Rules and Laws
Pakistan has a very baffling relationship with the Rule of
Law. Red traffic lights are a nuisance,
double and triple parking is tolerated so long as a little bit of road is left
for cars to wind through, its simpler and quicker to bribe one’s way out of any
difficulty, to name only a few visible examples. Yet everyone has their eyes
turned to the higher courts awaiting their judgements.
Many Freedom Fighters who enabled the birth of Pakistan had
a background in law: Allama Iqbal, Muhammad Ali Jinnah, Khan Abdul Qayyum Khan,
Abdur Rab Nishtar, Qazi Isa, Huseyn Shaheed Suhrawardy, Chaudhry Rahmat Ali, I.I.
Chundrigar, Fazlul Huq, Khwaja Nazimuddin. Even Sir Sayyid Ahmed Khan had an honorary law
degree and served as a judge.
The failed 1857armed uprising against British Rule, transformed
into a sustained strategy of resistance enabled by familiarity with British law
acquired by an Oxbridge education, that also allowed a comparison between British
Law at home and Colonial law in India.
So what is the Law? And why does it matter so much? Humans, in fact all of nature, have always
followed rules. Rules are enforced privately such as by parents, office policies
or rules of Art. Laws are applied publicly to regulate and control the behavior
of people to maintain the authority of the state. Law regulates by fear of
consequences.
The underlying principles of Law are ethics and morality.
Divine laws as prescribed by religions, are considered to be eternal. Man-made
laws may differ from culture to culture and are subject to change. Ensuring the
rule of law in Pakistan, necessitates revisiting laws inherited or adopted, to
ensure they address the needs of its citizens.
In US Judge Potter Stewart’s oft quoted words “Ethics is
Knowing the Difference Between What You Have the Right to Do and What is Right
to Do.” Ethics is literally the science of morals. Ethics or akhlaqiyat, is
used widely as a guiding principle for human behaviour: medical ethics,
journalistic ethics, ethics of research, business ethics, and copyright ethics
amongst many more.
Law manages the balance between human rights and
obligations. Equality and human rights are fiercely protected human concepts
while Nature, according to physicist, Marcelo Gleiser, ‘recognizes no equality
at any level of its order’, termed by author Boyd Rice as “nature's eternal
Fascism.”
Colonisers created laws for their own countries based on
human rights, but created different and sweeping laws (or sometimes their
absence) to control colonised people in another kind of fascism. The many
protests of the Freedom Movements centred around this duality. In
post-independence nations, the elite of those countries, as well as
neo-colonialists, appropriated these laws to maintain their power and authority.
As J. Edgar Hoover put it “Justice is incidental to law and order”.
Most Divine laws such as Dharma or the Ten Commandments are codes
of conduct between people. The Quran widens the scope by appointing humans as
collective representatives or khalifas of Allah, to maintain the balance in
everything created by Allah. The Quran, rather than defining right and wrong in
the modern sense of the words, uses the terms Adl (the right compensation) and
Ihsan (excellence and perfection in the most beautiful way) as guiding
principles. Since Allah created all things in balance, humans are tasked with
maintaining this balance, using the gift of rationality and the burden of
accountability. The word sharīʿa
literally means the fountainhead that quenches the thirst of living beings or
the way to goodness. The ideal human has akhlāq-e-hasana (praiseworthy morals and manners). Through
defining “rights” (ḥuqūq), temporal laws intend to establish peace, tranquility
and safety, a secure homeland, adequate shelter, financial success, thriving
commerce, and lack of oppression. The law is above the state. There is no
immunity to people in high offices. The accused is innocent until proven
guilty, with the burden of proof on the accuser. No citizen can be ordered to commit a sin, a
crime or an offence.
Unlike Hobbes who determined humans have a "natural
proclivity...to hurt each other", the Quran states humans have a natural intuitive
(fiṭrah) liking for the path of righteousness, from which, it must be added,
they are far too often misled.
Durriya Kazi
Karachi
August 13, 2023
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