This report provides a general overview of the current state of the rule of law in Pakistan. The main conclusion is that the rule of law is extremely weak in Pakistan. However, this is not without exception and encouraging developments are noted. In addition, however weak the rule of law in Pakistan, this is an extremely important issue for the country and if it can be addressed properly, many of Pakistan’s other problems will be resolved. As a result, anything that we can do to improve this will be a great contribution to the country.

 

The rule of law is a broad term which covers many issues. I have set out below some typical requirements of the rule of law and I have discussed each of these in the context of Pakistan.

 

1. The law must be accessible and so far as possible intelligible, clear and predictable.

 

One basic problem that Pakistan faces in common with many other developing countries is that it has a very low level of literacy amongst its population. As the sources of law in Pakistan are all written they are in a very obvious way for the most part inaccessible to the majority of the population.

 

It may be said that while people cannot necessarily read the laws, they are in any case aware of their essence through a shared system of values. This is also questionable as the legal system is largely based on secular laws many of which originate in colonial times.

 

Another factor which greatly undermines the clarity and predictability of the rule of law is the conflict between secular law and religious law.

 

This conflict owes a great deal to General Zia ul Haq, Pakistan’s military dictator from 1977 to 1988. Amongst the changes that he introduced were: the Hudood Ordinances (imposing Islamic punishments for a range of offences); the Federal Shariah Court (which has the power to review laws that it considers unislamic); and various blasphemy laws (with severe punishments for criticism of Islam).

 

The Federal Shariah Court in particular effectively creates a parallel Islamic jurisdiction. It has the power to review laws for their compatibility with Islam. It is also a quasi-legislative body: it can pass judgments requiring Parliament to make changes to the law and if Parliament fails to do so within a given period, the FSC’s judgment acquires the force of law. Its powers are very wide and this allows it to act in an arbitrary manner. As a result it is often a rallying point for orthodox Islamic groups who use it as a way to force change in their favour.

 

 

1. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

 

Power is commonly exercised in a discretionary manner in Pakistan. This has been most obviously the case when military regimes have declared states of emergency giving them total discretion to act as they see fit. This occurred most recently in November 2007 when General Musharraf declared a state of emergency and suspended the constitution. He did so on the pretext that this was necessary to protect the country from Islamic extremism. However, it is widely thought that he did so to fight opposition from the legal profession.

 

The suspension of the constitution of course removed the rule of law, but more fundamentally the future integrity of the rule of law was also undermined by the self-interested motives for the suspension of the constitution.

 

The discretionary exercise of power is encountered on a day to day level due to the problem of corruption. This exists among politicians, the judiciary (at the lower levels at least) and the police. This fundamentally undermines the rule of law and effectively allows wealthy people to behave as they wish.

 

 

1. Laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

 

One of Pakistan’s most fundamental problems is that there is no obvious ‘law of the land’. The law emanating from the State is only one source of law and is relatively weak outside the main cities. Elsewhere, particularly in the rural areas, religious law or tribal law have greater force.

 

To the extent that State law does exist, due to the high levels of corruption, it does not apply equally to all. This is discussed above.

 

 

1. Law must afford adequate protection of fundamental human rights.

 

Women and religious minorities are two of the main groups that suffer from inadequate protection of human rights. The Hudood Ordinances introduced Islamic laws on a range of criminal offences. These explicitly discriminate against women by giving their testimony a lower value than that of men. They also have a greater impact on women in practice because of the accusations of extra-marital sex that are made against them. Although many of the cases against them are dismissed at least on appeal, they cause substantial stigma for the women in question in the communities in which they live.

 

There are also a range of laws that discriminate against the Ahmadi sect of Islam. The Ahmadis follow the teachings of the 19^th century figure Mirza Ghulam Ahmad but consider themselves to be Muslims. They can be imprisoned for certain expressions of their faith, particularly reverence for Mirza Ghulam Ahmad.

 

 

1. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

 

Civil disputes in Pakistan can take between 10 and 20 years to be resolved. This is because there are insufficient judges in the lower courts to deal with the vast numbers of cases that are brought every year. There is also no public funding for litigation and the application and court fees are very high. As a result, both the time and cost of litigation greatly limit access to justice in Pakistan.

 

 

1. Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.

 

The judiciary do have important powers to constrain the use of power by the executive. Indeed this was one of the reasons for Musharraf’s actions against the judiciary in 2007. The Supreme Court has the power to take suo moto actions and to pass enforceable orders on questions of public importance. In one such action it ruled that public hanging violated the dignity of man as enshrined in the Constitution. This is particularly useful because private victims of Government actions can be unwilling to come forward for fear of the consequences.

 

 

1. Adjudicative procedures provided by the state should be fair.

 

The time and cost of litigation mentioned above is a major barrier to the establishment of fair adjudicative procedures.

 

In addition, the President currently controls the appointment of the senior members of the judiciary. This has frequently been used to exert control over the judiciary and has undermined the separation of powers.

 

 

1. The state must comply with its obligations in international law.

 

Pakistan is a party to the Universal Declaration of Human Rights. It has also recently signed the International Covenant on Civil and Political Rights and ratified the International Covenant on Economic, Social and Cultural Rights.