all persons shall be equal before the courts and

tribunals. Everyone shall be entitled to a fair and

public hearing by a competent, independent and

impartial tribunal established by law. Everyone

charged with a criminal offence shall have the right

to be presumed innocent until proved guilty

according to law.

As the Declaration on the Rule of Law states:

20Universal Declaration of Human Rights, preamble 21Universal Declaration of Human Rights, article 7

http://en.wikipedia.org/wiki/Kingdom_of_England

http://en.wikipedia.org/wiki/Charter

http://en.wikipedia.org/wiki/1215

http://en.wikipedia.org/wiki/Latin






“All persons, institutions and

entities, public and private,

including the State itself, are

accountable to just, fair and

equitable laws and are entitled

without any discrimination to

equal protection of the law”22.

It Improved security of land tenure, for example, particularly for women and marginalized

communities, improved social and economic well-

being, supporting both development and peace and

security. All documents of human rights showed the

importance of rule of law for human rights. Both are

the interlinked with each other, and rule of law

protects the human rights in best way.

5. Rule of law and fundamental

rights in the constitution of

Pakistan, 1973

5.1 Rule of law

Supremacy of the law is a fundamental principle

of the constitution of Pakistan. The rule of law in

every society, plays a vital role in making it

prosperous and fair. The rule of law is a system in

which no one, including government, is above the

law; where laws protect fundamental rights; and

where justice is accessible to all. The rule of law

presupposes the absence of wide discretionary

authority in the rulers, so that they cannot make their own laws but must govern according to the

established laws. Article 25 of the constitution of

Pakistan provides the rule of law as:

(1) All citizens are equal before law and are

entitled to equal protection of law.

(2) There shall be no discrimination on the

basis of sex.

22UNGA Declaration on the Rule of Law at the

National and International Levels, 2012

(3) Nothing in this Article shall prevent the

State from making any special provision for

the protection of women and children.23

According to the article 25, all are equal

before the law and no above the high, what authority

they have, they accountable to law. There is no

discrimination on the bases of sex, case, religion and

nationality. It protects the fundamental rights of

citizens, equal protection for children and women.

State will do best for the protection of their rights.

Articles 8- 28 of the constitution of Islamic

republic of Pakistan provides the fundamental rights

of its citizens, so the rule of law is also the

fundamental right of the citizens of Pakistan and it is

the responsibility of the state to protect that rightand

other fundamental rights that are following:

5.2 Fundamental rights in the constitution of

Pakistan:

Human rights which are known as Fundamental

Rights has been provided in the Constitution of

Islamic Republic of Pakistan. Articles 8 to 28 of the

constitution deal with all fundamental rights provided

to the citizens of Pakistan. One by one article has

been mentioned here such as:

Article 8:No any law in the state of Pakistan shall be

constituted against the fundamental rights of the

citizens, if any law has been made against the interest

of citizens, it must be null and void.24

Article 9:No person shall be deprived of life or

liberty, save in accordance with law.This right is the

most important to all fundamental rights. It is the

basis of the rule of law. It declares that a person

cannot be deprived of his life or liberty except in

accordance with law.25

Article 10:Safeguard as to arrest and detention.All

arrested person must be informed of grounds of their arrest, they have right to consult and defended by

lawyer of their choice, Right of fair trial under this

23 Constitution of the Islamic Republic of Pakistan, 1973– Article 25

24Constitution of Islamic Republic of Pakistan,

Article: 8 25Ibid..., Article. 9






article. Every person who is arrested and detained in

custody shall be produced before a Magistrate within

a period of twenty-four hours of his arrest.26

Article 11:Slavery, forced labor is prohibited and no

child under age of 14 year be employed in factory

and mines.The constitution in conformity with the

wish of the prophet has declared slavery altogether

illegal. So Slavery is forbidden and all from of forced

labor are prohibited under constitution of 1973. No

person can be forced to word against his will and no

children below 14 years of age can be engaged in any

labor works.27

Article 12:There shall be protection against

retrospective punishment.Under the constitution no

law, shall authorize the punishment of a person for an

act or omission that was not punishable by law at the

time of act or omission.28

Article 13:There shall be protection against double

punishment and self-incrimination,Double jeopardy

means prosecution or sentencing twice for the same

offence and self-incrimination means to enforce a person to become witness against himself.

Constitution of Pakistan has negated concepts of

double jeopardy and self-incrimination.29

Article 14:The dignity of man and, subject to law, the privacy of home, shall be inviolable. No person shall

be subjected to torture for the purpose of extracting

evidence.30

Article 15:Freedom of movement to everyone,every citizen shall have the right to remain in, and, subject

to any reasonable restriction imposed by law in the

public interest, enter and move freely throughout

Pakistan and to reside and settle in any part thereof.31

Article 16:Freedom of assembly for all citizens,

every citizen shall have the right to assemble

peacefully and without arms, subject to any

26Ibid..., Article. 10 27Ibid..., Article. 11 28Ibid..., Article. 12 29Ibid..., Article. 13 30Ibid..., Article. 14 31Ibid..., Article. 15

reasonable restrictions imposed by law in the interest

of public order.32

Article 17:Freedom of association for all citizens.

Every citizen in Pakistan has right to form

associations or unions provided that such steps are

taken within the limits. Every citizen of Pakistan not

being in the service of Pakistan shall have right to

from or be member of a political party.33

Article 18:Every citizen has the right to enter upon

any lawful profession or occupation and to conduct

any lawful trade or business. There shall be freedom

of trade, business and profession for all citizens.34

Article 19:Freedom of speech for all citizens. Every

citizen of Pakistan shall have freedom of speech as

well as expression. Freedom of speech and

expression is the major fundamental right of the

people of Pakistan.35

Article 20:All citizens shall have right to have access

to information in all matters of public importance

under article, 36

Article 21:Freedom to profess religion and to manage

religious institution in country. every citizen shall

have the right to profess, practice and propagate his

religion; and every religious denomination and every

sect thereof shall have the right to establish, maintain

and manage its religious institutions.37

Article 22:No person shall be compelled to pay any

special tax for the support of propaganda of the

religion other than his own.Safeguard against the

taxation for the purposes of any particular religion,38

Article 23:Safeguard as to educational institutes in

respect of religion. The constitution provides for

safeguards in respect of religious educational

institution. No person will be compelled to receive

religious instruction in religion other than his own.39

32Ibid..., Article. 16 33Ibid..., Article. 17 34Ibid..., Article. 18 35Ibid..., Article. 19 36Ibid..., Article. 20 37Ibid..., Article. 21 38Ibid..., Article. 22 39Ibid..., Article. 23






Article 24: All citizens have right to acquire, hold

and dispose of property in any part of Pakistan.

Protection of property rights of owners.It lays down

that no person will be deprived of his property save

in accordance with law. This right protects the citizen

against arbitrary expropriation of deprivation of their

property, except in accordance with law.40

Article 25:All citizens are equal and there shall be no

discrimination on bases of sex and protection of

women and children. Free and compulsory education

to all children of age 5 to 16 by Government.41

Article 26:No discrimination in respect of access

topublic places.Every citizen irrespective of his race,

religion, caste, sex, place of birth has right to access

to all places of public entertainment or resort.

However special provisions could be made for

women and children.42

Article 27:Safeguard against discrimination in

services. If a citizen is otherwise qualified for

appointment in the service of Pakistan, he cannot be

refused appointment merely on the ground of his race, religion, caste, sex, residence, or place of birth.

This right is, however, subjected to regional quotes

for sometimes.43

Article 28:All citizens have right to preserve their particular language, script and culture.This article

guarantee that if any section of citizens has any other

distinct language of its own, it shall have the right to

preserve and promote it.44

6. Current situation of rule of

law in Pakistan.

The present position rule of law is extremely

weak in Pakistan. Pakistan is facing its greatest

challenge in the face of growing domestic insecurity,

suffering with widespread prevailing corruption, violation of fundamental rights, inefficiency political

influences, inordinate delays, costly and prolonged

litigation, no access to justice, frivolous law suits and

40Ibid..., Article.24 41Ibid..., Article. 25 42Ibid..., Article. 26 43Ibid..., Article. 27 44Ibid..., Article. 28

absence of order and security, regulatory

enforcement, civil justice and criminal justice. The

current situation of rule of law in Pakistan is

troublesome and most devastating in the 69 year´s

history of Pakistan. 45 Domestic security due to

terrorism has become a burning issue and terrorism is

a great challenge for the state, which has already

caused thousands of deaths almost in all provinces of

Pakistan. This further leadsan economic crisis with

higher cost of living and shortages of foods and necessities of life including increasing energy

shortages.

6.1 Main reasons of the weak situation of rule

of law in Pakistan:

Why rule of law has become a burning issue in

the state of Pakistan? what are the main problems

which affecting the rule of law? There are some reasons which resulted in the very bad situation of

rule of law. I discuss them here with the explanation

of the main features of rule of law.

6.1.1 Laws are not much clear and unambiguous.

Statutes of Pakistan are much ambiguous not

clear. While on the other hand, low literacy rate is

one of the most devastating problem which Pakistan

facing today. Laws in Pakistan are written in such a

way that is not accessible to the majority of the

population of Pakistan. The law should be such that

people will be able to be guided by it. The laws in Pakistan are not publicized in a manner that it may be

known and understood by ordinary People. There

must be awareness of the existing laws among the

masses. Unfortunately, all laws have been drafted in

the English language while the national language is

Urdu and state also cannot concentrate to this.

Pakistan has a low literacy rate;Pakistan has become

one of the lowest country of the world in literacy

rates. According to (UNESCO), Pakistan has 55 per

cent literacy and Pakistan has got rank of 160th in all

over the world.46 Therefore, not many are aware of existing laws and the rights given to them by

constitution.

45 World justice project, rule of law assessment index

2015 46 The United Nations Educational, Scientific and

Cultural Organization,2015






Other reason is the conflict between the

secular law and religious law. Laws has been divided

into two classifications such as old British colonial

laws and Islamic laws. There are some laws which

are against Islam. Religious scholars always attack

them, Federal Shari-at Court declare them un-Islamic

but the problem is that Supreme Court keep them in

pendency, so that laws are always hanging. No clear

result has been seen in the past and present. The main

example is that Punjab government has, recently, passed the law “Protection of women against

violence act 2016”47 and religious scholars protested

that act because it is against the Islamic law. Now

nobody believe that what is the legal status of that

act.So, this shows a lot of ambiguous of laws and

statutes in Pakistan. A common man does not have

approach to them. So, this is the first problem of

troublesome situation of rule of law in Pakistan.

6.1.2 All are not equal before law:

No one above the law. The supremacy of law,

which means that all persons (individuals and

government) are subject to law.The law must apply to

all equally. No one must be seen to be above the law.

A famous Justice (retd) in Pakistan, named as

Fakhrunisa Khokhar, once said that “The rule of law must be applied equally to all persons so as to ensure

that all individuals enjoy equal rights irrespective of

race, colour, creed or sex. Justice means equality of

all persons in their legal and human rights.” But this

is a problem in Pakistan, no doubt that it is written in

constitution that all are equal before law but practice

is contrary to law, in last five years, there many cases

in Pakistan in which rich and poor not given equal

rights. Rich were always given preferences over poor,

politicians or government rulers on their own motion

infringe the rights of common people 48 . A recent example is that the present rules has killed some

innocent people in Lahore Pakistan, but no any action

had been taken against them and they are still in

action in their government job.In Pakistan, a lot of

FIR and cases on the politicians and rich people, but

47“Protection of women against violence act 2016, Punjab, Pakistan 48 World justice project, rule of law assessment index

2015. The World Justice Project® (WJP) is an

independent, multidisciplinary organization working

to advance the rule of law around the world.

they move from one place to another freely and no

one did anything against them, on the other hand, the

lives of the common men are not saved,and

punishments having hanged also are always given to

the poor people, then said, it is the law of Pakistan,

shown the judiciary is independent and decisions has

been delivered according to law. One question to

them, how much cases has been decided by judiciary

against the rich and rulers, they will always ask, no

prove against them. Un-equality of citizens before law is the second reason of the bad situation of rule

of law in Pakistan.

6.1.3 No protection of rights of the citizens:

Third reason of the weak situation of rule of law in Pakistan is that fundamental rights of the citizens has

not been protected in a manner as needed. Current

position of human rights in Pakistan especially in

Karachi, Fata and Balochistan is very bad. The most

fundamental principle of the constitution of Pakistan

is that the fundamental rights of the citizens of

Pakistan must be protected at all costs. They provide

the protection to the citizens from a lack of justice or

when the justice is delayed, allow people to practice

their religions and manage religious institutions,

safeguard property, provide a right to basic education, protection from discrimination in respect

of access to public places, so on and so forth.

Nowadays human situation in Pakistan is extremely

serious. According to the international reports of

human rights, all human rights are claimed to be

violated in Pakistan.Pakistan is vulnerable on rights

of minorities, the rights of women, the rights of

children, independence of judiciary, arbitrary

detention, extra-judicial and summary execution,

torture and custodial deaths.49For example Dr Sher

Shah Syed stated that almost25,000 to 30,000 women die every year in Pakistan due to complications in

delivery and some other problems of pregnancy.50 In

spite of that the fundamental rights are written in the

constitution, but they are not much saved as must be,

the position of rights are not so good nor so bad but

49 international and domestic human rights NGOs,

the international and domestic press, and the

documentation of the UN human rights , reports 50Dr Sher Shah Syed, secretary general of the

Pakistan Medical Association,.






reason able according to rule of law assessment.51

The Pakistan media also does not play the vital role

for the human rights of a common man.Other main

issue in Pakistan which affects the rights of citizens is

Order and security situation which has become one of

the devastating issues which has affected the rights of

citizens largely in Pakistan.

6.1.4 No Proper accountability at the

public service level

According to rule of law, all individuals who is either

citizen or ruler must be held accountable.Everybody

must be accountable for the violation of law and must

be accountable to the ordinary system of courts. But

unfortunately, this is also not good in Pakistan, public officers never been taken into consideration of

accountability, there are a lot of cases of murders,

money laundering and corruption, but no action has

been taken against them.52 Recently prime minister of

Pakistan involved in Panama Leaks, is the main

example of none accountability at the public

level.Many other Rulers also involved in corruption

in Panama Leaks but no action has been taken against

them.53 Pakistan is the 117 least corrupt nation out of

175 countries, according to the 2015 Corruption

Perceptions Index reported by Transparency International. Government servants, positions and

other people involves in the corruption but no

accountability there. All these persons carrying on

their position in government but no action has been

taken against them.This is another reason of bad

position of rule of law in Pakistan.

6.1.5 No accessible and cheaper justice

without delay:

According to rule of law, accessible and cheaper

justice must be available to every citizen. Citizens


2015 52 World justice project, rule of law assessment index

2015 53 Panama Leaks 2016,The Panama Papers are a set of 11.5 million leaked documents detail that detail

financial and attorney–client information for more

than 214,000 offshore companies associated with the

Panamanian law firm and corporate

service provider, Mossack Fonseca.

must know that they have a legal recourse to a

grievance. For this it is important that justice must

not only be done but also seen to be done. This

famous principle of jurisprudence was laid down in a

benchmark case54 „Not only must the justice be done,

it must also be seen to be done.” In Pakistan, a very

expensive procedure for justice, a common man does

not have an approach to go to the courts. This is the

reason, Pakistan has got 91 position in this regard out

of 102 countries of the world according to rule of law assessment. 55 The survey also evaluated the

dispensation of justice: for civil justice Pakistan was

ranked 91 and for criminal justice 94. Ideally, a

justice system must be accessible, affordable, free of

corruption and inordinate delay. But Pakistan does

not have a better system of dispensation of civil

justice and criminal justice. Pakistan has become a

center for sectarianism, militant outfits and terrorism

and has a large amount of corruption. They have

become a threat to the peace-loving citizens of

Pakistan. In this situation, how laws shall be enforced and justice will be prevailed and every citizen will

have the easy access to justice.Dale Carpenter, an

American legal commentator, says “If citizens cannot

trust that laws will be enforced in an evenhanded and

honest fashion, they cannot be said to live under the

rule of law. Instead, they live under the rule of men

corrupted by the law.” 56 So this is the most

devastating and embarrassing situation for Pakistan

and embarrassing reason of weak position of rule of

law in Pakistan.

54R v Sussex Justices [1924] 55 World justice project, rule of law assessment index

2015 56Dale Carpenter. Flagrant Conduct: The Story of

Lawrence v. Texas






7. A comparative studyof rule of law in

Pakistan and other countries

If we try to compare the rule of law in Pakistan

with other countries, then we know that Pakistan has

a more bad situation of rule of law than other

countries. According to the assessment of World

Justice Project (WJP) 2015, Pakistan is at number 98

out of 102 countries of the world in the position of

rule of law. World justice project made an assessment of the rule of law in the 102 countries and declared

the positions of the countries in which, Denmark is at

one, United Kingdom at 12, United States of America

at 19, India at 67, while Pakistan at 98 out of 102.

According to the WJP, this assessment of rule of law

was made on the bases of nine factors including

constraints on government powers, absence of

corruption, open government, fundamental rights,

order and security, regulatory enforcement, civil

justice and criminal justice. 57 We always try to

compare everything of Pakistan with India, but it is drastic to say that India has got 67 position out of 102

countries which is much better than Pakistan.

According to this report, these nine factors are not

much stabled in Pakistan. India 31 points is ahead

than Pakistan with respect of rule of law. Pakistan is

more behind than other countries and it has a mush

troublesome position of rule law as compare to

others. There is overall position of rule of law in

Pakistan according to World Justice Project, that

states (Table 1).


2015






Table 1: Overall Position of Rule of Law in Pakistan According to World Justice Project 2015

This is the scoring points table of Pakistan in the

WorldJustice Project 2015, rule of law on the bases

of nine factors which is too much low as compare to

the other countries of the world. In World Justice Project assessment, Fundamental Rights/ human

rights has also been taken as one of the factor. The

current position of fundamental rights is also not so

good as compare to other countries, Pakistan has got

92 rank out of 102 countries. This Factor measures

the protection of fundamental human rights,

including effective enforcement of laws that ensure

equal protection, the right to life and security of the

person, due process of law and the rights of the

accused, freedom of opinion and expression, freedom

of belief and religion, the right to privacy, freedom of assembly and association, and fundamental labor

rights, including the right to collective bargaining, the

prohibition of forced and child labor, and the

elimination of discrimination.58

According to the WJP, Fundamental Rights

ranking, it has been observed that 102 countries have

been selected for the ranking wherein, Finland is on

the top of the ranking list while securing score of

0.91, Denmark stands on 2nd with score 0.90,

Germany on 6th with 0.87 score, UK on 14th with

0.79 score, United States of America with 0.73 score

stands on 26th last but Pakistan stands on 92nd number with 0.39 score. Turkey, Egypt, China and

Iran are below in the ranking than that of Pakistan.

This is the comparison of rule of law in Pakistan and

other countries of the world by referring the World

Justice Project rule of law assessment 2015. So the

current position rule of law and fundamental rights is


2015

so weak and not much stable in Pakistan as which

needs to make progress in every field of life and get a

good name in the map of the world.

8. Conclusion &

Recommendations

Rule of law is a legal maxim that suggests that

governmental decisions be made by applying known

principles. The phrase introduced into 17th century

and got popularity in the 19th century by British

jurist A. V. Dicey. Rule of law implies that every

citizen is subject to the law. It contradicts the idea

that the ruler is above the law, for example by divine

right. It is well accepted that the rule of law and the

maintenance of human rights are

connected. The Universal Declaration of Human Rights states in its preamble that human rights are to

be protected by the rule of law, except in

circumstances where rebellion against tyranny and

oppression is the only recourse. Ideally, people

should want to follow the law, and trust that legal

processes will provide just outcomes.

It has known that existing condition of rule of

law and human rights in Pakistan is not good nor

stable, it needs improvements so that Pakistan would

get a good name in the map of the world. The

absence of rule of law has often been cited as key

hurdle for good governance in Pakistan. It is a

fundamental notion for a democratic process and

development. My recommendation is that the

advocacy of rule of law and its enforcement is not

merely and exclusively the responsibility of the state but in fact, all institutions of the state and society

need to come together to ensure and promote this

Factor Trend Factor Score Regional Rank Income Rank Global Rank

Constraints on Government

Powers

0.49 3/6 13/25 67/102

Absence of Corruption 0.35 4/61 7/25 83/102

Open Government 0.45 5/6 19/25 83/102

Fundamental Rights 0.39 5/6 24/25 92/102

Order and Security 0.3 6/6 24/25 101/102

Regulatory Enforcement 0.36 6/6 25/25 99/102

Civil Justice 0.4 4/6 20/25 91/101

Criminal Justice 0.31 5/6 22/25 94/102

Overall Score 0.38/100 25/25 5/6 98/102






essential dictum for upholding order, stability,

tranquility and governance.

My other recommendation is that Pakistan needs

to stable and improve some legal systems and

principles such as a Just Legal Framework, public

order, principle of accountability and lawfulness

where laws are consistent with international

human rights norms and standards, where laws are

enforced equitably; where the fundamental rights of

the citizens are protected, where criminal and civil

justice are cheaper and easily accessible, where

citizens and government servants are legally

accountable for their actions and where the judiciary

is independent and free from political influence.

To sum up, I recommend establishingsuch a

system of law, where everyone is bound to law and

obey to law. That system is called the “Rule of Law”.

References

1.AW Bradley and KD Ewing, constitutional and

administrative law, 14th edition, p.p 95-97 And 12th

edition p.p. 104-5

2.Bo Li, a New York-based attorney, in his essay,

“What Is Rule of Law.

3.Constitution of Islamic Republic of Pakistan, 1973,

Articles 8-28

4.David Hoffman and John Rowe Q.C., An

Introduction to the human rights act 1998,p 3

5.Dicey, A.V. (1885), Introduction to the Study of the

Law of the Constitution. London: Elibron, Classics,

1959, pp 202-3

6.Hilaire Barnett, Constitutional and administrative

law, 5th edition, p.p. 88

7.Jeffrey Jo well, the rule of law and its underlying

values

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(the Great Charter of Freedoms), is an English legal

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written in Latin and is known by its Latin name. The

usual English translation of Magna Carta is Great

Charter.

9.Panama Leaks 2016, The Panama Papers are a set

of 11.5 million leaked documents detail that detail

financial and attorney–client information for more

than 214,000 offshore companies associated with the

Panamanian law firm and corporate

service provider, Mossack Fonseca.

10.Steve Foster, Human rights and Civil Liberties,

second edition, p 6

11.United Nations Security Council (2004), The Rule

of Law and Transitional Justice in Conflictand

Post Conflict Societies: Report of the Secretary

General, August 23, 2004,

12.Vienna declaration of the world conference on

human rights 1993

13.William H. Neukom, The World Justice Project in

2007, (WJP), Agrast, Botero, and Ponce (2010)]

14.World justice project, rule of law assessment index 2015. The World Justice Project® (WJP) is an

independent, multidisciplinary organization working

to advance the rule of law around the world.