A Brief Assessment of Rule of Law and Human Rights under the Constitution of Pakistan

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International e-Journal For Education And Research-2017
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A Brief Assessment of Rule of Law and
Human Rights under the Constitution of
Pakistan
Sadaqut Ali
Master of comparative laws student in Department of Law, International Islamic University Malaysia,
E-Mail – saddaqatali666@gmail.com
Abstract:
The philosophy of Rule of Law stated that no one above the law, all are equal before law and fundamental rights of
the citizens must be protected. Rule of Law, the fundamental constitutional principle, introduced in 17th
centuries
and got popularity in 19th
century by a great scholar A.V Dicey. This article looked into a brief assessment of Rule
of Law and fundamental rights under the constitution of Pakistan. This study based on qualitative and quantitative
research, and it first described what the Rule of Law is? Its main features, relationship between Rule of Law and
Human Rights, and then a comparative analysis of Rule of Law and Human Rights in Pakistan and other countries
of the world by referring World Justice Project, Rule of Law Assessment 2015.
KeyWords: Rule of Law, Human Rights, Relationship between Rule of Law and Fundamental Rights, World Justice
Project
1. Introduction
Most important principle that society should be
governed by law and not by arbitrary action. This
expresses the importance of constitutional doctrine
known as “Rule of Law”. Rule of law has been
introducedin 17th century and became famous in 19th
century by British Professor A. V. Dicey. The
concept became familiar in ancient time also and
explained by philosophers such as Aristotle, who
stated as "Law should govern". One aspect of this is
that the government are subject to the same law as
everybody else, and accountable to law. There is a
further principle of equality, that the law should treat
its subjects equally. The law should also treat its
subjects with respect, so the rule of law requires that
the law should be capable of being known,
understood and obeyed by its subjects and should be
applied clearly, public-ally and consistently by
courts.
The rule of law- the idea that we are governed by
a set of rules that all are expected to follow. The
Romans were the first to set it in place and found it
useful as a means of governing a large and diverse
empire spanning several continents. Over the
centuries, democracies, republics, and other forms of
limited government have adopted this concept as
necessary to just government. Without the rule of
law, with a system of justice that is arbitrary, there is
no fairness, no expectation of retribution toward
lawbreakers, and no fear that prevents criminal
behavior. This leads to chaos and anarchy in a
society. In France, Dicey observed that there is no
rule of law because the government servants were
accountable to a different system of law and common
man was accounted to another system of law. The
differentiation must be rational, just and fair. There
should not be many agencies to enforce the law but
only one agency to enforce accountability on the
people.1
1
Dicey, A.V. (1885), Introduction to the Study of the
Law of the Constitution. London: Elibron

1.1 Rule by law and rule of law
Further there is a concept rule of law and rule by
law.2
Rule by law is completely different from rule of
law.‘Rule by law‟ simply means rule by any law
which is laid down by the supreme law making
authority of that country. One is not concerned about
what the law is or what its purpose is? In most of the
dictatorships and monarchies, there is a set of laws
through which the justice is administered. But, in
such countries, rule of law does not exist.While on
the other hand, “The rule of law refers to the
regulation of the relationship between the state and
individuals by pre-established and knowable
laws. The state, no less than the individuals it
governs, must be subject to and obey the law. The
state‟s obligation to obey the law is central to the
very existence of the rule of law. Without this
obligation, there would be no enforceable limit on the
state‟s power over individuals.” 3
The law in our
society is supreme. No one - no politician - no
government is above the law. We are all subject to
the law.
1.2 Definitions and Features of Rule of Law
The ideal of rule of law has been formulated in
many ways, both broad and narrow.According to the
narrow meaning, the rule of law means whether the
law is applied equally to all or not. According to the
broader meaning, the concept of rule of law embraces
human rights standards. Both the rule of law and
human rights standards should be respected, observed
and protected. There is much disagreement as to the
values or principles that it embraces. The argument
has often focused on Dicey‟ classic exposition of the
rule of law, and in particular on the first two
meanings he gives to this expression.
Dicey defines the rule of law:
Classics, 1959.
2
Bo Li, a New York-based attorney, in his essay,
“What Is Rule of Law. and
Classics, 1959.
3
Hitzig v. Canada, 2003 CanLII 30796 (ON CA)
“Rule of law means, in the first place, the
absolute supremacy or predominance of
regular law as opposed to the influence of
arbitrary power and excludes the existence
of arbitrariness, of prerogative or even of
wide discretionary authority on the part of
the government. Englishmen are ruled by
the law, and by the law alone, a man may
with us be punishment for a breach of law
but he can be punished for nothing else.”4
In the first meaning of rule of law, dicey
defines the rule of law that law is supreme and no one
above the law, what authority you have, you always
bound to law. Rule of law in first meaning says that
'howsoever high you may be; the Law is above
you'.Law is the absolute supreme and predominant as
opposed to influence of arbitrary power or
discretionary power. In this sense, Dicey contrasted
the rule of law with systems of government based on
the exercise by those in authority of wide or arbitrary
powers of constraint, such as a power of detention
without trial.A man can be punished by rule of law,
and by nothing else.
Second feature of Dicey‟ definition of rule of law:
“It means again equality before
the law, or the equal subjection of
all classes to the ordinary law of
the land administered by the
ordinary law courts, the rule of
law in this sense excludes the idea
of any exemption of officials or
others from the duty of obedience
to the law which governs others
or from the jurisdiction of the
ordinary tribunals.”5
In second meaning of rule of law, Dicey
explains that everyone is equal before law,
irrespective of rank, whether official or individual,
shall be subject to law. Dicey has often been
interpreted as requiring that there be actual equality
in terms of legal rights, powers and capacities.There
is no need for extraordinary tribunals or special
courts to deal with cases of Government and its
4
Dicey, the law of the constitution(1885), PP 202-3
5
Dicey, the law of the constitution (1885), PP 202-3

servants. Dicey accepted that administrative
authorities are exercising 'judicial' functions though
they are not 'courts'.
Third feature of Dicey‟ definition of rule of law:
“the general principles of the
constitution (as for example the
right to personal liberty, or the
right of public meeting) are with
us [the English] the result of
judicial decisions determining
the rights of private persons in
particular cases brought before
the Courts.6
Dicey‟ third meaning of the rule of law
contrasts the English legal system. Professor Dicey
says that Rights such as personal liberty, freedom
from arrest are the result of judicial decisions in
England. The rights are a result of court judgments
rather than from being enshrined in the Constitution.
The Constitution is a consequence of the rights of the
individuals. Thus, Courts are the guarantors of the
liberty. Rights would be secured more adequately if
they were enforceable in courts rather than just being
written in the Constitutional document. Mere
incorporation in a written constitution is of no use in
the absence of effective remedies of protection and
enforcement. Dicey implies that the rule of law is
safeguarded just by the common law as distinct from
statute or constitution.
Rule of law is not thoroughly explained by
professor Dicey. He prescribed just three principles
and missed key features of rule of law. Jeffrey Jo
well stated that rule of law contains several values
such as legality, accountability, certainty, due process
and access to justice. There are no any important
values in Dicey, rule of law.7
United Nations Security Council defines the rule of
law:
6
Classics, 1959.
7
Jeffrey Jo well, the rule of law and its underlying
values
“The rule of law… refers to a principle of
governance in which all persons, institutions
and entities, public and private, including
the State itself, are accountable to laws that
are publicly promulgated, equally enforced
and independently adjudicated, and which
are consistent with international human
rights norms and standards It requires, as
well, measures to ensure adherence to the
principles of supremacy of law, equality
before the law, accountability to the law,
fairness in the application of the law,
separation of powers, participation in
decision-making, legal certainty, avoidance
of arbitrariness and procedural and legal
transparency”8
This definition of rule of law prescribed that
main features of rule of law such as supremacy of
law, equality before the law, accountability to the
law, fairness in the application of the law and the
protection of fundamental rights of citizens and the
protection of civil and criminal justice in all cases.
This is the best definition of rule of law because it
covers all aspects of rule of law. In a similar vein,
The World Justice Project (WJP)defines the rule of
law as:
“a rules-based system in which
the following four universal
principles are upheld: (1) the
government and its officials and
agents are accountable under the
law; (2) the laws are clear,
publicized, stable, and fair, and
protect fundamental rights,
including the security of persons
and property; (3) the process by
which the laws are enacted,
administered, and enforced is
accessible, fair, and efficient;
and (4) access to justice is
provided by competent,
independent, and ethical
adjudicators, attorneys or
8
[United Nations Security Council (2004)The Rule of
Law and Transitional Justice in Conflict
and Post Conflict Societies: Report of the Secretary
General, August 23, 2004,

representatives, and judicial
officers who are of sufficient
number, have adequate
resources, and reflect the
makeup of the communities
they serve”9
Both the definitions of rule of law explained by
United National Council and World Justice Project
are complete definitions and co-relative, and
connected with each other. These are the best one as
compare to Dicey‟ concept of rule of law.The reason
is that Dicey, instead of not just disallowing arbitrary
powers, has also insisted that administrative
authorities should not be given discretionary
powers.He failed to distinguish between 'arbitrary
powers' to 'discretionary powers'.The concept of rule
of law described by Dicey was not completely
accepted even in his era. There is a lot of criticism
onDicey‟ rule of law while on the other hand,
definition of rule of law by WJP and UNC are
accepted all over the world as regarded as complete
and best definitions of rule of law. After considering
the definitions of rule of law, there are some main
features of rule of law. It is necessary to explain those
features for the purpose of best understanding of rule
of law and that are following:
2. Major features of rule of law
According to above mentioned definitions there
are some important features and principles of the rule
of law:
2.1 No one above the law.
The supremacy of law, which means that all
persons (individuals and government) are subject to
law. That people should be ruled by the law and obey
it
2.2 All are equal in the eyes of the law:
All shall be equal before the law:Law must be
based on the principles of equality. Equality means
that all the persons must be subjected to the same
9
William H. Neukom, The World Justice Project in
2007, (WJP), Agrast, Botero, and Ponce (2010)].
system of courts and must be governed by the same
law.
2.3 Laws must be clear and unambiguous:
The law should be such that people will be able
to be guided by it.The law must be publicized in a
manner that it may be known and understood by
ordinary People.It must be certain in the sense that it
must give complete awareness about what is right
and what is wrong so that a person can regulate
his/her conduct accordingly.
2.4 The Principle of Accountability:
Everybody must be under the same law and no
matter how high a person is, the law must always be
above him. No special privileges and immunities
should be given to any special person. Everybody
must be accountable for the violation of law and must
be accountable to the ordinary system of courts.
2.5 Fundamental rights must be protected:
The fundamental rights of the people must be
protected in every situation. Rule of law means that
the law should be based on the concerns of the
Human Rights. If a law violates human rights of the
people, then there is no rule of law.
Today these principles are commonly associated
with the documents of human rights, English Magna
Carta, the U.S. Declaration of Independence, the U.S.
Constitution, the French Declaration of the Rights of
the Man and the Citizen, and the Universal
Declaration of Human Rights.
3. Human Rights
Human rights are commonly known as
inalienable fundamental rights to which a person is
inherently entitled because she or he is a human
being. Human rights are those fundamental freedoms
and entitlements that each person possesses by virtue
of noting more than their status as a human being. To
say that there is a right to life, is to say that each
person, man or woman, boy or girl, of whatever race
or color, religion or background, has the same basic
entitlement to be allowed to live as every other
person. David Hoffman states “that the word human
stresses that these rights are based on the basic
equality of all people. They are all rights that

everyone shares, no one is born with more of a right
to life than anybody else.” 10
This idea has been
supported also by Steve Foster, stated that human
rights uphold the basic dignity of the individual as a
human being; and they should not, therefore, be
subject torture or other ill treatment, or to slavery as
such treatment is an affront to human dignity.11
In other words, we can say that human rights are
the basic rights and freedoms to which all humans are
considered to be entitled, often held to include the
rights to life, liberty, equality and a fair trial, freedom
from slavery and torture, and freedom of thought and
expression. Scholars classified human rights into two
categories such as Universal and Inalienable, and
Equal and non-discriminatoryhuman rights.
3.1 Universal and inalienable
The universality of human rights has been
recognized by the United Nations as inherent in the
very nature of human beings. The principle of
universality has been adopted by the Universal
Declaration of human rights in 1948. Religious
Scholars states that human rights are universal
because they are derived from divine revelation or
natural law while on the other hand, seculars say that
they are universal because they have a special claim
to protection, due to democratic concepts of popular
sovereignty and equality before law.
Vienna World Conference on Human Rights
explained that States are bound for the promotion and
protection of all human rights and fundamental
freedoms, regardless of their political, economic and
cultural systems. 12
Human rights are inalienable
because they are natural and inherent to human being.
They should not be snatched and taken away, except
in specific situations and according to due process.
3.2 Equal and non-discriminatory:
10
David Hoffman and John Rowe Q.C., An
Introduction to the human rights act 1998,p.3
11
Steve Foster, Human rights and Civil Liberties,
second edition, p 6
12
Vienna declaration of the world conference on
human rights 1993
This classification that we will examine is the
idea that human rights and civil liberties are a
necessary product of the notion of equality. Many
human rights in domestic and international treaties
are based on the idea of equality and freedom from
discrimination. Rights must be enjoyed free from
discrimination on a variety of grounds such as sex,
race and religion etc. Ronald Dworkin believes that
every state has a duty to treat all of its citizens with
equal rights and respect without any kind of
discrimination.13
This principle has mentioned in all major human
rights treaties and provides the central theme of some
of international human rights conventions such as
CERD 14
and CEDAW. 15
The principle of non-
discrimination is complemented by the principle of
equality, as stated in Article 1 of the Universal
Declaration of Human Rights: “All human beings are
born free and equal in dignity and rights.”16
Treaties
such as the European Convention on Human Rights
advocate that the rights contained in the convention
are available to all, irrespective of personality or
group or sex or race.17
So everybody is entitled to all
human rights equally without any kind of
discrimination.
4. Rule of Law and Human
Rights
Rule of law and human rights are interlinked
with each other. Human rights uphold and maintain
the basic tenets of the rule of law. Most international
treaties on human rights stress the fundamental
importance of the protection of such rights in
upholding the rule of law.All main principles and
13
Ronald Dworkin, Taking rights seriously
(Duckworth 1977), See also McColgan, Principle of
equality and protection from Discrimination in
International Human Rights law, 2003
14
International Convention on the Elimination of All
Forms of Racial Discrimination
15
Convention on the Elimination of All Forms of
Discrimination against Women.
16
Universal declaration on human rights, 1948,
Article 1
17
European Convention on Human Rights, Article 14

features of rule law have been vested in almost all
documents of human rights such as the English
Magna Carta, the U.S. Declaration of Independence,
the U.S. Constitution, bill of rights, the French
Declaration of the Rights of the Man and the Citizen,
united nation charter and the Universal Declaration of
Human Rights. Some of them are following:
4.1 Magna Carta
Magna Carta, the Great Charter, is one of the
most important documents of human rights in legal
history was signed by King John of England on June
15, 1215 at Runnymede., states that:
“No freeman is to be taken or imprisoned or disseized
of his free tenement or of his liberties or free
customs, or outlawed or exiled or in any way ruined,
nor will we go against such a man or send against
him save by lawful judgment of his peers or by the
law of the land. To no-one will we sell or deny or
delay right or justice”18
Magna Carta became a symbol of the rule of law.
First it explained the liberty of a man, freedom of
every citizen must be protected from arrest and
second everyone is subject to law, there must be
justice in every matter. No above the law and all
subject to law.this idea has also been supported by
“Ralph Turner”who explains: “The
Charter…established the basic principle that the rule
of law ensures personal liberty. First, the executive
power must proceed by recognized legal process,
never unlawfully…Second, no one is above the law,
however high his or her status.”19
4.2 Universal Declaration of Human Rights
Universal Declaration of Human Rights, which
has been adopted and proclaimed by General
18
Magna Carta, also called Magna Carta Libertatum (the Great
Charter of Freedoms), is an English legal charter, originally issued
in the year 1215. It was written in Latin and is known by its Latin
name. The usual English translation of Magna Carta is Great
Charter.
19
Ralph V. Turner. Magna Carta. Harlow: Pearson,
2003. Pp.1-2
Assembly resolution 217 A (III) of 10 December
1948, states that:
“It is essential, if man is not to be compelled to have
recourse, as a last resort, to rebellion against tyranny
and oppression, that human rights should be
protected by the rule of law”20
The preamble of Universal Declaration of
Human Rights states that human rights are to be
protected by the rule of law, except in circumstances
where rebellion against tyranny and oppression is the
only recourse.Rights are empty words in the absence
of a legal and political order in which they can be
realized. The rule of law is the vehicle for the
promotion and protection of all human rights.
Further, Article 7 of Universal Declaration of Human
Rights states as:
“All are equal before the law and
are entitled without any
discrimination to equal protection
of the law. All are entitled to
equal protection against any
discrimination in violation of this
Declaration and against any
incitement to such
discrimination”21
It is well accepted that the rule of law and
the maintenance of human rights are connected.
Universal Declaration first states that human rights
must be protected by rule of law and then in article 7,
describes the principle of equality of rule of law that
all persons shall be equal before the courts and
tribunals. Everyone shall be entitled to a fair and
public hearing by a competent, independent and
impartial tribunal established by law. Everyone
charged with a criminal offence shall have the right
to be presumed innocent until proved guilty
according to law.
As the Declaration on the Rule of Law states:
20
Universal Declaration of Human Rights, preamble
21
Universal Declaration of Human Rights, article 7

“All persons, institutions and
entities, public and private,
including the State itself, are
accountable to just, fair and
equitable laws and are entitled
without any discrimination to
equal protection of the law”22
.
It Improved security of land tenure, for example,
particularly for women and marginalized
communities, improved social and economic well-
being, supporting both development and peace and
security. All documents of human rights showed the
importance of rule of law for human rights. Both are
the interlinked with each other, and rule of law
protects the human rights in best way.
5. Rule of law and fundamental
rights in the constitution of
Pakistan, 1973
5.1 Rule of law
Supremacy of the law is a fundamental principle
of the constitution of Pakistan. The rule of law in
every society, plays a vital role in making it
prosperous and fair. The rule of law is a system in
which no one, including government, is above the
law; where laws protect fundamental rights; and
where justice is accessible to all. The rule of law
presupposes the absence of wide discretionary
authority in the rulers, so that they cannot make their
own laws but must govern according to the
established laws. Article 25 of the constitution of
Pakistan provides the rule of law as:
(1) All citizens are equal before law and are
entitled to equal protection of law.
(2) There shall be no discrimination on the
basis of sex.
22
UNGA Declaration on the Rule of Law at the
National and International Levels, 2012
(3) Nothing in this Article shall prevent the
State from making any special provision for
the protection of women and children.23
According to the article 25, all are equal
before the law and no above the high, what authority
they have, they accountable to law. There is no
discrimination on the bases of sex, case, religion and
nationality. It protects the fundamental rights of
citizens, equal protection for children and women.
State will do best for the protection of their rights.
Articles 8- 28 of the constitution of Islamic
republic of Pakistan provides the fundamental rights
of its citizens, so the rule of law is also the
fundamental right of the citizens of Pakistan and it is
the responsibility of the state to protect that rightand
other fundamental rights that are following:
5.2 Fundamental rights in the constitution of
Pakistan:
Human rights which are known as Fundamental
Rights has been provided in the Constitution of
Islamic Republic of Pakistan. Articles 8 to 28 of the
constitution deal with all fundamental rights provided
to the citizens of Pakistan. One by one article has
been mentioned here such as:
Article 8:No any law in the state of Pakistan shall be
constituted against the fundamental rights of the
citizens, if any law has been made against the interest
of citizens, it must be null and void.24
Article 9:No person shall be deprived of life or
liberty, save in accordance with law.This right is the
most important to all fundamental rights. It is the
basis of the rule of law. It declares that a person
cannot be deprived of his life or liberty except in
accordance with law.25
Article 10:Safeguard as to arrest and detention.All
arrested person must be informed of grounds of their
arrest, they have right to consult and defended by
lawyer of their choice, Right of fair trial under this
23
Constitution of the Islamic Republic of Pakistan,
1973– Article 25
24
Constitution of Islamic Republic of Pakistan,
Article: 8
25
Ibid..., Article. 9

article. Every person who is arrested and detained in
custody shall be produced before a Magistrate within
a period of twenty-four hours of his arrest.26
Article 11:Slavery, forced labor is prohibited and no
child under age of 14 year be employed in factory
and mines.The constitution in conformity with the
wish of the prophet has declared slavery altogether
illegal. So Slavery is forbidden and all from of forced
labor are prohibited under constitution of 1973. No
person can be forced to word against his will and no
children below 14 years of age can be engaged in any
labor works.27
Article 12:There shall be protection against
retrospective punishment.Under the constitution no
law, shall authorize the punishment of a person for an
act or omission that was not punishable by law at the
time of act or omission.28
Article 13:There shall be protection against double
punishment and self-incrimination,Double jeopardy
means prosecution or sentencing twice for the same
offence and self-incrimination means to enforce a
person to become witness against himself.
Constitution of Pakistan has negated concepts of
double jeopardy and self-incrimination.29
Article 14:The dignity of man and, subject to law, the
privacy of home, shall be inviolable. No person shall
be subjected to torture for the purpose of extracting
evidence.30
Article 15:Freedom of movement to everyone,every
citizen shall have the right to remain in, and, subject
to any reasonable restriction imposed by law in the
public interest, enter and move freely throughout
Pakistan and to reside and settle in any part thereof.31
Article 16:Freedom of assembly for all citizens,
every citizen shall have the right to assemble
peacefully and without arms, subject to any
26
Ibid..., Article. 10
27
28
29
30
31
reasonable restrictions imposed by law in the interest
of public order.32
Article 17:Freedom of association for all citizens.
Every citizen in Pakistan has right to form
associations or unions provided that such steps are
taken within the limits. Every citizen of Pakistan not
being in the service of Pakistan shall have right to
from or be member of a political party.33
Article 18:Every citizen has the right to enter upon
any lawful profession or occupation and to conduct
any lawful trade or business. There shall be freedom
of trade, business and profession for all citizens.34
Article 19:Freedom of speech for all citizens. Every
citizen of Pakistan shall have freedom of speech as
well as expression. Freedom of speech and
expression is the major fundamental right of the
people of Pakistan.35
Article 20:All citizens shall have right to have access
to information in all matters of public importance
under article, 36
Article 21:Freedom to profess religion and to manage
religious institution in country. every citizen shall
have the right to profess, practice and propagate his
religion; and every religious denomination and every
sect thereof shall have the right to establish, maintain
and manage its religious institutions.37
Article 22:No person shall be compelled to pay any
special tax for the support of propaganda of the
religion other than his own.Safeguard against the
taxation for the purposes of any particular religion,38
Article 23:Safeguard as to educational institutes in
respect of religion. The constitution provides for
safeguards in respect of religious educational
institution. No person will be compelled to receive
religious instruction in religion other than his own.39
32
33
34
35
36
37
38
39

Article 24: All citizens have right to acquire, hold
and dispose of property in any part of Pakistan.
Protection of property rights of owners.It lays down
that no person will be deprived of his property save
in accordance with law. This right protects the citizen
against arbitrary expropriation of deprivation of their
property, except in accordance with law.40
Article 25:All citizens are equal and there shall be no
discrimination on bases of sex and protection of
women and children. Free and compulsory education
to all children of age 5 to 16 by Government.41
Article 26:No discrimination in respect of access
topublic places.Every citizen irrespective of his race,
religion, caste, sex, place of birth has right to access
to all places of public entertainment or resort.
However special provisions could be made for
women and children.42
Article 27:Safeguard against discrimination in
services. If a citizen is otherwise qualified for
appointment in the service of Pakistan, he cannot be
refused appointment merely on the ground of his
race, religion, caste, sex, residence, or place of birth.
This right is, however, subjected to regional quotes
for sometimes.43
Article 28:All citizens have right to preserve their
particular language, script and culture.This article
guarantee that if any section of citizens has any other
distinct language of its own, it shall have the right to
preserve and promote it.44
6. Current situation of rule of
law in Pakistan.
The present position rule of law is extremely
weak in Pakistan. Pakistan is facing its greatest
challenge in the face of growing domestic insecurity,
suffering with widespread prevailing corruption,
violation of fundamental rights, inefficiency political
influences, inordinate delays, costly and prolonged
litigation, no access to justice, frivolous law suits and
40
Ibid..., Article.24
41
42
43
44
absence of order and security, regulatory
enforcement, civil justice and criminal justice. The
current situation of rule of law in Pakistan is
troublesome and most devastating in the 69 year´s
history of Pakistan. 45
Domestic security due to
terrorism has become a burning issue and terrorism is
a great challenge for the state, which has already
caused thousands of deaths almost in all provinces of
Pakistan. This further leadsan economic crisis with
higher cost of living and shortages of foods and
necessities of life including increasing energy
shortages.
6.1 Main reasons of the weak situation of rule
of law in Pakistan:
Why rule of law has become a burning issue in
the state of Pakistan? what are the main problems
which affecting the rule of law? There are some
reasons which resulted in the very bad situation of
rule of law. I discuss them here with the explanation
of the main features of rule of law.
6.1.1 Laws are not much clear and
unambiguous.
Statutes of Pakistan are much ambiguous not
clear. While on the other hand, low literacy rate is
one of the most devastating problem which Pakistan
facing today. Laws in Pakistan are written in such a
way that is not accessible to the majority of the
population of Pakistan. The law should be such that
people will be able to be guided by it. The laws in
Pakistan are not publicized in a manner that it may be
known and understood by ordinary People. There
must be awareness of the existing laws among the
masses. Unfortunately, all laws have been drafted in
the English language while the national language is
Urdu and state also cannot concentrate to this.
Pakistan has a low literacy rate;Pakistan has become
one of the lowest country of the world in literacy
rates. According to (UNESCO), Pakistan has 55 per
cent literacy and Pakistan has got rank of 160th in all
over the world.46
Therefore, not many are aware of
existing laws and the rights given to them by
constitution.
45
World justice project, rule of law assessment index
2015
46
The United Nations Educational, Scientific and
Cultural Organization,2015

Other reason is the conflict between the
secular law and religious law. Laws has been divided
into two classifications such as old British colonial
laws and Islamic laws. There are some laws which
are against Islam. Religious scholars always attack
them, Federal Shari-at Court declare them un-Islamic
but the problem is that Supreme Court keep them in
pendency, so that laws are always hanging. No clear
result has been seen in the past and present. The main
example is that Punjab government has, recently,
passed the law “Protection of women against
violence act 2016”47
and religious scholars protested
that act because it is against the Islamic law. Now
nobody believe that what is the legal status of that
act.So, this shows a lot of ambiguous of laws and
statutes in Pakistan. A common man does not have
approach to them. So, this is the first problem of
troublesome situation of rule of law in Pakistan.
6.1.2 All are not equal before law:
No one above the law. The supremacy of law,
which means that all persons (individuals and
government) are subject to law.The law must apply to
all equally. No one must be seen to be above the law.
A famous Justice (retd) in Pakistan, named as
Fakhrunisa Khokhar, once said that “The rule of law
must be applied equally to all persons so as to ensure
that all individuals enjoy equal rights irrespective of
race, colour, creed or sex. Justice means equality of
all persons in their legal and human rights.” But this
is a problem in Pakistan, no doubt that it is written in
constitution that all are equal before law but practice
is contrary to law, in last five years, there many cases
in Pakistan in which rich and poor not given equal
rights. Rich were always given preferences over poor,
politicians or government rulers on their own motion
infringe the rights of common people48
. A recent
example is that the present rules has killed some
innocent people in Lahore Pakistan, but no any action
had been taken against them and they are still in
action in their government job.In Pakistan, a lot of
FIR and cases on the politicians and rich people, but
47
“Protection of women against violence act 2016,
Punjab, Pakistan
48
2015. The World Justice Project® (WJP) is an
independent, multidisciplinary organization working
to advance the rule of law around the world.
they move from one place to another freely and no
one did anything against them, on the other hand, the
lives of the common men are not saved,and
punishments having hanged also are always given to
the poor people, then said, it is the law of Pakistan,
shown the judiciary is independent and decisions has
been delivered according to law. One question to
them, how much cases has been decided by judiciary
against the rich and rulers, they will always ask, no
prove against them. Un-equality of citizens before
law is the second reason of the bad situation of rule
of law in Pakistan.
6.1.3 No protection of rights of the citizens:
Third reason of the weak situation of rule of law in
Pakistan is that fundamental rights of the citizens has
not been protected in a manner as needed. Current
position of human rights in Pakistan especially in
Karachi, Fata and Balochistan is very bad. The most
fundamental principle of the constitution of Pakistan
is that the fundamental rights of the citizens of
Pakistan must be protected at all costs. They provide
the protection to the citizens from a lack of justice or
when the justice is delayed, allow people to practice
their religions and manage religious institutions,
safeguard property, provide a right to basic
education, protection from discrimination in respect
of access to public places, so on and so forth.
Nowadays human situation in Pakistan is extremely
serious. According to the international reports of
human rights, all human rights are claimed to be
violated in Pakistan.Pakistan is vulnerable on rights
of minorities, the rights of women, the rights of
children, independence of judiciary, arbitrary
detention, extra-judicial and summary execution,
torture and custodial deaths.49
For example Dr Sher
Shah Syed stated that almost25,000 to 30,000 women
die every year in Pakistan due to complications in
delivery and some other problems of pregnancy.50
In
spite of that the fundamental rights are written in the
constitution, but they are not much saved as must be,
the position of rights are not so good nor so bad but
49
international and domestic human rights NGOs,
the international and domestic press, and the
documentation of the UN human rights , reports
50
Dr Sher Shah Syed, secretary general of the
Pakistan Medical Association,.

reason able according to rule of law assessment.51
The Pakistan media also does not play the vital role
for the human rights of a common man.Other main
issue in Pakistan which affects the rights of citizens is
Order and security situation which has become one of
the devastating issues which has affected the rights of
citizens largely in Pakistan.
6.1.4 No Proper accountability at the
public service level
According to rule of law, all individuals who is either
citizen or ruler must be held accountable.Everybody
must be accountable for the violation of law and must
be accountable to the ordinary system of courts. But
unfortunately, this is also not good in Pakistan, public
officers never been taken into consideration of
accountability, there are a lot of cases of murders,
money laundering and corruption, but no action has
been taken against them.52
Recently prime minister of
Pakistan involved in Panama Leaks, is the main
example of none accountability at the public
level.Many other Rulers also involved in corruption
in Panama Leaks but no action has been taken against
them.53
Pakistan is the 117 least corrupt nation out of
175 countries, according to the 2015 Corruption
Perceptions Index reported by Transparency
International. Government servants, positions and
other people involves in the corruption but no
accountability there. All these persons carrying on
their position in government but no action has been
taken against them.This is another reason of bad
position of rule of law in Pakistan.
6.1.5 No accessible and cheaper justice
without delay:
According to rule of law, accessible and cheaper
justice must be available to every citizen. Citizens
51
2015
52
2015
53
Panama Leaks 2016,The Panama Papers are a set
of 11.5 million leaked documents detail that detail
financial and attorney–client information for more
than 214,000 offshore companies associated with the
Panamanian law firm and corporate
service provider, Mossack Fonseca.
must know that they have a legal recourse to a
grievance. For this it is important that justice must
not only be done but also seen to be done. This
famous principle of jurisprudence was laid down in a
benchmark case54
„Not only must the justice be done,
it must also be seen to be done.” In Pakistan, a very
expensive procedure for justice, a common man does
not have an approach to go to the courts. This is the
reason, Pakistan has got 91 position in this regard out
of 102 countries of the world according to rule of law
assessment. 55
The survey also evaluated the
dispensation of justice: for civil justice Pakistan was
ranked 91 and for criminal justice 94. Ideally, a
justice system must be accessible, affordable, free of
corruption and inordinate delay. But Pakistan does
not have a better system of dispensation of civil
justice and criminal justice. Pakistan has become a
center for sectarianism, militant outfits and terrorism
and has a large amount of corruption. They have
become a threat to the peace-loving citizens of
Pakistan. In this situation, how laws shall be enforced
and justice will be prevailed and every citizen will
have the easy access to justice.Dale Carpenter, an
American legal commentator, says “If citizens cannot
trust that laws will be enforced in an evenhanded and
honest fashion, they cannot be said to live under the
rule of law. Instead, they live under the rule of men
corrupted by the law.” 56
So this is the most
devastating and embarrassing situation for Pakistan
and embarrassing reason of weak position of rule of
law in Pakistan.
54
R v Sussex Justices [1924]
55
2015
56
Dale Carpenter. Flagrant Conduct: The Story of
Lawrence v. Texas

7. A comparative studyof rule of law in
Pakistan and other countries
If we try to compare the rule of law in Pakistan
with other countries, then we know that Pakistan has
a more bad situation of rule of law than other
countries. According to the assessment of World
Justice Project (WJP) 2015, Pakistan is at number 98
out of 102 countries of the world in the position of
rule of law. World justice project made an assessment
of the rule of law in the 102 countries and declared
the positions of the countries in which, Denmark is at
one, United Kingdom at 12, United States of America
at 19, India at 67, while Pakistan at 98 out of 102.
According to the WJP, this assessment of rule of law
was made on the bases of nine factors including
constraints on government powers, absence of
corruption, open government, fundamental rights,
order and security, regulatory enforcement, civil
justice and criminal justice. 57
We always try to
compare everything of Pakistan with India, but it is
drastic to say that India has got 67 position out of 102
countries which is much better than Pakistan.
According to this report, these nine factors are not
much stabled in Pakistan. India 31 points is ahead
than Pakistan with respect of rule of law. Pakistan is
more behind than other countries and it has a mush
troublesome position of rule law as compare to
others. There is overall position of rule of law in
Pakistan according to World Justice Project, that
states (Table 1).
57
2015

Table 1: Overall Position of Rule of Law in Pakistan According to World Justice Project 2015
This is the scoring points table of Pakistan in the
WorldJustice Project 2015, rule of law on the bases
of nine factors which is too much low as compare to
the other countries of the world. In World Justice
Project assessment, Fundamental Rights/ human
rights has also been taken as one of the factor. The
current position of fundamental rights is also not so
good as compare to other countries, Pakistan has got
92 rank out of 102 countries. This Factor measures
the protection of fundamental human rights,
including effective enforcement of laws that ensure
equal protection, the right to life and security of the
person, due process of law and the rights of the
accused, freedom of opinion and expression, freedom
of belief and religion, the right to privacy, freedom of
assembly and association, and fundamental labor
rights, including the right to collective bargaining, the
prohibition of forced and child labor, and the
elimination of discrimination.58
According to the WJP, Fundamental Rights
ranking, it has been observed that 102 countries have
been selected for the ranking wherein, Finland is on
the top of the ranking list while securing score of
0.91, Denmark stands on 2nd with score 0.90,
Germany on 6th with 0.87 score, UK on 14th with
0.79 score, United States of America with 0.73 score
stands on 26th last but Pakistan stands on 92nd
number with 0.39 score. Turkey, Egypt, China and
Iran are below in the ranking than that of Pakistan.
This is the comparison of rule of law in Pakistan and
other countries of the world by referring the World
Justice Project rule of law assessment 2015. So the
current position rule of law and fundamental rights is
58
2015
so weak and not much stable in Pakistan as which
needs to make progress in every field of life and get a
good name in the map of the world.
8. Conclusion &
Recommendations
Rule of law is a legal maxim that suggests that
governmental decisions be made by applying known
principles. The phrase introduced into 17th century
and got popularity in the 19th century by British
jurist A. V. Dicey. Rule of law implies that every
citizen is subject to the law. It contradicts the idea
that the ruler is above the law, for example by divine
right. It is well accepted that the rule of law and the
maintenance of human rights are
connected. The Universal Declaration of Human
Rights states in its preamble that human rights are to
be protected by the rule of law, except in
circumstances where rebellion against tyranny and
oppression is the only recourse. Ideally, people
should want to follow the law, and trust that legal
processes will provide just outcomes.
It has known that existing condition of rule of
law and human rights in Pakistan is not good nor
stable, it needs improvements so that Pakistan would
get a good name in the map of the world. The
absence of rule of law has often been cited as key
hurdle for good governance in Pakistan. It is a
fundamental notion for a democratic process and
development. My recommendation is that the
advocacy of rule of law and its enforcement is not
merely and exclusively the responsibility of the state
but in fact, all institutions of the state and society
need to come together to ensure and promote this
Factor Trend Factor Score Regional Rank Income Rank Global Rank
Constraints on Government
Powers
0.49 3/6 13/25 67/102
Absence of Corruption 0.35 4/61 7/25 83/102
Open Government 0.45 5/6 19/25 83/102
Fundamental Rights 0.39 5/6 24/25 92/102
Order and Security 0.3 6/6 24/25 101/102
Regulatory Enforcement 0.36 6/6 25/25 99/102
Civil Justice 0.4 4/6 20/25 91/101
Criminal Justice 0.31 5/6 22/25 94/102
Overall Score 0.38/100 25/25 5/6 98/102

essential dictum for upholding order, stability,
tranquility and governance.
My other recommendation is that Pakistan needs
to stable and improve some legal systems and
principles such as a Just Legal Framework, public
order, principle of accountability and lawfulness
where laws are consistent with international
human rights norms and standards, where laws are
enforced equitably; where the fundamental rights of
the citizens are protected, where criminal and civil
justice are cheaper and easily accessible, where
citizens and government servants are legally
accountable for their actions and where the judiciary
is independent and free from political influence.
To sum up, I recommend establishingsuch a
system of law, where everyone is bound to law and
obey to law. That system is called the “Rule of Law”.
References
1.AW Bradley and KD Ewing, constitutional and
administrative law, 14th
edition, p.p 95-97 And 12th
edition p.p. 104-5
2.Bo Li, a New York-based attorney, in his essay,
“What Is Rule of Law.
3.Constitution of Islamic Republic of Pakistan, 1973,
Articles 8-28
4.David Hoffman and John Rowe Q.C., An
Introduction to the human rights act 1998,p 3
5.Dicey, A.V. (1885), Introduction to the Study of the
Law of the Constitution. London: Elibron, Classics,
1959, pp 202-3
6.Hilaire Barnett, Constitutional and administrative
law, 5th
edition, p.p. 88
7.Jeffrey Jo well, the rule of law and its underlying
values
8.Magna Carta, also called Magna Carta Libertatum
(the Great Charter of Freedoms), is an English legal
charter, originally issued in the year 1215. It was
written in Latin and is known by its Latin name. The
usual English translation of Magna Carta is Great
Charter.
9.Panama Leaks 2016, The Panama Papers are a set
of 11.5 million leaked documents detail that detail
financial and attorney–client information for more
than 214,000 offshore companies associated with the
Panamanian law firm and corporate
service provider, Mossack Fonseca.
10.Steve Foster, Human rights and Civil Liberties,
second edition, p 6
11.United Nations Security Council (2004), The Rule
of Law and Transitional Justice in Conflictand
Post Conflict Societies: Report of the Secretary
General, August 23, 2004,
12.Vienna declaration of the world conference on
human rights 1993
13.William H. Neukom, The World Justice Project in
2007, (WJP), Agrast, Botero, and Ponce (2010)]
14.World justice project, rule of law assessment
index 2015. The World Justice Project® (WJP) is an
independent, multidisciplinary organization working
to advance the rule of law around the world.

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