In Pakistan, every third person talks about rule of law. The majority views it negatively for it does not exist. Scores are abused, abducted and killed in broad daylight. Settled areas, both rural and urban, are also observing the weakening writ of the state. One of the reasons behind bad governance in Pakistan and the near absence of rule of law is the abortive practice of separation of powers. Historically speaking, the concept of separation of powers is weak in Pakistan. Most of the time, the executive branch of the state remained the chief arbiter of policymaking and policy execution both in presidential, military and parliamentary types of government. The Prime Minister (PM) has constitutionally unquestioned authority over the legislature. Nevertheless, non-elective institutions of the state, such as the civil bureaucracy and the military, assumed direct control over politics and the state, thus ensuring the extra-constitutional and supra-parliamentary nature of rule in Pakistan. Interestingly, the judiciary, which till 2007 acted passively in terms of legitimisation of bureaucratic and military rule, started treading the same path. The judicialisation of politics and the state became visible by 2009.
Ironically, in 2013, the Supreme Court (SC) under Chief Justice (CJ) Iftikhar Chaudhry encroached upon the powers of the executive and legislative branch of the government to the extent that the PPP government (2008-2013) saw its PM, Yousaf Raza Gilani, sacked from office on the orders of the SC, which time and again intervened into matters that were the exclusive preserve of the executive: fixing the prices of different commodities and forcing the government to appoint heads of different institutions. Moreover, in 2013, when Iftikhar Chaudhry was CJ of the SC, the country saw massive overreach by the judiciary with some calling it quasi-judicial dictatorship. However, this turned out to be an anomaly rather than a norm as Iftikhar Chaudhry, at the end of his tenure, was reinstated as the result of a popular movement against the PPP government, which was reluctant to reinstate the CJ. Little wonder that during 2013 the CJ ran the show in a way that was incompatible with democratic norms and the principle of separation of powers. It smacked of his moral certitude and personal hubris rather than constitutionalism.
In his last year in office, during 2013, CJ Iftikhar Chaudhry took excessive suo motus, which burdened the judiciary with excessive work and increased its inefficiency, more at the lower tier of the judicial system. This probably was the reason that, in January 2013, Chairman National Accountability Bureau (NAB) Admiral Fasih Bukhari accused the Pakistani judiciary of being the most corrupt institution. He said that he had been served with a contempt of court notice when he refused to induct a person in NAB referred by the SC. Incidents of corruption and nepotism are rife in the lower judiciary. In addition, the judiciary has been unable to probe into issues related to the military such as Musharraf’s trial. It is a common practice in Pakistan that the most powerful and wealthy go unpunished even if involved in heinous crimes. Corruption and office abuse are common phenomena in Pakistan that mostly go unpunished. Successive governments in Pakistan established parallel judicial structures to maintain the rule of law at the cost of the separation of powers. The establishment of NAB under Pervez Musharraf, if not the Federal Investigation Agency (FIA) under Zulfikar Bhutto, is a case in point.
NAB was instrumental in engineering the 2002 elections. Since then the bureau’s independence has been compromised in terms of hosting non-trained and corrupt brass and those who led it from the top in political terms. Littler wonder that Musharraf, the PML-Q, PPP and even PML-N invoked its partisan utility. Nonetheless, there are some success stories regarding NAB under the chairmanship of Qamar Zaman Chaudhry. For example, NAB was successful in retrieving four billion rupees from defaulters from 2013 to 2014. The bureau also authorised 767 inquiries and filed 152 references during the same period. However, not all cases involving office abuse are referred to NAB. Most of the cases are referred to the anti-corruption establishment at the district and provincial level where favouritism and bribes reign supreme. In 2014, Pakistan ranked 126 among 175 countries in the corruption perception index. In 2013, it ranked 127 among 177 countries. Corruption has infested Pakistani society from top to bottom. Almost Rs 12 billion are lost on a daily basis due to corruption, with the accused left untouched. In other words, abuse of office for personal benefits has become a norm in Pakistan.
The byproduct of bypassing institutional frameworks is the sorry state of rule of law in the country. For instance, Pakistan’s record on human rights protection was at its worst during 2013-2014. Between January and June 2013, the police killed 57 people in Karachi in encounters and 157 activists of different political parties lost their lives in targeted killings. In 2013, the military and police were unaccountable in cases where threats to national security were involved. The Shia-Sunni conflict in the country continued unabated in which both sides were involved in a killing spree against each other. In 2013 alone, 400 Shias were killed. During the election campaign in 2013, 150 people were killed and another 500 were injured in terrorist attacks. Religious minorities were persecuted by extremist forces during 2013 and 2014. Also, incidents of violence against women have increased abysmally. Almost half of terrorism fatalities include unarmed and innocent women and children. Grave cases of acid throwing continue. This was the reason why, in 2014, Pakistan was ranked the fourth worst country in the world in terms of civil rights. That means its record in all aspects of civil rights has been at its worst in the two years of the Sharif government. This is not to suggest at all that the state of civil and political liberties was better with preceding governments. Indeed, socio-economic and psychological diseases have engulfed more than 70 percent of Pakistan’s population over a period of six decades.
In order to protect its population from poor indicators of socio-economic development along with collective mental disorder, the state elite needs to comprehend the significance and effectiveness of the rule of law, which is grounded in the separation of powers. Until each institution learns to play within the legal and constitutional rules of the game, Pakistan will only recede into poverty, lawlessness and ultimately a failing state. This is the time to act in the larger interests of society and the state.
The writer is an independent political scientist and author of Military Agency, Politics and the State in Pakistan. He tweets @ejazbhatty
Pakistan is a war zone facing serious threats from militants and terrorists besides a number of other problems and difficulties that urgently demand the establishment of democratic structures as well as rule of law. In the light of the current crisis, high-ranking guests from Pakistan and various German experts discussed structures and deficits of rule of law as well as the current state of affairs, parallel legal systems, the relationship between politics and judiciary and the role of political parties and society.
The current situation in FATA, where the Pakistan army tries to root out militants, was certainly the main focus of discussions. The crisis in the tribal areas is not only a military conflict but a conflict of governance. Consequently, FATA needs to be mainstreamed into the provincial and also national assembly and the constitution and laws must be extended to this area. Furthermore, rule of law is closely connected to the fight against extremism and militancy. The Taliban are not strong but benefit from the weaknesses and deficits of the state in regard to rule of law and governance. They grew strong because the government does not provide any basic rights such as education, health and most important access to justice.
Decades of dictatorships have weakened democratic structures and rule of law
Since the Supreme Court has legitimized a military coup in the 1950ies for the first time the judiciary has become subservient to ruling regimes. In this regard, courts do not exceed their competences but they do not make sufficient use of their powers when needed. It was not before March 2007, when the first Chief Justice of the country resisted a ruling regime and thus spurred a movement fighting for the establishment of rule of law. The Lawyers Movement has contributed to a general understanding of the importance to restore the deposed judges and to install an independent judiciary. In the course of this movement, a new Pakistan has emerged including a vibrant civil society a free media and active political parties.
Despite major developments during the past two years democratic structures still need to be strengthened. A country cannot be democratized if for example one of the main pillars of democracy, the political parties, is completely undemocratic, corrupt and dominated by family politics. Political parties have contributed a lot to the loss of power of the parliament. Therefore, strengthening institutions is very closely related to strengthening political parties. In this regard, special emphasis needs to be put on programmatic parties because charismatic and clientelistic parties, which are present in Pakistan, are detrimental to democracy.
Major sectors of Pakistan social and political structure, particularly politics and governance institutions, are dominated by the elites or feudal families hampering rule of law and democracy for the sake of their own interests. It is mainly the elite benefiting in regard to economic and social justice, access to quality education and health facilities or access to the judicial system. Furthermore, corruption and a lack of accountability dominate the system and as long as those who have violated the constitution are not accountable, ordinary people hardly can expect justice or rule of law. Therefore, people are frustrated and turn towards other institutions in their search of justice and thus contribute to the emergence of various competing systems. Particularly the existing parallel legal systems reveal deficits and contradictions affecting mostly women and minorities. Therefore, there is a need of a unified judicial system instead of parallel structures in order to ensure justice for the people. However, Islamic legal institutions coexisting to national legal institutions may also serve to bridge normative conflicts regarding certain religious issues.
If democracy in Pakistan shall succeed, there is an urgent need to create a balance of power in state structures particularly with regard to the relationship of military and government and president and prime minister. In addition, Pakistan needs to develop democratic politics and procedures of voting for or against certain political forces instead of military coups ousting a malfunctioning civilian government. An important experience of democracy is to let governments fail. However, democracies are only functioning well if rule of law is already established, but rule of law does not function if there is a democracy trying to establish rule of law.
Nevertheless, rule of law cannot be installed or enforced mechanically - it is a process and needs to grow gradually.
Various speakers emphasized that the only solution for the diverse and complex problems of Pakistan is Rule of Law as the only way to win hearts and minds of the people particularly in FATA. Therefore, democracy must deliver – including justice - if Pakistan wants to go back on the path of stability. But the crucial question is: who will provide it?
Table of Contents
- Executive Summary
- I Conference - Rule of Law in the Islamic Republic of Pakistan
Current State of Affairs in Pakistan - Scope and Limitations for the Rule of Law
- Panel I: Parallel legal Systems, Myths and Realities
Rule of Law and Gender
Relevance of Rule of Law for Pakistan and the Crisis in FATA
The Existence of Different Competing Systems
Rule of Law from a Legal Pluralism Perspectiv
- Panel II: Rule of Law, Politics and the Role of the Judiciary
Constitutional Courts and Politics
The Role of Political Elites
The Role of Elections
Constitutional Laws and the Role of Constitutional Court
- Panel III: Political Parties, Civil Society and the Rule of Law
Rule of Law and Society: Does Law Matter?
Democracy and Rule of Law
Political Parties and Power Structures
- Panel I: Parallel legal Systems, Myths and Realities
- You can download the complete conference paper as pdf file (16 pages, 131 kB)
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