Pakistan and modern concept of rule of law Essay

Aristotle said more than than two thousand old age ago, The mold of justice is reform than that of every individual. The notion of the rein in of uprightness stems from piece of musicy traditions and continents and is intertwined with the evolution of the chronicle of uprightness itself. The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is oneness of the first examples of the codification of statutoryity, presented to the public and feeding to the acts of the ruler. In the Arab world, a rich tradition of Islamic righteousness embraced the notion of the achievement of command. Core doctrines of holding g e actuallywherenment authority to account and placing the wishes of the populace out front the rulers, can be found amid the main moral and philosophical traditions crossways the Asian continent, including in Confucianism.In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the enormousness of the independence of the judiciary and the percentage of judicial subprogram as implicit in(p) characteristics of the rule of righteousness. In continental Europe notions of rule of natural honor of nature cereb identify on the nature of the State, particularly on the role of inbuiltism. triumph of law is classical precept of administrative law. As a matter of situation this ruler was one of the principles that acted as impediment in development of administrative jurisprudence principles. The irony further is that the rule of law is now an cardinal part of modern Administrative Law. Whereas the rule of law is sleek over the one of the very important principles regulating in joint law countries and common law derived countries modern laws has denied some of the important parts of rule of law as proposed by Dicey at the start of 19th Century. dodgys command OF righteousnessAs mentioned above the concept of rule of law backs to the era of Aristotle. Aristotle ruled out t he concept of rule low discretion by all means and tried to convey his followers that effrontery the choice it is always rule of law that scores over rule of discretion. Though Sir Edward Coke was the originator of this concept, but Dicey authentic this theory. Now it is popularly known as Diceys theory of Rule of Law. It is excessively known as the Traditional concept of rule of law.According to Dicey, this doctrine has three meaningsi) Supremacy of Lawii) Equality in front lawiii) Predominance of legal spiritSUPREMACY OF lawRule of law in this sense means the absolute supremacy of uniform law as contrary to the influence of arbitrary power or wide discretionary power. Dicey says, Wherever there is discretion, there is elbow room for arbitrariness and that in a republic no less than down the stairs a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects. par BEFORE LAWDicey states that there must be equation before the law or the equal subjection of all classes to the popular law of the land administered by the mediocre law courts. According to him, there should not be whatever extra-ordinary tribunals or special courts for officers of the Government and other politics.PREDOMINANCE OF LEGAL SPIRITDicey emphasized the role of the courts of law as guarantors of liberty & suggested that the rights would be more secured if they were enforceable in the courts of law than by mere declaration of those rights in a document. Diceys theory of rule of law was never accepted fully level off in his days. Many scholars criticized his theory.He was firm proponent of the concept and very influential thinker of his times. Though the first two principles are still in almost every legal system of world, the third principle was protested many of jurists of that time. The Dicey in particular opposed the principle of french system ofDroit Administratiff. England at that time was in f act propounding some similar legislative and quasi judicial processes which were taken cognizance of English thinkers of that time still the whole common law system of countrified was blindfolded with the Diceys philosophy of rule of law.MODERN CONCEPT OF RULE OF LAWRecent attempts to formalize its meaning bugger off drawn on this rich history of diverse lowstandings. The modern conception of the rule of law has developed as a concept distinct from the rule of man, involving a system of governance ground on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the rampart and vindication of rights and the pr steadytion and punishment of wrongs. vast before the unify Nations, States were written reporting towards a rule of justice in world-wide life with a view to establishing an world-wide community based on law. SEVEN MODERN PRINCIPLE MEANING OF RULE OF LAWDavis gives seven principal meanings of the term Rule of Law which is known as Modern concept of Rule of Law. These are as follows i) Maintenance of Law & order.ii) Existence of fixed rulesiii) Elimination of discretion where it is not necessaryiv) followers due process of law or fairnessv) Observance of the principles of infixed justicevi) Preference for Judges and ordinary courts of law to executive authorities & administrative tribunalsvii) Judicial review of administrative actions.MODERN RULE OF LAW DEFINED IN INTERNATIONAL DOCUMENTS.Today, the concept of the rule of law is infix in the mesh of the United Nations.In its Preamble, one of the aims of the UN is to establish conditions under which justice and respect for the obligations arising from treaties and other sources of inter field law can be maintained. A primary purpose of the Organization is to maintain external peace and security and to bring about by self-possessed means , and in conformity with the principles of justice and inter field of study law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. The Universal contract bridge of homosexual Rights of 1948,the historic international recognition that all human beings energize profound rights and freedoms, recognizes that it is essential, if man is not to be compelled to accommodate recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of lawFOR THE UN, THE SECRETARY-GENERAL DEFINESthe rule of law as a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are responsible to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are arranged with international human rights norms and standards. It requires, as wellhead, measures to ensure adherence to the principle s of supremacy of law, compare before the law, accountability to the law, fairness in the application of the law, separation of powers, fraternity in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. The principle of the rule of law applies at the national and international levels.At the national level, the UN supports a rule of law framework that admits a Constitution or its equivalent, as the highest law of the land a clear and consistent legal framework, and implementation thereof strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped transitional justice processesand mechanisms and a public and civilized indian lodge that contributes to strengthening the rule of law and holding public officials and institutions accountable. At the international level, the principle of the rule of law embedded in the Charter of the United Nations encompasses elements rele vant to the conduct of State to State resemblances. The Declaration of Principles of planetary Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations recognizes the inherent link between the UN and the international rule of law.Its preamble emphasizesthe overriding importance of the Charter of the United Nations in the promotion of the rule of law among nations.Drawn from existing commitments in international law, the core set and principles of the UN include respect for the Charter and international law respect for the sovereign equality of States and the principle of non-use or threat of use of force the fulfillment in good faith of international obligations the need to resolve disputes by peaceful means respect for and security system of human rights and rudimentary freedoms recognition that protection from genocide, crimes against humanity, ethnic cleansing and war crimes is not hardly a office owed by a State to its population, but a responsibility of the international community, the equal rights and self-determination of peoples and the recognition that peace and security, development, human rights, the rule of law and democracy are interlinked and mutually reinforcing. Appropriate rules of international law apply to the Organization as they do to States. RULE OF LAW IN developing SOCIETY LIKE PAKISTANIN developing societies, the rule of law is very much slaughtered at the altar of discretion and personal whims. However, governance, peace, investment and development are interlinked with the extent of the rule of law in a society.Where the rule of law exists the government and its functionaries are accountable. Due care is exercised to ensure that no unmarried organ of the state becomes omnipotent. Mere legislation alone is not enough. usual consent strengthens the rule of law. Laws not synchronized with social and cultural values result in low acceptance. Awareness regarding the la w not only empowers but also improves enforcement. In the developing world, the public tends to narrowly assure the rule of law. In Pakistan, evidenceabounds of how the law is bent or broken, with society suffering as a consequence.Misappropriation of public money, sale of meretricious medicines, issuance of fake degrees, non-payment of levyes and loans are but a few examples of revolution in Pakistan. In a democratic society the rule of law reflects the quality of governance. Weak enforcement of the law provides space to illegals and terrorists to further their aims. For example in Karachi, the countrys biggest city, the Supreme Court has taken notice of the creation of no-go areas. The presence of gangs in the Lyari area is another challenge for the Karachi police. such(prenominal) groups patronize extortion, as well as the proliferation of weapons and drugs. Though we are an energy-starved country, the stealing of electricity and gas is considered normal practice. For exam ple, illegal gas connections in Khyber Pakhtunkhwas Karak district deliver touched alarming levels. The district is said to be a defaulter of Rs210m. Our tax laws provide exemptions to certain sectors, such as agriculture.According to a media report only 0.81 million people filed tax returns during 2011-12, despite the fact that some 3.39 million people possessed topic Tax Numbers. Only 0.6pc of the population pays taxes in Pakistan, as against 4.7pc in India, 58pc in France and 80pc in Canada, the report observes. The easy availability of weapons and explosives is another grave douse badly affecting peace in the country. According to an estimate 20 million illegal weapons pose a serious threat to national security. However, deweaponization based on zero tolerance can earn dividends. Balochistan is a province where establishing the rule of law is a major challenge. The countrys largest province, as far as area is concerned, is divided into A and B policing areas. To strengthen th e writ of the government in 2003 a program of converting B areas into A areas at the cost of Rs5.515bn was started. But owing to certain reasons the colonial-cum-tribal set-up was restored in 2009.When institutions fail to protect human rights and dispense justice, the vacuum is filled by non-state actors. The low conviction rate encourages criminals. In Khyber Pakhtunkhwa, during 2012 in cases of terrorism, the conviction rate was only 4pc. Overall in Pakistan the conviction rate varies from 5pc to 10pc, whereas in the US it is 95pc. According to Indias National Crime Records Bureau data, in that country during 2012 the conviction rate was 38.5pc. The rule of law requires balance between rights and responsibilities, where no one is above the law including the government. The Constitution guarantees primordial rights and everyone is supposed to have access to justice, including the accused. In our context judicial activism and a free media have enhanced the understanding of human r ights.From September 2012 to September 2013, 45,040 complaints were filed with the Human Rights carrell of the SC. Yet delayed justice erodes the publics confidence in the system. For example in 2012 there were 107,088 cases pending in 437 courts of Sindh alone. Reluctance of the witnesses to evidence speaks to the defects in the system. The rule of law requires a human-friendly congealional system, having the capacity to correct human behavior. But Pakistans overcrowded jails only end up creating more hardened criminals.RULE OF LAW UNDER CONSTITUTION OF ISLAMICE REPUBLIC OF PAKISTAN 1973In the constitution of Pakistan 1973 the principle of rule of law was embodied in rule of article 4 which though is not a part of the fundamental Rights however provides better safe guard to the individual as even in the emergency this right to be dealt in accordance with law is not suspended.As it was held in Jamal Shah Case PLD 1966 SC 1.According to Kaikas referee denomination 4 prevents th e Government from taking any action in their country for which there is no legal sanction and it at the like time debars the legislature from creating an authority whose actions are not subject to law. It was also held in Mir Ali Nawaz Bugti vs. Superintendent Jail PLD 1966 sc 357 , 360 It is intended to negative any claim by the Government that any category of its acts in relation to citizens and other persons in paksitan are not subject to law at all In Brig. Imtiaz Ahmad vs Govt. of Pakistan 1994 SCMR 2142, 2160. It was sought to be argued that the Appellant the former coach Intelligence Bureau who had challenged the registration of some criminal cases against him was not an ordinary man, the supreme court thought it necessary to recall for the benefit of all concerns that the law makes no difference between great and petty officers convey God they all are amenable to justice.In Federation of Pakistan vs. Ghulam Mustafa Khar PLD 1989 SC 26, 53 It was held that so predominant is the position of Article 4 in the constitution that it furnishes the only Guarantee assurance to the citizenwhen the fundamental rights are suspended.in a ay the Article confers a right which is more basic then fundamental rights because opus the fundamental rights can be suspended the right given in Article 4 cannot be. In Manzoor Ellahi vs. federation of Pakistan PLD 1975 SC 66 it was held that Pakistan is governed Rule of Law as as embodied in Article 4 and 5 of Constitution. The constitution creates no right and imposes no indebtedness in vain. INTRODUCTION OF DUE PROCESS AND FAIR TRIAL IN FORM OF ARTICLE 10-A 10A. Right to fair trial.- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process. After establishment of Article 10 A The due process of law which is comparatively a wider term than the rule of law has been made the part of fundamental rights guaranteed by the constit ution to the subjects of the state.Through Article 10-A of the Constitution which is largely godly by Article 6 of the European Convention on Human Rights, the legislators have introduced two fundamental concepts i.e. of due process and fair trial. Interlinked as these are, due process has a much wider meaning than fair trial. The history of due process is rooted in the Magna Carta in English jurisprudence and, subsequently, in the American jurisprudence surrounding the fifth and 14th amendments to the US constitution.The 14th Amendment, for example, states No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any state strip down any person of life, liberty, or property, without due process of law nor pass over to any person within its jurisdiction the equal protection of the laws. The US Supreme Court has interpreted the 14th Amendment as having created a constitutional natural law that would be availab le as a protection against the states and not just the federal government (which was the position under the 5th Amendment). In Pakistan the Article 10 A is still under process of interpretation before various court as various exiting laws have been challenged in various writ Petitions. However it can be presumed that the insane asylum of Article 10 A would be serve as an promoter for the legislature and law enforcing agencies to seal with the subjects on equal footing while law making process. CONCLUSIONFor improvement in the rule of law, the enforcement wing of authoritiessuch as the Federal Board of Revenue, civic administrations, PEMRA, the Pakistan telecom Authority and the Drug Regulatory Authority etc. need better administration. The media in Pakistan, especially the electronic media, has the potential to educate the masses regarding their role in the establishment of the rule of law. Instead, at times, some outlets end up glorifying non-state actors. Improved rule of law in Pakistan requires an improved criminal justice system, especially in Fata, Balochistan, Karachi and certain parts of KPK. Therefore capacity-building and revamping of the whole criminal justice system is essential. Reforming one component will not work synchronised reforms are the need of the hour.