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 – saddaqatali666@gmail.com

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 17 th 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 IDL - International Digital Library

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

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Dicey, A.V. (1885), Introduction to the Study of the Law of the Constitution. London: Elibron 1|P a g e

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International e-Journal For Education And Research-2017 “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

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.

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

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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

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

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International e-Journal For Education And Research-2017 “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

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.

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

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:

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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 IDL - International Digital Library

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[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, 3|P a g e

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International e-Journal For Education And Research-2017 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 9

William H. Neukom, The World Justice Project in 2007, (WJP), Agrast, Botero, and Ponce (2010)].

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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 4|P a g e

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International e-Journal For Education And Research-2017 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.

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 nondiscrimination 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

3.2 Equal and non-discriminatory:

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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 IDL - International Digital Library

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 5|P a g e

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International e-Journal For Education And Research-2017 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

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.

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As the Declaration on the Rule of Law states:

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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.

Ralph V. Turner. Magna Carta. Harlow: Pearson, 2003. Pp.1-2 IDL - International Digital Library

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Universal Declaration of Human Rights, preamble Universal Declaration of Human Rights, article 7 Copyright@IDL-2017

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International e-Journal For Education And Research-2017 “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 wellbeing, 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.

(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 24 22

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Constitution of Islamic Republic of Pakistan, Article: 8 25 Ibid..., Article. 9 7|P a g e

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International e-Journal For Education And Research-2017 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

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

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

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

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International e-Journal For Education And Research-2017 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

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.

40

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

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World justice project, rule of law assessment index 2015 46 The United Nations Educational, Scientific and Cultural Organization,2015 9|P a g e

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International e-Journal For Education And Research-2017 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

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. 49 For 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

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.

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international and domestic human rights NGOs, the international and domestic press, and the documentation of the UN human rights , reports 50 Dr Sher Shah Syed, secretary general of the Pakistan Medical Association,.

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International e-Journal For Education And Research-2017 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

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.

No accessible and cheaper justice without delay:

According to rule of law, accessible and cheaper justice must be available to every citizen. Citizens 51

World justice project, rule of law assessment index 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.

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R v Sussex Justices [1924] World justice project, rule of law assessment index 2015 56 Dale Carpenter. Flagrant Conduct: The Story of Lawrence v. Texas 55

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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).

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International e-Journal For Education And Research-2017 Table 1: Overall Position of Rule of Law in Pakistan According to World Justice Project 2015 Factor Trend Factor Score Regional Rank Income Rank Global Rank Constraints on Government 0.49 3/6 13/25 67/102 Powers 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 This is the scoring points table of Pakistan in the so weak and not much stable in Pakistan as which WorldJustice Project 2015, rule of law on the bases needs to make progress in every field of life and get a of nine factors which is too much low as compare to good name in the map of the world. the other countries of the world. In World Justice Project assessment, Fundamental Rights/ human 8. Conclusion & rights has also been taken as one of the factor. The Recommendations current position of fundamental rights is also not so good as compare to other countries, Pakistan has got Rule of law is a legal maxim that suggests that 92 rank out of 102 countries. This Factor measures governmental decisions be made by applying known the protection of fundamental human rights, principles. The phrase introduced into 17th century including effective enforcement of laws that ensure and got popularity in the 19th century by British equal protection, the right to life and security of the jurist A. V. Dicey. Rule of law implies that every person, due process of law and the rights of the citizen is subject to the law. It contradicts the idea accused, freedom of opinion and expression, freedom that the ruler is above the law, for example by divine of belief and religion, the right to privacy, freedom of right. It is well accepted that the rule of law and the assembly and association, and fundamental labor maintenance of human rights are rights, including the right to collective bargaining, the connected. The Universal Declaration of Human prohibition of forced and child labor, and the Rights states in its preamble that human rights are to elimination of discrimination.58 be protected by the rule of law, except in According to the WJP, Fundamental Rights circumstances where rebellion against tyranny and ranking, it has been observed that 102 countries have oppression is the only recourse. Ideally, people been selected for the ranking wherein, Finland is on should want to follow the law, and trust that legal the top of the ranking list while securing score of processes will provide just outcomes.

0.91, Denmark stands on 2nd with score 0.90, It has known that existing condition of rule of Germany on 6th with 0.87 score, UK on 14th with law and human rights in Pakistan is not good nor 0.79 score, United States of America with 0.73 score stable, it needs improvements so that Pakistan would stands on 26th last but Pakistan stands on 92nd get a good name in the map of the world. The number with 0.39 score. Turkey, Egypt, China and absence of rule of law has often been cited as key Iran are below in the ranking than that of Pakistan. hurdle for good governance in Pakistan. It is a This is the comparison of rule of law in Pakistan and fundamental notion for a democratic process and other countries of the world by referring the World development. My recommendation is that the Justice Project rule of law assessment 2015. So the advocacy of rule of law and its enforcement is not current position rule of law and fundamental rights is merely and exclusively the responsibility of the state but in fact, all institutions of the state and society 58 need to come together to ensure and promote this World justice project, rule of law assessment index 2015 IDL - International Digital Library

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International e-Journal For Education And Research-2017 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

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.

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 8.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.

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