Rule of law: real parameters

IN a meeting with James I (1603-1625), Sir Edward Coke (1552-1634), Lord Chief Justice of England, told the king that he could not take the action he contemplated because it would be against the law. Horrified, the king roared: “Do you mean that I am under the law?” Calmly, the Chief Justice observed that while the king ought not to be under any man, he was indeed under the law.

Almost two thousand years before James and Coke, Socrates (399 BC) had been using deductive reasoning and analysis (by asking questions and subjecting answers to rigorous examination) to expose the weaknesses of received opinion and conventional wisdom. The Athenians convicted him of corrupting the youth and sentenced him to death.

Plato recounts the last few hours of his life in one of his “dialogues” (Phaedo). As Socrates awaited execution, his friends surrounded him. They had already bribed the jailer, made arrangements for transportation, and were now urging him to escape from prison. Socrates declined, arguing that the law of the state must be obeyed, even if it was a bad law, for if it became acceptable to disobey it, cities would come to ruin.

In his celebrated essay, ‘Civil Disobedience’, Henry David Thoreau (1817-1862) maintained that a man of honour must follow his conscience rather than the law, if the two came in conflict, for laws, like the governments that made them, were often wrong and unjust. In such instances, he added, the individual had not only the right but the obligation to disobey and resist the law by all non-violent means within his reach. Fill up the jails, he said, which would force the government to repeal the unwanted law. Thoreau’s reasoning is believed to have influenced the thinking of Mr M.K.Gandhi in India and Rev. Martin Luther King, leader of the black people’s liberation movement in the United States.

James I may have been behind the times in his own country. But, for centuries before and after him in much of the world, rulers have acted from the premise that their word was law. Made for others, it applied to them only if they so desired; they could ignore it when it became burdensome, and in any case they could change it at will.

Civil disobedience is common in our subcontinent, but at the level of official theory, the position of Socrates is the one more generally accepted. If the law is bad or unjust, get it changed through prescribed ways and means, but obey it as long as it remains on the statute books. What about the primacy Thoreau assigns to conscience?

This is indeed a difficult question. We cannot simply dismiss him out of hand. Distinctions between a good law and an unjust law, between an ordinary law and a “higher” law, between the law of man and the law of God are all well known and respected. Ask any “true” Muslim, or for that matter a good Jew, and he will advise you to disobey a law of the state if it is repugnant to the law of God.

On the other hand, how can we be sure that each individual’s conscience is informed by higher moral values and principles, or that his thinking on issues in debate is not idiotic? Occasional disobedience of an unjust law by single individuals may be praiseworthy and it may also be instructive. But if the idea that one may disobey a law that is bad in one’s own view were to gain general acceptance, chaos would ensue.

One may opt for reserving civil disobedience for occasions when issues of great moment are involved and, with regard to which, society and polity are being untrue to their own professed values. For instance, having justified their revolution on the basis of the “self-evident truth” that all men are created equal, America’s “founding fathers” had no business denying equal rights to their Black population. Civil disobedience to right this grievous wrong was justified. But we must guard against resorting to it on frivolous grounds.

Turning more specifically to Pakistan, we encounter a very complex situation. In certain contexts the rule of law prevails, binding not only private persons but also public authorities and officials. Courts may invalidate acts of government on the ground that they violate a relevant law, and they may annul laws because they have been found to be repugnant to the Constitution. Individual citizens may sue a public authority to get whatever is owed to them, including compensation for damages resulting from the earlier denial of their rights.

Books carry thousands of laws and tens of thousands of rules to regulate the government’s internal workings, interaction between individuals, associations, governmental and non-governmental agencies and institutions. Considering the sheer volume of law and regulation, an outsider might get the impression that here in Pakistan we had a government of laws, not of men. But he would soon find that such, alas, is not the case.

It is a commonplace that governmental corruption-mostly in the forms of bribery and nepotism — exists in Pakistan on a massive scale, which means, ipso facto, that violation of the law is equally pervasive, inasmuch as each instance of taking a bribe or indulging in nepotism constitutes a violation of the law. Who in Pakistan is then under the law? Any beyond those who have no other option?

There may indeed be a few who will live by the law in all circumstances regardless of the resulting inconvenience. I have known at least a couple of such Pakistanis. Many more will obey the law regarding, let us say, murder, rape, robbery, and theft even if they thought they could get away with these acts, not only because the law but their own sense of morals forbids them

The vast majority of our people, both high and low, will disregard burdensome laws if they do not expect to suffer serious penalties. Such cases will usually arise when persons have to deal with public authorities and officials. Even persons we generally regard as “nice” — doctors, lawyers, actors, singers and dancers — will cheat in filing their income tax returns.

The inclination to ignore or violate the law is not related exclusively to financial gain. James I was not looking for ways of making money when he proclaimed that he could not be under the law. Kings and dictators act in an arbitrary or whimsical fashion because the ability to do as the spirit moves them gives them a good feeling. In many other instances they like to be able to do away with actual or potential opponents in their quest for power after power until they have become absolute rulers.

Ghulam Mohammad removed Prime Minister Nazimuddin, Iskander Mirza forced Prime Minister Suhrawardy out of office, Ziaul Haq fired Prime Minister Junejo, and Ghulam Ishaq Khan dismissed first Benazir Bhutto and then Nawaz Sharif. These were primarily acts of self-assertion on the part of the head of the state in each case to show all concerned that he, and not the prime minister, was the real “boss” regardless of what the Constitution or the tradition of parliamentary government might say.

Prime ministers, provincial chief ministers, higher civil servants, and others in superior positions have been no less arbitrary in dealing with subordinates who showed signs of having minds of their own and with defiant opponents. Some of the latter have been assaulted, tortured, detained without trial for extended periods of time, or made to run from one court to another to defend themselves against numerous allegations at the same time in trials that have gone on for years. On the other hand, when found expedient, individuals charged with serious crimes such as murder have been elevated to high public office.

Successive governments, including the present one, have maintained an accountability bureau for catching and punishing corrupt politicians and officials. But its performance, past and present, has caused a widespread impression that, more than a cleansing agent, it is an apparatus for hounding those towards whom the current regime has chosen to be unfriendly.

For generations we have willingly followed tradition and parts of the law of God. We have obeyed the law of the state mostly out of fear: not from the conviction that it deserves to be obeyed because it is the law. We have not been taught to respect the law as such. The reason may well be that in our historical experience law has worked more often as an agent of coercion than as a liberating or otherwise beneficial force. Rulers who made and enforced the law were feared but rarely, if ever, held in high regard.

If respect for the law is to be cultivated in our society, the process must begin at the top. If presidents and prime ministers remain free to act outside the law, so will their subordinates down to the police constable. Let those who make laws show respect for them and, at the same time, refrain from making unjust and self-serving laws.

And, finally, let us hope that our rulers will not follow Ziaul Haq’s precedent of quoting the scriptures in support of his arbitrary exercise of power. Let us hope also that General Musharraf’s recent statement (February 5) that his authority to rule comes from God, and that his acts should therefore be regarded as divinely approved, was not intended to be taken literally or seriously. Even as an adventure in poetic exaggeration or metaphorical expression, it is extremely disconcerting. But of this more later.

Hot air

THERE was more air than substance in the global warming policy President Bush outlined last week, a disappointing programme that aims too low, asks too little and waits too long to assess the need for tougher action.

The president spoke of America’s commitment “to stabilize atmospheric greenhouse gas concentrations at a level that will prevent dangerous human interference with the climate,” but set a goal to slow, not stop, the growth in U.S. emissions during the next 10 years.

In fact, the goal he set isn’t far from what the economy would be likely to achieve without any government intervention. Having cashiered Kyoto, an ambitious but flawed international protocol aimed at controlling climate change, Mr. Bush has replaced it with . . . not much at all.

It’s right to keep economic growth as a priority; prosperity, as Mr. Bush declared, “is what allows us to commit more and more resources to environmental protection.” But what’s needed here is balance; after all, severe climatic turbulence could do more to harm the economy than environmental regulation.

The president offered no convincing evidence to rebut the contention that economic growth could coincide with more ambitious goals to protect the environment.

What’s more, Mr. Bush offered no binding steps to make sure that even his modest goal is reached.

He would rely on a mix of exhortation and tax incentives to encourage companies to voluntarily reduce emissions.—The Washington Post

Secularism ‘door ast’

PAKISTAN is currently in the midst of a healthy and amusing debate on secularism. It is healthy because those who wear Islam on their sleeves are on the defensive. It is amusing because the two-nation theory on which Pakistan is premised does not fit into the accommodation that secularism demands.

It all began over the promise President Pervez Musharraf held out to the world in his January 12 speech: to make Pakistan a moderate and progressive Islamic state. In a subsequent interview to the