by Dr. Khalil Ahmad
The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.
-Dwight David Eisenhower, 1890-1969
I would have government defend the life and property of all citizens equally; protect all willing exchange; suppress and penalise all fraud, all misrepresentation, all violence, all predatory practices; invoke a common justice under law; and keep the records incidental to these functions.
- Leonard E. Read, 1898-1983
Even this is a bigger assignment than governments, generally, have proven capable of. Let governments do these things and do them well. Leave all else to men in free and creative effort."
The greatest affliction that can happen to a nation is that its institutions brazenly indulge in activities other than what they are supposed to be involved in by general consensus or assigned to them by law or constitution. Thus, they defy their own raison detre. One such institution is government.
All governments on earth unmindfully do many such things for which they are not formed or which they are incapable of by their very nature. They leave their original purpose/s far behind of their mandate and run after so many pseudo goals they lay claim to that can never be achieved; these pseudo goals only prolong their lies and unjust rule.
But, as a rule, they fail in performing their very duties they are meant for. Differences abound what a government should do and what it should not. For instance: whether a government should involve itself in economic activity or not, or if it should, to what extent.
Or, whether a government should adopt the role of a re-distributor of income or not. Or whether it should regulate economic activity or not; and if it should, to what extent. All this is a matter of great controversy. However apart from these controversies, there is one value on which universal agreement exists: it is rule of law. That a government ought to establish the writ of law and maintain it.
The greatest achievement of human civilisation is that we have come to treat all of us as equal as regards rules and laws. Indeed, everybody is born unequal - he is unequal from others, physically, mentally, and in so many ways. So, had there been no rule of law, there would have been stark inequality. And, in that case, the mighty and powerful must have been ruling the roost.
Actually, all types of power or might or force subsumes under the concept of authority. This power or might or force may be of two types - one is one is born with by birth and other is one that is acquired. The former is like the might of a lion, elephant, rhinoceros or a powerful person.
The might or power may be acquired by effort as well. As wrestling techniques, judo karate, tae kwan do, kung fu, etc; all these make one powerful. This power is part and parcel of human body; it cannot be separated from the person until and unless he suffers any damage physical or otherwise that is injurious to him and his acquired abilities.
But, there is another power that can be separated from the body of the person who has got it. This power consists of all those things or instruments which can be used in an attack on another person or in defence of one's own self.
However, the expertise or dexterity of using these 'weapons' can be learned and separated from one's person by inflicting damage to his body or mind. A strong branch removed from a tree may be used to attack a person or in one's defence with or without dexterity. The firearms are like that. Their use with or without dexterity can lessen or enhance the possibility of one's success and survival.
All this power, might or force has something to do with physical bodies of human beings or with material things. However, in addition to these, there is another type of power which characterises human society and human progress. This is Authority per se. Authority also endows one with power or might or force. A person who is invested with certain authority comes to be powerful regardless of the fact that he is weak or unarmed.
Likewise, if a person is divested of such authority, no matter how mighty, powerful and armed he is he comes to be powerless. It is this authority that initially was a symbol of democratic development and later came to be known as legal authority. In other words, this authority used to be derived from law. With the advent of this authority, individuals and groups lost their source of authority, viz, their power or might or force, natural or acquired.
Now law became the source of power and might. This outdated the monarchical period. With time, it was this legal authority that developed into constitutional authority. In order to manage communities and countries, constitutions were devised. Constitutional duties and responsibilities were fixed. All power or might or force was brought under law and constitution. This helped societies move forward from the law of jungle to the law of humanity. This was a great leap forward in the history of human civilisation.
But perhaps factually it is not like that! There are many societies that still oscillate between older and modern concepts of authority. Most of their people are still infatuated by power and might.
They are still a victim of worshipping the rule of the powerful, and consider power and might as panacea to all ills. In such circumstances, forces opposed to rule of law easily get rooted and strengthened. They show no regard for the legal and constitutional authority, and law of the land. The law that invests them with authority they violate that very law. This is no human condition.
No doubt, Pakistan is one such country. We are steadily sliding down on the scale of rule of law - a sine qua non for the smooth running of social and economic life of a country. Take up newspapers, magazines, etc, of, say last six months, and there is recurring warning of worsening law and order situation.
The editorials, opinion-articles, reports, news, news-features, letters to editors, all point to the same thing: that the government is not fulfilling its fundamental duty of protecting life, property and freedom of its individual citizens, and as a result, life for the common and general public is becoming a nightmare - nobody feels safe anymore even in their homes. Not only is this the general perception, it is a fact also.
As to the factuality of this state of affairs, ruling leaders and government functionaries would differ by calling it impressionistic. As an argument, we have another source to validate our thesis: that Pakistani people are experiencing what is not rule of law and what is a grave law and order situation!
(The State of the Rule of Law in Pakistan - Part II)
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Dr. Khalil Ahmad is the founder and Executive Director of the Alternate Solutions Institute, Pakistan's first free market think-tank
This article appeared in the Business Recorder on March 24, 2007.
