Writ of the state | By Naveed Aman Khan


Writ of the state

THE rule of law is actually supremacy of law. Under the rule of law decisions should be made by the application of known principles or laws without the intervention of discretion in the application. For the rule of law to function properly, there must be transparency in the law, equality under the law, an independent judiciary and access to legal remedy. It is a simple truism that a stable, prosperous, democratic and egalitarian state does not exist and survive without implementing and following the rule of law. The law is reason without passion and is thus preferable to any individual. Being a philosophical and legal concept, writers, philosophers and jurists, belonging to different ages, civilizations and countries, have described the concept of the rule of law in a variety of ways.

It addresses issues like fairness in the application of the law, governmental accountability, limitations on the exercise of arbitrary power, impartial and independent dispute resolution, protection of fundamental human rights, democratic involvement in the drafting of laws, ensuring separation of powers and a more general culture of lawfulness and corruption-free social, economic and political activities. The rule of law assures that the legal system from the creation of laws through their implementation and ultimately to the court process is fair, easily accessible, and effective.

The rule of law is the cornerstone of the 1973 Constitution of Pakistan. Articles 4 and 5 uphold the concept of the rule of law that is embedded in the doctrine of specified powers. Articles 8 – 28 of the Constitution protect the fundamental rights of an individual. Unfortunately, Pakistan lacks the rule of law as the law is not equal, clear, accessible, predictable and above powerful people. Even Supreme Court judge Athar Minallah has declared that “there’s no rule of law here, but the rule of the elite”. Developed concepts have now become part of almost all the constitutions of civilized nations.

The Diyat law, introduced in Pakistan’s legal system around 32 years ago on the order of the Shariat Appellate Bench of the Supreme Court of Pakistan, is being continuously exploited by the powerful people. Using this flawed law, influential people like an American CIA agent killer Raymond Davis, Qandeel Baloch’s killer brother, Nazim Jokhio’s murderers, including the Pakistan People’s Party (PPP) MPA Jam Awais and MNA Jam Karim, and now Shahrukh Jatoi have all been set free. Baluchistan MPA Majeed Achakzai has also been set free on the plea of settlement ‘per tribal traditions.’ Laws are made and used to save the elite’s corruption and exploitation in Pakistan. The acquittal of Shahrukh Jatoi in the murder case using the Diyat law endorses the fact that laws are made to protect and serve the corrupt ruling elite.

The Justice Project Pakistan has catalogued thousands of reported cases of torture in custody. During PTI government Nawaz Sharif, Shehbaz Sharif, Hamza Shahbaz, Maryam Nawaz, Senator Irfan Siddiqui, Capt. Safdar Awan, Ahsan Iqbal, Rana Sanaullah, Khawaja Asif, Khawaja Saad Rafique, Shahid Khaqan Abbasi, Talal Ch, Khursheed Shah and many others have faced custodial tribulations. The Torture and Custodial Death Bill, has criminalized custodial torture. In spite of this law, the perpetrators Imran Khan, Fawad Ch, Asad Umer, Shah Mehmood Qureshi, Babar Awan, Sheikh Rasheed and many others are still free. The Punjab police committed Sahiwal tragedy in 2019 but no action has been taken against the culprits.

Military dictators Zia-ul-Haq and Pervaiz Musharraf abrogated and suspended the 1973 Constitution. The judiciary was used to protect their illegal actions. Many judges, like Muhammad Munir, Khosa, Saqib Nisar, Azmat Sheikh etc. have tarnished the image of the judiciary and it continues. The World Justice Project, in its 2021 Rule of Law Index, ranks Pakistan 130th out of 139 countries. The victims of tragedies are still waiting for justice. Law is also used to allow some of the most draconian acts occurring in various parts of the country, including Baluchistan and Khyber-Pakhtunkhwa. In these areas, human rights violations can be covered under the Frontier Crimes Regulations of 1901 (applicable in former FATA) or the 2011 Actions (in Aid of Civil Powers) Regulations. The KP Action (in Aid of Civil Powers) Ordinance, 2019, permits the use of internment centers in K-P that deny the right to a fair trial under the pretext of exceptional circumstances. There are also some other serious flaws in the legal system. More than 2 million court cases are pending. Only 10% of criminal cases result in convictions due to corruption and weak evidence presented by law enforcement agencies. Many case examples can be given of delayed justice in Pakistan’s judicial system. In a 100-year-old property inheritance case, the Supreme Court announced its verdict in January 2018.

The Constitution can be used to support this law because Article 245 (1) specifies that the armed forces can be deployed to support civil power if the federal government thinks it necessary. The decision is unchallengeable in front of any court. Pakistani laws are not easily understandable. They are still written in colonial English and have complex language structures. Enough is enough. The PTI leadership has long been violating laws and the constitution continuously. Imran Khan doesn’t believe in rule of law. So do Fawad Ch, Azam Sawati, Babar Awan, Farrukh Habib, Yasmin Rashid, Murad Saeed, Shibly Faraz, Shah Mehmood Qureshi, Asad Umer and many others.

In Balochistan and KP security forces are under attack by terrorists. Such terrorists attain strength from anarchy created by the politicians. Imran Khan and his companions are provoking anarchy in the entire country. This is why terrorists have enhanced attacks on security forces. Now state will have to establish its writ both ways. No more patience. No more tolerance. No more dialogue with, anarchists, terrorists and perpetrators. But now writ of the state will have to be established. The perpetrators should be brought to justice. The ruling elite, including politicians, feudal lords, pirs, businessmen, and the civil-judicial — military bureaucracy, do not want to establish the rule of law in the country as it would decrease their power and rule.

—The writer is editor, book ambassador political analyst and author of several books based in Islamabad. Email: [email protected]