Jul 31, 2009

Legal Horizon | Rule of law in Pakistan

Akhtar Ali Kureshi

As citizens of Pakistan, we are committed to the principle that society must be ruled by law, not by the passions of the mob or the ambitions of powerful leaders. The imperative of protecting and advancing human rights and freedom through the rule of law is rooted in both al-truism and pragmatism. Our commitment to liberty and equality is driven by the ideals infused in our Constitution. But we also have learnt through painful experience that societies not governed by the rule of law, are more likely to engage in tragic violence. As law knowing and abiding citizens, we should promote the rule of law in the country for economic reasons. Transparent and stable government institutions, corruption free system and access to justice not only protect human rights; but also are a great source to encourage the public as well as foreigners to invest in Pakistan.For these reasons, one could be confident that these collective efforts toward advancing the rule of law in our society, are among the most impressive and important projects. The entire nation should try to follow it and this noble cause of advancing rule of law will get soon at a higher level of public at large. The newly created atmosphere for rule of law by the SC’s initiatives is coordinating and expanding the programming of a good justice system in future. The appreciations may be a source to enable the SC to promote the winds of judicial reforms at all level in order to help and develop an independent legal system and legal education, combat corruption and human trafficking and promote gender equality, among other activities.The present perception of the SC and its important work is made possible for thousands of Pakistanis who were helplessly waiting for justice and the lawyers, who are assisting the court in advancing the rule of law, indicate an incredible dedication. By conservative estimates, we are heading towards a judicial revolution which will change the fate of the entire nation. We have good reason to be proud of the SC for their great work and its efforts for a new era leading towards success, including the re-activation of some important institutions. Initiatives of public interest litigation and suo motu actions of the SC have given a strong gesture to those who failed to realise that wrong doer will not go scot-free so much so a sense of judicial review gives a serious call to the legislature to act prudently. The open eyes of the SC’s working to make the judicial system more accessible to all, particularly women and the poor who are already suffering a lot. This piece of work gives satisfaction to the general public for upbringing the law and human rights and the SC adds luster to its reputation as the leading voice on the rule of law.The Supreme Court is also a convener of nation and individuals dedicated to advancing the rule of law, as demonstrated by its judgments in which new ways were opened by setting new precedents for the High Courts and subordinate judiciary. The traditions of full court meeting for taking administrative decisions, Law Commission, Supreme Judicial Council, etc. is remarkable decisions and new milestone in our judicial history. This new trend brought together judges, lawyers, government officials, philanthropists and NGOs leaders of the country to discuss how the rule of law can help solve our pressing problems i.e. terrorism, corruption, nepotisms, and poverty. Justice delayed is justice denied, at the very least, slow and cumbersome legal process holds back the wheel of commerce. The globe is shrinking by the day and unless a country which does not keep pace with the development around, it is bound to be left behind. Legal development plays an important role in shaping the country and provides favourable environment to prospective investors. Bringing appropriate changes to legislation by introducing or enacting new acts to replace the obsolete enactments is necessary to legal development. As members of the global community, we must work closely with other nations to achieve goals and aspirations. Many professions, including legal emerged as global profession. Any attack on the independence of a society in one country is an attack on all countries. Any harm to the people of one country because of the failure of the rule of law is harm to all of humankind. As Pakistani we must continue to remind our government that promoting the rule of law locally as well as internationally must begin at home. We must do all in our power to ensure that Pakistan never relinquishes the moral high grounds of adhering to the rule of law. The concept of generality implicit in the rule of law does not require that all laws must have universal application. However, the rule of law does require a rational and non-arbitrary basis for differential treatment of individual or groups. Rationality and legitimacy of legislative classifications can often raise difficult questions. The distributional contents among interested groups that characterize modern democracy generate many controversies concerning differential treatment. There is absolutely no constitutional device that can wholly eliminate irrational or arbitrary classifications. The principal devices that in combination have proved successful in this regard are the separation of powers, representative democracy, federalism and effective guarantees of basic rights. It needs to be stressed that these devices may exist as part of the constitution in the real sense though formally expressed in a constitutional text. Yet, when an opportunity for substantial constitutional application and its improvement presents itself, a nation should seek to entrench a constitutional structure that is most favourable to the maintenance of the rule of law. Pakistan is at the threshold of such a historic opportunity and should weigh its option with utmost care in reaching to its intact constitutional return and moving towards rule of law through courts, for an ultimate destination.The writer is a practicing Advocate of the Supreme Court of Pakistan, law Professor, member of International Bar Association, London and former Assistant Advocate General Punjab

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