You are on page 1of 14

IDL - International Digital Library Of

Education & Research


Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017

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


useful as a means of governing a large and diverse
Most important principle that society should be empire spanning several continents. Over the
governed by law and not by arbitrary action. This centuries, democracies, republics, and other forms of
expresses the importance of constitutional doctrine limited government have adopted this concept as
known as Rule of Law. Rule of law has been necessary to just government. Without the rule of
introducedin 17th century and became famous in 19th law, with a system of justice that is arbitrary, there is
century by British Professor A. V. Dicey. The no fairness, no expectation of retribution toward
concept became familiar in ancient time also and lawbreakers, and no fear that prevents criminal
explained by philosophers such as Aristotle, who behavior. This leads to chaos and anarchy in a
stated as "Law should govern". One aspect of this is society. In France, Dicey observed that there is no
that the government are subject to the same law as rule of law because the government servants were
everybody else, and accountable to law. There is a accountable to a different system of law and common
further principle of equality, that the law should treat man was accounted to another system of law. The
its subjects equally. The law should also treat its differentiation must be rational, just and fair. There
subjects with respect, so the rule of law requires that should not be many agencies to enforce the law but
the law should be capable of being known, only one agency to enforce accountability on the
understood and obeyed by its subjects and should be people.1
applied clearly, public-ally and consistently by
courts.
The rule of law- the idea that we are governed by 1
Dicey, A.V. (1885), Introduction to the Study of the
a set of rules that all are expected to follow. The Law of the Constitution. London: Elibron

IDL - International Digital Library 1|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


1.1 Rule by law and rule of law Rule of law means, in the first place, the
absolute supremacy or predominance of
Further there is a concept rule of law and rule by
regular law as opposed to the influence of
law.2 Rule by law is completely different from rule of
arbitrary power and excludes the existence
law.Rule by law simply means rule by any law
of arbitrariness, of prerogative or even of
which is laid down by the supreme law making
wide discretionary authority on the part of
authority of that country. One is not concerned about
the government. Englishmen are ruled by
what the law is or what its purpose is? In most of the
the law, and by the law alone, a man may
dictatorships and monarchies, there is a set of laws
with us be punishment for a breach of law
through which the justice is administered. But, in
but he can be punished for nothing else.4
such countries, rule of law does not exist.While on
the other hand, The rule of law refers to the In the first meaning of rule of law, dicey
regulation of the relationship between the state and defines the rule of law that law is supreme and no one
individuals by pre-established and knowable above the law, what authority you have, you always
laws. The state, no less than the individuals it bound to law. Rule of law in first meaning says that
governs, must be subject to and obey the law. The 'howsoever high you may be; the Law is above
states obligation to obey the law is central to the you'.Law is the absolute supreme and predominant as
very existence of the rule of law. Without this opposed to influence of arbitrary power or
obligation, there would be no enforceable limit on the discretionary power. In this sense, Dicey contrasted
states power over individuals. 3 The law in our the rule of law with systems of government based on
society is supreme. No one - no politician - no the exercise by those in authority of wide or arbitrary
government is above the law. We are all subject to powers of constraint, such as a power of detention
the law. without trial.A man can be punished by rule of law,
and by nothing else.
1.2 Definitions and Features of Rule of Law
Second feature of Dicey definition of rule of law:
The ideal of rule of law has been formulated in
many ways, both broad and narrow.According to the It means again equality before
narrow meaning, the rule of law means whether the the law, or the equal subjection of
law is applied equally to all or not. According to the all classes to the ordinary law of
broader meaning, the concept of rule of law embraces the land administered by the
human rights standards. Both the rule of law and ordinary law courts, the rule of
human rights standards should be respected, observed law in this sense excludes the idea
and protected. There is much disagreement as to the of any exemption of officials or
values or principles that it embraces. The argument others from the duty of obedience
has often focused on Dicey classic exposition of the to the law which governs others
rule of law, and in particular on the first two or from the jurisdiction of the
meanings he gives to this expression. ordinary tribunals.5
Dicey defines the rule of law: 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
Classics, 1959. interpreted as requiring that there be actual equality
2
Bo Li, a New York-based attorney, in his essay, in terms of legal rights, powers and capacities.There
What Is Rule of Law. and is no need for extraordinary tribunals or special
Dicey, A.V. (1885), Introduction to the Study of the courts to deal with cases of Government and its
Law of the Constitution. London: Elibron
Classics, 1959. 4
Dicey, the law of the constitution(1885), PP 202-3
3
Hitzig v. Canada, 2003 CanLII 30796 (ON CA)
5
Dicey, the law of the constitution (1885), PP 202-3

IDL - International Digital Library 2|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


servants. Dicey accepted that administrative The rule of law refers to a principle of
authorities are exercising 'judicial' functions though governance in which all persons, institutions
they are not 'courts'. and entities, public and private, including
the State itself, are accountable to laws that
Third feature of Dicey definition of rule of law: are publicly promulgated, equally enforced
the general principles of the and independently adjudicated, and which
constitution (as for example the are consistent with international human
right to personal liberty, or the rights norms and standards It requires, as
right of public meeting) are with well, measures to ensure adherence to the
us [the English] the result of principles of supremacy of law, equality
judicial decisions determining before the law, accountability to the law,
the rights of private persons in fairness in the application of the law,
particular cases brought before separation of powers, participation in
the Courts.6 decision-making, legal certainty, avoidance
of arbitrariness and procedural and legal
Dicey third meaning of the rule of law transparency8
contrasts the English legal system. Professor Dicey
says that Rights such as personal liberty, freedom This definition of rule of law prescribed that
from arrest are the result of judicial decisions in main features of rule of law such as supremacy of
England. The rights are a result of court judgments law, equality before the law, accountability to the
rather than from being enshrined in the Constitution. law, fairness in the application of the law and the
The Constitution is a consequence of the rights of the protection of fundamental rights of citizens and the
individuals. Thus, Courts are the guarantors of the protection of civil and criminal justice in all cases.
liberty. Rights would be secured more adequately if This is the best definition of rule of law because it
they were enforceable in courts rather than just being covers all aspects of rule of law. In a similar vein,
written in the Constitutional document. Mere The World Justice Project (WJP)defines the rule of
incorporation in a written constitution is of no use in law as:
the absence of effective remedies of protection and a rules-based system in which
enforcement. Dicey implies that the rule of law is the following four universal
safeguarded just by the common law as distinct from principles are upheld: (1) the
statute or constitution. government and its officials and
Rule of law is not thoroughly explained by agents are accountable under the
professor Dicey. He prescribed just three principles law; (2) the laws are clear,
and missed key features of rule of law. Jeffrey Jo publicized, stable, and fair, and
well stated that rule of law contains several values protect fundamental rights,
such as legality, accountability, certainty, due process including the security of persons
and access to justice. There are no any important and property; (3) the process by
values in Dicey, rule of law. 7 which the laws are enacted,
administered, and enforced is
United Nations Security Council defines the rule of accessible, fair, and efficient;
law: and (4) access to justice is
provided by competent,
independent, and ethical
adjudicators, attorneys or
6
Dicey, A.V. (1885), Introduction to the Study of the
8
Law of the Constitution. London: Elibron [United Nations Security Council (2004)The Rule of
Classics, 1959. Law and Transitional Justice in Conflict
7
Jeffrey Jo well, the rule of law and its underlying and Post Conflict Societies: Report of the Secretary
values General, August 23, 2004,

IDL - International Digital Library 3|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


representatives, and judicial system of courts and must be governed by the same
officers who are of sufficient law.
number, have adequate
resources, and reflect the 2.3 Laws must be clear and unambiguous:
makeup of the communities The law should be such that people will be able
they serve 9 to be guided by it.The law must be publicized in a
Both the definitions of rule of law explained by manner that it may be known and understood by
United National Council and World Justice Project ordinary People.It must be certain in the sense that it
are complete definitions and co-relative, and must give complete awareness about what is right
connected with each other. These are the best one as and what is wrong so that a person can regulate
compare to Dicey concept of rule of law.The reason his/her conduct accordingly.
is that Dicey, instead of not just disallowing arbitrary 2.4 The Principle of Accountability:
powers, has also insisted that administrative
authorities should not be given discretionary Everybody must be under the same law and no
powers.He failed to distinguish between 'arbitrary matter how high a person is, the law must always be
powers' to 'discretionary powers'.The concept of rule above him. No special privileges and immunities
of law described by Dicey was not completely should be given to any special person. Everybody
accepted even in his era. There is a lot of criticism must be accountable for the violation of law and must
onDicey rule of law while on the other hand, be accountable to the ordinary system of courts.
definition of rule of law by WJP and UNC are
accepted all over the world as regarded as complete 2.5 Fundamental rights must be protected:
and best definitions of rule of law. After considering
The fundamental rights of the people must be
the definitions of rule of law, there are some main
protected in every situation. Rule of law means that
features of rule of law. It is necessary to explain those
the law should be based on the concerns of the
features for the purpose of best understanding of rule
Human Rights. If a law violates human rights of the
of law and that are following:
people, then there is no rule of law.
2. Major features of rule of law Today these principles are commonly associated
with the documents of human rights, English Magna
According to above mentioned definitions there Carta, the U.S. Declaration of Independence, the U.S.
are some important features and principles of the rule Constitution, the French Declaration of the Rights of
of law: the Man and the Citizen, and the Universal
2.1 No one above the law. Declaration of Human Rights.

The supremacy of law, which means that all 3. Human Rights


persons (individuals and government) are subject to
law. That people should be ruled by the law and obey Human rights are commonly known as
it inalienable fundamental rights to which a person is
inherently entitled because she or he is a human
2.2 All are equal in the eyes of the law: being. Human rights are those fundamental freedoms
and entitlements that each person possesses by virtue
All shall be equal before the law:Law must be of noting more than their status as a human being. To
based on the principles of equality. Equality means say that there is a right to life, is to say that each
that all the persons must be subjected to the same person, man or woman, boy or girl, of whatever race
or color, religion or background, has the same basic
9 entitlement to be allowed to live as every other
William H. Neukom, The World Justice Project in person. David Hoffman states that the word human
2007, (WJP), Agrast, Botero, and Ponce (2010)]. stresses that these rights are based on the basic
equality of all people. They are all rights that

IDL - International Digital Library 4|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


everyone shares, no one is born with more of a right This classification that we will examine is the
to life than anybody else. 10 This idea has been idea that human rights and civil liberties are a
supported also by Steve Foster, stated that human necessary product of the notion of equality. Many
rights uphold the basic dignity of the individual as a human rights in domestic and international treaties
human being; and they should not, therefore, be are based on the idea of equality and freedom from
subject torture or other ill treatment, or to slavery as discrimination. Rights must be enjoyed free from
such treatment is an affront to human dignity.11 discrimination on a variety of grounds such as sex,
race and religion etc. Ronald Dworkin believes that
In other words, we can say that human rights are every state has a duty to treat all of its citizens with
the basic rights and freedoms to which all humans are equal rights and respect without any kind of
considered to be entitled, often held to include the discrimination.13
rights to life, liberty, equality and a fair trial, freedom
from slavery and torture, and freedom of thought and This principle has mentioned in all major human
expression. Scholars classified human rights into two rights treaties and provides the central theme of some
categories such as Universal and Inalienable, and of international human rights conventions such as
Equal and non-discriminatoryhuman rights. CERD 14 and CEDAW. 15 The principle of non-
discrimination is complemented by the principle of
3.1 Universal and inalienable equality, as stated in Article 1 of the Universal
The universality of human rights has been Declaration of Human Rights: All human beings are
recognized by the United Nations as inherent in the born free and equal in dignity and rights.16 Treaties
very nature of human beings. The principle of such as the European Convention on Human Rights
universality has been adopted by the Universal advocate that the rights contained in the convention
Declaration of human rights in 1948. Religious are available to all, irrespective of personality or
Scholars states that human rights are universal group or sex or race.17 So everybody is entitled to all
because they are derived from divine revelation or human rights equally without any kind of
natural law while on the other hand, seculars say that discrimination.
they are universal because they have a special claim
to protection, due to democratic concepts of popular 4. Rule of Law and Human
sovereignty and equality before law.
Rights
Vienna World Conference on Human Rights
explained that States are bound for the promotion and Rule of law and human rights are interlinked
protection of all human rights and fundamental with each other. Human rights uphold and maintain
freedoms, regardless of their political, economic and the basic tenets of the rule of law. Most international
cultural systems. 12 Human rights are inalienable treaties on human rights stress the fundamental
because they are natural and inherent to human being. importance of the protection of such rights in
They should not be snatched and taken away, except upholding the rule of law.All main principles and
in specific situations and according to due process.
13
Ronald Dworkin, Taking rights seriously
3.2 Equal and non-discriminatory: (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
10
David Hoffman and John Rowe Q.C., An Forms of Racial Discrimination
15
Introduction to the human rights act 1998,p.3 Convention on the Elimination of All Forms of
11
Steve Foster, Human rights and Civil Liberties, Discrimination against Women.
16
second edition, p 6 Universal declaration on human rights, 1948,
12
Vienna declaration of the world conference on Article 1
17
human rights 1993 European Convention on Human Rights, Article 14

IDL - International Digital Library 5|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


features of rule law have been vested in almost all Assembly resolution 217 A (III) of 10 December
documents of human rights such as the English 1948, states that:
Magna Carta, the U.S. Declaration of Independence,
the U.S. Constitution, bill of rights, the French It is essential, if man is not to be compelled to have
Declaration of the Rights of the Man and the Citizen, recourse, as a last resort, to rebellion against tyranny
united nation charter and the Universal Declaration of and oppression, that human rights should be
Human Rights. Some of them are following: protected by the rule of law20

4.1 Magna Carta The preamble of Universal Declaration of


Human Rights states that human rights are to be
Magna Carta, the Great Charter, is one of the protected by the rule of law, except in circumstances
most important documents of human rights in legal where rebellion against tyranny and oppression is the
history was signed by King John of England on June only recourse.Rights are empty words in the absence
15, 1215 at Runnymede., states that: of a legal and political order in which they can be
realized. The rule of law is the vehicle for the
No freeman is to be taken or imprisoned or disseized promotion and protection of all human rights.
of his free tenement or of his liberties or free Further, Article 7 of Universal Declaration of Human
customs, or outlawed or exiled or in any way ruined, Rights states as:
nor will we go against such a man or send against
him save by lawful judgment of his peers or by the All are equal before the law and
law of the land. To no-one will we sell or deny or are entitled without any
delay right or justice18 discrimination to equal protection
of the law. All are entitled to
Magna Carta became a symbol of the rule of law. equal protection against any
First it explained the liberty of a man, freedom of discrimination in violation of this
every citizen must be protected from arrest and Declaration and against any
second everyone is subject to law, there must be incitement to such
justice in every matter. No above the law and all discrimination21
subject to law.this idea has also been supported by
Ralph Turnerwho explains: The It is well accepted that the rule of law and
Charterestablished the basic principle that the rule the maintenance of human rights are connected.
of law ensures personal liberty. First, the executive Universal Declaration first states that human rights
power must proceed by recognized legal process, must be protected by rule of law and then in article 7,
never unlawfullySecond, no one is above the law, describes the principle of equality of rule of law that
however high his or her status.19 all persons shall be equal before the courts and
tribunals. Everyone shall be entitled to a fair and
4.2 Universal Declaration of Human Rights public hearing by a competent, independent and
impartial tribunal established by law. Everyone
Universal Declaration of Human Rights, which charged with a criminal offence shall have the right
has been adopted and proclaimed by General to be presumed innocent until proved guilty
according to law.

18 As the Declaration on the Rule of Law states:


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 20
Ralph V. Turner. Magna Carta. Harlow: Pearson, Universal Declaration of Human Rights, preamble
21
2003. Pp.1-2 Universal Declaration of Human Rights, article 7

IDL - International Digital Library 6|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


All persons, institutions and (3) Nothing in this Article shall prevent the
entities, public and private, State from making any special provision for
including the State itself, are the protection of women and children.23
accountable to just, fair and
equitable laws and are entitled According to the article 25, all are equal
without any discrimination to before the law and no above the high, what authority
equal protection of the law22. 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
It Improved security of land tenure, for example,
citizens, equal protection for children and women.
particularly for women and marginalized
State will do best for the protection of their rights.
communities, improved social and economic well-
being, supporting both development and peace and Articles 8- 28 of the constitution of Islamic
security. All documents of human rights showed the republic of Pakistan provides the fundamental rights
importance of rule of law for human rights. Both are of its citizens, so the rule of law is also the
the interlinked with each other, and rule of law fundamental right of the citizens of Pakistan and it is
protects the human rights in best way. the responsibility of the state to protect that rightand
other fundamental rights that are following:
5. Rule of law and fundamental 5.2 Fundamental rights in the constitution of
rights in the constitution of Pakistan:
Pakistan, 1973 Human rights which are known as Fundamental
Rights has been provided in the Constitution of
5.1 Rule of law Islamic Republic of Pakistan. Articles 8 to 28 of the
constitution deal with all fundamental rights provided
Supremacy of the law is a fundamental principle to the citizens of Pakistan. One by one article has
of the constitution of Pakistan. The rule of law in been mentioned here such as:
every society, plays a vital role in making it
prosperous and fair. The rule of law is a system in Article 8:No any law in the state of Pakistan shall be
which no one, including government, is above the constituted against the fundamental rights of the
law; where laws protect fundamental rights; and citizens, if any law has been made against the interest
where justice is accessible to all. The rule of law of citizens, it must be null and void.24
presupposes the absence of wide discretionary
Article 9:No person shall be deprived of life or
authority in the rulers, so that they cannot make their
liberty, save in accordance with law.This right is the
own laws but must govern according to the
most important to all fundamental rights. It is the
established laws. Article 25 of the constitution of
basis of the rule of law. It declares that a person
Pakistan provides the rule of law as: cannot be deprived of his life or liberty except in
(1) All citizens are equal before law and are accordance with law.25
entitled to equal protection of law. Article 10:Safeguard as to arrest and detention.All
(2) There shall be no discrimination on the arrested person must be informed of grounds of their
basis of sex. 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
Constitution of Islamic Republic of Pakistan,
22
UNGA Declaration on the Rule of Law at the Article: 8
25
National and International Levels, 2012 Ibid..., Article. 9

IDL - International Digital Library 7|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


article. Every person who is arrested and detained in reasonable restrictions imposed by law in the interest
custody shall be produced before a Magistrate within of public order.32
a period of twenty-four hours of his arrest.26
Article 17:Freedom of association for all citizens.
Article 11:Slavery, forced labor is prohibited and no Every citizen in Pakistan has right to form
child under age of 14 year be employed in factory associations or unions provided that such steps are
and mines.The constitution in conformity with the taken within the limits. Every citizen of Pakistan not
wish of the prophet has declared slavery altogether being in the service of Pakistan shall have right to
illegal. So Slavery is forbidden and all from of forced from or be member of a political party. 33
labor are prohibited under constitution of 1973. No
person can be forced to word against his will and no Article 18:Every citizen has the right to enter upon
children below 14 years of age can be engaged in any any lawful profession or occupation and to conduct
labor works.27 any lawful trade or business. There shall be freedom
of trade, business and profession for all citizens.34
Article 12:There shall be protection against
retrospective punishment.Under the constitution no Article 19:Freedom of speech for all citizens. Every
law, shall authorize the punishment of a person for an citizen of Pakistan shall have freedom of speech as
act or omission that was not punishable by law at the well as expression. Freedom of speech and
time of act or omission.28 expression is the major fundamental right of the
people of Pakistan.35
Article 13:There shall be protection against double
punishment and self-incrimination,Double jeopardy Article 20:All citizens shall have right to have access
means prosecution or sentencing twice for the same to information in all matters of public importance
offence and self-incrimination means to enforce a under article, 36
person to become witness against himself. Article 21:Freedom to profess religion and to manage
Constitution of Pakistan has negated concepts of religious institution in country. every citizen shall
double jeopardy and self-incrimination.29 have the right to profess, practice and propagate his
Article 14:The dignity of man and, subject to law, the religion; and every religious denomination and every
privacy of home, shall be inviolable. No person shall sect thereof shall have the right to establish, maintain
be subjected to torture for the purpose of extracting and manage its religious institutions.37
evidence.30 Article 22:No person shall be compelled to pay any
Article 15:Freedom of movement to everyone,every special tax for the support of propaganda of the
citizen shall have the right to remain in, and, subject religion other than his own.Safeguard against the
to any reasonable restriction imposed by law in the taxation for the purposes of any particular religion,38
public interest, enter and move freely throughout Article 23:Safeguard as to educational institutes in
Pakistan and to reside and settle in any part thereof. 31 respect of religion. The constitution provides for
Article 16:Freedom of assembly for all citizens, safeguards in respect of religious educational
every citizen shall have the right to assemble institution. No person will be compelled to receive
peacefully and without arms, subject to any religious instruction in religion other than his own.39

32
Ibid..., Article. 16
33
Ibid..., Article. 17
26 34
Ibid..., Article. 10 Ibid..., Article. 18
27 35
Ibid..., Article. 11 Ibid..., Article. 19
28 36
Ibid..., Article. 12 Ibid..., Article. 20
29 37
Ibid..., Article. 13 Ibid..., Article. 21
30 38
Ibid..., Article. 14 Ibid..., Article. 22
31 39
Ibid..., Article. 15 Ibid..., Article. 23

IDL - International Digital Library 8|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


Article 24: All citizens have right to acquire, hold absence of order and security, regulatory
and dispose of property in any part of Pakistan. enforcement, civil justice and criminal justice. The
Protection of property rights of owners.It lays down current situation of rule of law in Pakistan is
that no person will be deprived of his property save troublesome and most devastating in the 69 years
in accordance with law. This right protects the citizen history of Pakistan. 45 Domestic security due to
against arbitrary expropriation of deprivation of their terrorism has become a burning issue and terrorism is
property, except in accordance with law. 40 a great challenge for the state, which has already
caused thousands of deaths almost in all provinces of
Article 25:All citizens are equal and there shall be no Pakistan. This further leadsan economic crisis with
discrimination on bases of sex and protection of higher cost of living and shortages of foods and
women and children. Free and compulsory education necessities of life including increasing energy
to all children of age 5 to 16 by Government.41 shortages.
Article 26:No discrimination in respect of access 6.1 Main reasons of the weak situation of rule
topublic places.Every citizen irrespective of his race, of law in Pakistan:
religion, caste, sex, place of birth has right to access
to all places of public entertainment or resort. Why rule of law has become a burning issue in
However special provisions could be made for the state of Pakistan? what are the main problems
women and children.42 which affecting the rule of law? There are some
reasons which resulted in the very bad situation of
Article 27:Safeguard against discrimination in rule of law. I discuss them here with the explanation
services. If a citizen is otherwise qualified for of the main features of rule of law.
appointment in the service of Pakistan, he cannot be
refused appointment merely on the ground of his 6.1.1 Laws are not much clear and
race, religion, caste, sex, residence, or place of birth. unambiguous.
This right is, however, subjected to regional quotes
for sometimes.43 Statutes of Pakistan are much ambiguous not
clear. While on the other hand, low literacy rate is
Article 28:All citizens have right to preserve their one of the most devastating problem which Pakistan
particular language, script and culture.This article facing today. Laws in Pakistan are written in such a
guarantee that if any section of citizens has any other way that is not accessible to the majority of the
distinct language of its own, it shall have the right to population of Pakistan. The law should be such that
preserve and promote it.44 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
6. Current situation of rule of must be awareness of the existing laws among the
law in Pakistan. masses. Unfortunately, all laws have been drafted in
the English language while the national language is
The present position rule of law is extremely Urdu and state also cannot concentrate to this.
weak in Pakistan. Pakistan is facing its greatest Pakistan has a low literacy rate;Pakistan has become
challenge in the face of growing domestic insecurity, one of the lowest country of the world in literacy
suffering with widespread prevailing corruption, rates. According to (UNESCO), Pakistan has 55 per
violation of fundamental rights, inefficiency political cent literacy and Pakistan has got rank of 160th in all
influences, inordinate delays, costly and prolonged over the world.46 Therefore, not many are aware of
litigation, no access to justice, frivolous law suits and existing laws and the rights given to them by
constitution.
40
Ibid..., Article.24
41 45
Ibid..., Article. 25 World justice project, rule of law assessment index
42
Ibid..., Article. 26 2015
43 46
Ibid..., Article. 27 The United Nations Educational, Scientific and
44
Ibid..., Article. 28 Cultural Organization,2015

IDL - International Digital Library 9|P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


Other reason is the conflict between the they move from one place to another freely and no
secular law and religious law. Laws has been divided one did anything against them, on the other hand, the
into two classifications such as old British colonial lives of the common men are not saved,and
laws and Islamic laws. There are some laws which punishments having hanged also are always given to
are against Islam. Religious scholars always attack the poor people, then said, it is the law of Pakistan,
them, Federal Shari-at Court declare them un-Islamic shown the judiciary is independent and decisions has
but the problem is that Supreme Court keep them in been delivered according to law. One question to
pendency, so that laws are always hanging. No clear them, how much cases has been decided by judiciary
result has been seen in the past and present. The main against the rich and rulers, they will always ask, no
example is that Punjab government has, recently, prove against them. Un-equality of citizens before
passed the law Protection of women against law is the second reason of the bad situation of rule
violence act 201647 and religious scholars protested of law in Pakistan.
that act because it is against the Islamic law. Now
nobody believe that what is the legal status of that 6.1.3 No protection of rights of the citizens:
act.So, this shows a lot of ambiguous of laws and
statutes in Pakistan. A common man does not have Third reason of the weak situation of rule of law in
approach to them. So, this is the first problem of Pakistan is that fundamental rights of the citizens has
troublesome situation of rule of law in Pakistan. not been protected in a manner as needed. Current
position of human rights in Pakistan especially in
6.1.2 All are not equal before law: Karachi, Fata and Balochistan is very bad. The most
fundamental principle of the constitution of Pakistan
No one above the law. The supremacy of law, is that the fundamental rights of the citizens of
which means that all persons (individuals and Pakistan must be protected at all costs. They provide
government) are subject to law.The law must apply to the protection to the citizens from a lack of justice or
all equally. No one must be seen to be above the law. when the justice is delayed, allow people to practice
A famous Justice (retd) in Pakistan, named as their religions and manage religious institutions,
Fakhrunisa Khokhar, once said that The rule of law safeguard property, provide a right to basic
must be applied equally to all persons so as to ensure education, protection from discrimination in respect
that all individuals enjoy equal rights irrespective of of access to public places, so on and so forth.
race, colour, creed or sex. Justice means equality of Nowadays human situation in Pakistan is extremely
all persons in their legal and human rights. But this serious. According to the international reports of
is a problem in Pakistan, no doubt that it is written in human rights, all human rights are claimed to be
constitution that all are equal before law but practice violated in Pakistan.Pakistan is vulnerable on rights
is contrary to law, in last five years, there many cases of minorities, the rights of women, the rights of
in Pakistan in which rich and poor not given equal children, independence of judiciary, arbitrary
rights. Rich were always given preferences over poor, detention, extra-judicial and summary execution,
politicians or government rulers on their own motion torture and custodial deaths. 49 For example Dr Sher
infringe the rights of common people 48 . A recent Shah Syed stated that almost25,000 to 30,000 women
example is that the present rules has killed some die every year in Pakistan due to complications in
innocent people in Lahore Pakistan, but no any action delivery and some other problems of pregnancy. 50 In
had been taken against them and they are still in spite of that the fundamental rights are written in the
action in their government job.In Pakistan, a lot of constitution, but they are not much saved as must be,
FIR and cases on the politicians and rich people, but the position of rights are not so good nor so bad but

47
Protection of women against violence act 2016,
49
Punjab, Pakistan international and domestic human rights NGOs,
48
World justice project, rule of law assessment index the international and domestic press, and the
2015. The World Justice Project (WJP) is an documentation of the UN human rights , reports
50
independent, multidisciplinary organization working Dr Sher Shah Syed, secretary general of the
to advance the rule of law around the world. Pakistan Medical Association,.

IDL - International Digital Library 10 | P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


reason able according to rule of law assessment. 51 must know that they have a legal recourse to a
The Pakistan media also does not play the vital role grievance. For this it is important that justice must
for the human rights of a common man.Other main not only be done but also seen to be done. This
issue in Pakistan which affects the rights of citizens is famous principle of jurisprudence was laid down in a
Order and security situation which has become one of benchmark case54 Not only must the justice be done,
the devastating issues which has affected the rights of it must also be seen to be done. In Pakistan, a very
citizens largely in Pakistan. expensive procedure for justice, a common man does
not have an approach to go to the courts. This is the
6.1.4 No Proper accountability at the reason, Pakistan has got 91 position in this regard out
public service level of 102 countries of the world according to rule of law
assessment. 55 The survey also evaluated the
According to rule of law, all individuals who is either dispensation of justice: for civil justice Pakistan was
citizen or ruler must be held accountable.Everybody ranked 91 and for criminal justice 94. Ideally, a
must be accountable for the violation of law and must justice system must be accessible, affordable, free of
be accountable to the ordinary system of courts. But corruption and inordinate delay. But Pakistan does
unfortunately, this is also not good in Pakistan, public not have a better system of dispensation of civil
officers never been taken into consideration of justice and criminal justice. Pakistan has become a
accountability, there are a lot of cases of murders, center for sectarianism, militant outfits and terrorism
money laundering and corruption, but no action has and has a large amount of corruption. They have
been taken against them.52 Recently prime minister of become a threat to the peace-loving citizens of
Pakistan involved in Panama Leaks, is the main Pakistan. In this situation, how laws shall be enforced
example of none accountability at the public and justice will be prevailed and every citizen will
level.Many other Rulers also involved in corruption have the easy access to justice.Dale Carpenter, an
in Panama Leaks but no action has been taken against American legal commentator, says If citizens cannot
them.53 Pakistan is the 117 least corrupt nation out of trust that laws will be enforced in an evenhanded and
175 countries, according to the 2015 Corruption honest fashion, they cannot be said to live under the
Perceptions Index reported by Transparency rule of law. Instead, they live under the rule of men
International. Government servants, positions and corrupted by the law. 56 So this is the most
other people involves in the corruption but no devastating and embarrassing situation for Pakistan
accountability there. All these persons carrying on and embarrassing reason of weak position of rule of
their position in government but no action has been law in Pakistan.
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

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
54
of 11.5 million leaked documents detail that detail R v Sussex Justices [1924]
55
financial and attorneyclient information for more World justice project, rule of law assessment index
than 214,000 offshore companies associated with the 2015
56
Panamanian law firm and corporate Dale Carpenter. Flagrant Conduct: The Story of
service provider, Mossack Fonseca. Lawrence v. Texas

IDL - International Digital Library 11 | P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


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).

57
World justice project, rule of law assessment index
2015

IDL - International Digital Library 12 | P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

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

IDL - International Digital Library 13 | P a g e Copyright@IDL-2017


IDL - International Digital Library Of
Education & Research
Volume 1, Issue 3, Mar 2017 Available at: www.dbpublications.org

International e-Journal For Education And Research-2017


essential dictum for upholding order, stability, 9.Panama Leaks 2016, The Panama Papers are a set
tranquility and governance. of 11.5 million leaked documents detail that detail
financial and attorneyclient information for more
My other recommendation is that Pakistan needs than 214,000 offshore companies associated with the
to stable and improve some legal systems and Panamanian law firm and corporate
principles such as a Just Legal Framework, public service provider, Mossack Fonseca.
order, principle of accountability and lawfulness
where laws are consistent with international 10.Steve Foster, Human rights and Civil Liberties,
human rights norms and standards, where laws are second edition, p 6
enforced equitably; where the fundamental rights of
the citizens are protected, where criminal and civil 11.United Nations Security Council (2004), The Rule
justice are cheaper and easily accessible, where of Law and Transitional Justice in Conflictand
citizens and government servants are legally Post Conflict Societies: Report of the Secretary
accountable for their actions and where the judiciary General, August 23, 2004,
is independent and free from political influence. 12.Vienna declaration of the world conference on
To sum up, I recommend establishingsuch a human rights 1993
system of law, where everyone is bound to law and 13.William H. Neukom, The World Justice Project in
obey to law. That system is called the Rule of Law. 2007, (WJP), Agrast, Botero, and Ponce (2010)]
References 14.World justice project, rule of law assessment
index 2015. The World Justice Project (WJP) is an
1.AW Bradley and KD Ewing, constitutional and independent, multidisciplinary organization working
administrative law, 14th edition, p.p 95-97 And 12th to advance the rule of law around the world.
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
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.

IDL - International Digital Library 14 | P a g e Copyright@IDL-2017