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IMPACT OF GOVERNANCE WITHOUT LAW

ByRiaz Hanif Rahi, Advocate Supreme Court. (1) CEO: The Jurists Foundation of Pakistan (Regd.)

Universe is governed by Divine Law but every society of the world comprising 195 Countries has its own laws which, if contrary to the natural principles, require amendments and natural principles have prevailing effects due to having consistency, uniformity and Continuous Supervision. The origin of law too started with the origin of man when Allah Almighty asked, “Am I, not your Lord ;[1] then, human beings testified that, (Allah is our Lord) and this promise is recalled by the  Muslims before the start of every  prayer at the time of niyyat. This agreement bind the people till the day of Resurrection. The number of Divinely revealed laws are one hundred and four(104); Allah sent fifty pages to Sheeth(Seth); Allah sent thirty pages to Idrees; Allah sent ten pages to  Ibrahim; Allah sent ten pages to Musa before the Torah and Allah sent down the Torah(Tawraat) the Gosphel (Injeel), the Psalms(Zaboor) and the Furqan (Quran)[2]  but students of law in the contemporary world including Pakistan are being taught about the origin of the word law from the latin and most important sets of laws in history was the code of Hammurabi[3]  written down in stone 1772 BCE in Mesopotamia and was known as Code of acceptable behavior in the society. Civil law’s foundation is described  in ancient Roman law and this type of legal system is based on complying with enacted laws [4]. Common law originated with England’s monarchy and this legal system is based on precedents. Chinese law is influenced by confucian code of conduct. King John signed the famous bill of rights known as Magna Carta on June 15, 1215 but this law faced the inceptional difficulties and then it was reshaped in 1297 and two principles express in it are resonating to this day. [5]

“No free man shall be taken, imprisoned, disseised, outlawed banished or anyway destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers or by the law of land”.

“to no one will we sell, to no one will we deny or delay, right or justice”.

But the Holy Quran was revealed prior to this legal instrument in the year 609-632 CE (7th Century) and carry basic principles on which laws have been codified e.g., “right of hearing” is now the well recognized right and Chicago incident on 1st May 1886 has made it more important to the extent that 1st May is now celebrated as a universal holiday. Actually, 4000000 workers went on strike whose claim was to fix the working hours. On the 3rd day of strike, the police shot at unarmed workers, killing several of them. Next day, there were more protestors and someone threw a bomb as a result of which seven police officers and four workers were killed due to the police shooting just after the bomb. The person who threw the bomb was never identified, but eight workers were arrested. Seven of them were sentenced to death and one of them was sent to prison for 15 years. However, sacrifices resulted positive and eight hour working day became the law in USA in 1892[6] but this right is already established in the Holy Quran in these words, “only those who listen can respond to the call of the truth”[7] and Allah Almighty himself provided defense to Shaitan/ Iblees. Another common provision of approximately in every statue of the world is about the issuance of Notice which is the  method  of our creator and Allah Almighty has never ruined any nation until informed / noticed by sending Messenger / Prophet[8] . A.V. Dicery is an English philosopher emphasized more on an important component of rule of law which is, “equality before the Law”(9)  but no country of  the world has yet become able to apply this principle in the form of law in its true spirit  and there are classes and communities in every society who are enjoying immunities and exemption. In some countries like Pakistan, there are great disparities and the laws are being designed  to benefit the few at the expense of many, these are neither fair nor consistent  but Allah Almighty has said in Holy Quran,(10) “O Believers! Stand firm for justice as witnesses for Allah even If it is against yourselves, your parents or close relatives. Be they rich or poor; Allah is best to ensure their interests. So don’t  let your desires cause you to deviate from justice.” Allah Almighty uphold the merit and implemented the provisions by rejecting mercy petition of his prophet Noah in favor of his son and said that , he is not of your family(11) and also rejected pray of his another beloved prophet Hazrat Ibrahim for the  forgiveness of his father(12) but men have proved weak as provided in A-Quran(13) . The principles enunciated in Quran require no modification and amendment and many basic principles are yet to be codified in the  form of statutes like prohibition of  Riba and He has made interest fruitless and charity fruitful(14). Actually, our creator wants to see an individual’s lifestyle as dynamic which is acceptable in all societies of the world as against the static mind. But people like easy ways of earnings under their sweet wishes and choices in order to attain a luxurious lifestyle.

Powerful office bearers enjoying immunities in Pakistan often become adventures when they attempt to launch their own policies beyond the laws claiming their unilateral actions to be in good faith but governance under policies based on liking and disliking can never be termed as good governance as it promotes person specific decisions which  invite inequality and inequality invite conflicts. Mr. Iftikhar Muhammad Chaudhary after his restoration in the year 2009, introduce judicial policy (15)under arbitrary law i.e., National judicial policy making committee ordinance 2002 under which the constitutional independence of High Court were curtailed but he got personal advantages from this platform including the rigging in 2013 General Elections by acting as Chairman Law and Justice Commission and keeping the ROs under his influence in order to reciprocate favor with PML(N) which had played role for his restoration. Policy framework remain dominant over Judge’s appointments (without advertisement & competitive process) and court decisions are also influenced which is continuously causing injury to good governance.

             The defensive stance of late Pervez Musharraf after the incident of 9/11 in the year 2001 accepting involvement of Al-Qaeda’s Terrorist Attack on World Trade Center without formal evidence has thrown  the Country under  serious security risks & the  Independence of state is  in Jeopardy although it has now become clear that it was a remote control computerized attack and Jihadi organizations were blamed for collateral reasons to control the world by defeating the people having capacity to resist either by killing them or     creating deterrence for others. Many innocent citizens, security personal and fighters are being killed beyond law on the basis of arbitrary assessment and under extraneous considerations. Investigation of borrowed techniques Like blindfold and black buck over the heads of detenues and tightening of hands with English handcuffs in order to keep them under stress and psychological pressure are being adopted and internment cells in the Style of  US Military Prison in Guantanamo Bay have been established where many citizens have been treated merely  on the basis of collateral purposes. This has been done on receiving meager rent beyond the mandate of Article 245 of the Constitution (16) by the  institution which is major beneficiary of the state budget contributed by the taxes of the People and under duty to protect them rather to harm by playing role as front line ally of self-styled US mission, “War against Terrorism”. In the famous autobiography of Pervez Musharraf, “In the line of fire,” (17) he conceded that enforced disappearances are the state’s undeclared policy but State has earned Millions of Dollars. His Statement at page 237 of his book is reproduced hereunder:-    

“We have caught many, many others. Some are known to the world, some are not. We have captured 689 and handed over 369 to the United States. We have earned bounties totalling millions of dollars. Those who habitually accuse us of ‘not doing enough’ in the war on terror should simply ask the CIA how much prize money it has paid to the government of Pakistan.”   

In addition to enforced disappearances, the country is also facing another difficult situation of suicidal attacks started after Lal Masjid Operation in the year 2007 which were also carried out under extraneous considerations but change of loyalty and accountability has not been noticed by any constitutional court of Pakistan although the wrong is continuous in nature which is making the country unstable. A US military prisoner’s camp was established in Guantanamo Bay, Cuba in the year 2002 after the 9/11 incident where Mujahideen were detained in thousands out of which many were transferred and some died while in custody. The inhuman treatment of the US military prisoners in Guantanamo Bay has been slowed down due to the enlightened voices against human rights abuses and  now US mission against terrorism has also become  slow after  disclosure of actual facts against 9/11 incident but in Pakistan, an atmosphere dominated by fear is still prevailing & many useful and productive citizens have been made missing. They have been tortured and even died during custody but the relevant quarters are relaxed as they consider themselves above the accountability by ignoring that  natural reaction can’t be prevented which germinate private revenge & at least   annoyance causing the social integrity weak   which aspect of the issue  is being ignored by the Major Decision Makers of the Country. According to the reports i.e. National Counter Terrorism Authority, ISPR & articles available on net, Pakistan has lost 83000 lives out of which 35% Civilians, 11% Security personals & 54% terrorists from 2001 to 2022 and this number is now touching the figure of  lack and many weak human beings including women and children have been killed but it is astonishing that we are Muslims but why not ready to know that Allah does not like negative thoughts to be voiced—except by those who have been wronged(18). Moreover, blood of a Muslim can not be  wasted under doctrine of Qasama and it has to be paid as ordained in Holy Quran either death is deliberate(19) or it is accidental.(20) We have incurred financial loss more than 35 trillion rupees but earning in shape of dollars is many times low which too is illegal & at the cost of noble passions of Jehad. Allah Almighty has said that Believers fight for the cause of Allah, whereas disbelievers fight for the cause of the Devil. So fight against Satan’s ˹evil˺ forces. Indeed, Satan’s schemes are ever weak(21).Likewise, our  Lord are reminded us that Wherever you may be, death will overcome you—even if you were in fortified towers(22).This loss has been caused without democratic permission of the country with no judicial check.

Intelligence agencies can’t directly intervene in the era of governance except  to help regular statutory and constitutional bodies. Unfortunately, they are becoming more wiser than law & influencing state functionaries merely on the basis of personal decisions backed by international policy, wishes, choices & pleasure of their command and by this manner, laws are becoming redundant and country is being thrown to the old age when there were no written laws & disputes were resolved on the basis of liking and disliking by accepting weak, ineligible, and incompetent people for governance who have been given dual and triple charges. Even laws framed and amendments brought in existence under their influence are short lived being contrary to the  principle of natural justice and power without jurisdiction is of no use. King can do no wrong  principle is no more alive in UK and after lengthy debate for centuries, bill of rights was approved by the British parliament in 1689 and made the parliament as supreme and kind bound by law. The defined role of agencies would also serve as notice to the general public & in conformity with rules of natural justice as Allah Almighty hasn’t destroyed any nation without sending information through messengers as provided in Holy Quran. Moreover, this notice is essential even in matrimonial life as no legitimacy can be attached to the child born out of illicit relationship & Nikah is also a public notice and mode to provide legitimacy.

Surprisingly, despite thousands enforced disappearances, no court of Pakistan has dared courage to impose exemplary damages/costs & fine on the government for failing to provide constitutional protection of life & liberty although there are numerous judgments under “Public Law Remedy,”(23)  doctrine of “Vicarious Liability,”(24)  “Cost as fine in Civil Contempt”(25) in order to accommodate an aggrieved party but also to realize that this may not happen in future. Therefore, decisions rendered by our constitutional courts on the subject are still lacking in describing the whole truth. In, Air Marshal (Retd.) Muhammad Asghar Khan Vs. General (Retd.) Mirza Aslam Baig(26)  , it was observed that all officers who obey unlawful commands are individually liable but no liability was fixed on anybody despite the fact that Rs. 140 million were spend to support particular group i.e. IJI against PPP in the 1990 General Elections. While deciding HRC No. 29388-K of 2013 in Para No. 18(2)(27) it has been observed that there is no law for unauthorized detaining undeclared internees except provincial law which is applicable in KPK. As far as the rest of the country is concerned there must be some legislation to control such activities. This verdict is yet to be implemented. In SMC No. 7/2017 popularly known as Faizabad Dharrna Case, Supreme Court asked the Attorney General to inform about the laws, rules and regulations governing the ISI and its mandate and in Para 42, it is concluded that; role of intelligence agencies must be structured. While deciding a case, in Islamabad High Court Mr. Justice Athar Minallah(28) observed that enforced disappearance is a crime against humanity.  Government must be fined for its failure to protect the liberty of its citizens although a number of recovered missing persons are on the record of courts and no prosecution has yet been successful. Therefore, serious notice needs to be taken for violating law and constitution as people having no defined power can’t harass the public.

            Spy intervention to control the people & government functionaries already controlled by law and considering the enlightened public like journalists, advocates and other productive members of the society as terrorists while they are constitutionally authorized contributors in national development to upgrade laws and make proposals for its implementation. This approach is making the country a graveyard of live people because civilians can’t be compelled to obey like soldiers in the Regiment. The country is going under unprecedented experience ever in any country of the world and people of Pakistan have been thrown to the period when there were no Municipal Laws which can’t be made redundant due to the exercise of negative power under no law, the country’s development is going backward making the saying, “Absolute Power Corrupt Absolutely” proving it as true. This court is under duty to enforce article 245 of the Constitution in its true letter & spirit without any fear & favor just for the cause of  rule of law.UN Secretary General kofi Annan in 2004 preponed(29) concept of rule of law.

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 which are consistent with international Human Rights norms and Standards. It requires, as well, measures to ensure adherence to the principle 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.

            The Constitution of Pakistan opens with the words that sovereignty over the entire Universe belongs to Allah almighty alone and the authority to be exercised by its people within the limits prescribed by Him as a sacred trust. Therefore, a trustee is always accountable and under this fear, chances of using absolute, unguided and unfettered power become minimized. All powerful people are expected to follow law as the system of Allah Almighty is based on law and that too, written law. Otherwise , under the prevailing situation of uncertainty , the talented people are leaving to the countries where governance is based on law & where their basic & fundamental rights would be respected. According to Economic Survey of Pakistan for 2023-24 & data from Bureau of Immigration as reported in media,(30)  three times more than in 2021, the people have been migrated for their safe future in fifty countries of the world but the government is perceiving it in different sense that people are leaving the country for earning and they will bring investment & remittances in the country without realizing that leaving the country is a difficult decision because people have childhood affiliations with their surroundings, near relatives, friends, resources etc. We have to stand with strong commitment that law is for the society what the oxygen is for the body and when beauty of the universe lies in the application of Divine law by our creator; then, we have also to follow this for our organization, prosperity, solidarity and wellbeing’s in order to enjoy real pleasure of life with the enforcement of suitable laws and the law only.

 

REFERENCES:-

  1. Sura Al-A’raf Ayat no. 172.
  2. https:II study.com
  3. https: syudy.com
  4. https: online.law
  5. Https: en. Wikipedia
  6. https:learnenglish britishcouncil  (Intentional worker’s day).
  7. Sura Al- An’am Ayat no. 36
  8. Sura Al- Israa, Ayat 15, Ash-shu’araa Ayat 208, Al-Qasas, Ayat 59
  9. https;II uoIIb.com
  10.  Sura Nisa Ayat No. 135
  11.  Sura Hud Ayat No. 46
  12.  Sura Al- Tauba Ayat 114
  13.  Sura Nisa Ayat No. 28
  14.  Sura Al- Baqra Ayat 276
  15. PLD2010 Jou. 7
  16. Constitution of Pakistan
  17. In the line of fire
  18. Sura Nisa Ayat 148
  19. Sura Al- Baqra Ayat 178
  20.  Sura Nisa Ayat No. 92
  21.  Sura Nisa Ayat 76
  22.  Sura Nisa Ayat 78
  23.  2012 SCMR 1549, AIR 1993 SC 1960, AIR 1983 SC 1086, AIR 186  SC 494, AIR 2018 SC 5112
  24.  PLD 1963 SC 623, PLD 1975 Baghdad-ul-Jihad II, AIR 1990 SC 513
  25.  AIR 1984 SC 1026
  26.  PLD 2013 SC 1
  27.  PLD 2014 SC 305
  28.  2018 CLC1858
  29.  The rule of Law: Origin, prospects and challenges by Mathieu     
  30. Burnay  Pakistan Today dated 23-06-2024.

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