The third edition of the Afkar-e-Taza ThinkFest concluded its two-day event in Lahore to a captivated yet small and modest audience. With more than forty panels and over a hundred speakers from all over the world — including writers, academics, poets, artists and performers — the literary and academic festival showcased thought-provoking conversations carried through by engaging panels.
What remained front and centre in the discussions this year was a special focus on finding Pakistan's internal bearings in the current political climate. In the session Jiss ki Lathi uss ki Bhains? The Rule of Law in Pakistan, moderated by legal advisor Reema Omer and featuring lawyers Babar Sattar, Amber Darr and Salman Akram, the panel delved into the concept of 'rule of law', how it pans out in domestic politics and its crucial relationship with democracy, authority and sovereignty.
"Everyone seems to agree that the 'rule of law' is a good thing, whether it is our prime minister, who wants to especially focus on improving the rule of law in 2020, or when our chief justices give the opening addresses they say that they uphold the rule of law. Even the army chief talks about the rule of law," said Omar, continuing, "But our government rules through ordinances and we've seen that the Supreme Court brings within its jurisdiction the mandate of other institutions. Even the army as an institution has a lot of power."
"If everyone agrees that the rule of law is a good thing, then why is it when Pakistanis are asked if there is a rule of law in the country, most people will say no, with global rankings reflecting the same. Pakistan is included in the worst ten countries in the world when it comes upholding the rule of law."
Can the 'rule of law' exist without democracy?
Omar opened the discussion by framing some crucial questions: Is the 'rule of law' an empty concept? How can it be implemented? How can we highlight the substantive aspect of the rule of law in the country, as opposed to its procedural aspect? But more importantly, can the rule of law be implemented if institutions are not democratic?
"In order to understand the rule of law and its connection to democracy, we'll have to go back in history," said academic and lawyer, Amber Darr. "First, the rule of law is a western concept and has evolved in the West, and was first formalised in 1215 when the Magna Carta was signed. Interestingly, the Magna Carta was not a result of political thought or a struggle but a confrontation between the Lords and the King of England, to essentially limit the arbitrary power of the sovereign."
"The concept then evolved over centuries, and power was finally transferred from the monarch to the parliament. That was a huge change. The king would claim his authority by provoking God, but the parliament had no such authority. It had two things to derive a sense of legitimacy: first, it is representative and second, that it works in our interest.
"And that's where the rule of law concept comes in, every man is judged in accordance with the law and that no one is above the law. The independent judiciary is the gatekeeper of this balance," said Darr.
"But when it comes to its link with democracy, many argue that this balance can be achieved without democracy as well. But while that balance can be achieved in such a situation, 'representation' cannot be achieved. Which means that if we are involved and participate in the making of laws, they are better implemented and we see a positive translation of that in society. I personally think that laws are not implemented in Pakistan because they are not created democratically."
The gap between 'authority' and 'responsibility'
Turning to Sattar, Omar asked: "Do you think the will of the people is truly reflected in the parliament? Especially in light of the recent amendments in the parliament to the Army Act where the chief of army staff's extension is being discussed."
"There are many critiques when it comes to the rule of law and how it is implemented in our country. There are many micro-challenges, but the macro challenge is that there is a de facto system rather than a de jure system [state of affairs that is in accordance with law]," answered Sattar.
"How actual power relations work in our country has nothing to do with what the law sanctions; and we see a constant conflict within our laws and our institutions. The Army Act, that you mentioned, is one of those things."
"A lot of people are saying that our Constitution says that the military will be under civilian control, that if the prime minister can appoint someone they can also give an extension. But if there was entrenched democracy with civilian control, then that shouldn't be a problem. But where there isn't an even playing field and no civilian control of the military, then the bargaining power is unequal.
"There is a dichotomy between authority and responsibility. Our problem basically lies in this confusion that we don't know who has to do what."
Role of lawyers in upholding the 'rule of law'
Steering the discussion forward, Omar then turned to the "torchbearers of law" who instead of upholding the rule of law take it in their own hands. Turning to Akram, she enquired about the challenges and the potential of the legal community in upholding the rule of law.
"As lawyers, we should think hard about what our role is in society. In my opinion, a lawyer's role, in addition to representing clients, is to reflect the conscience of their society," Akram said.
"Leaving aside those who are involved in stone-pelting and vandalism, I agree that there exists a de facto system, but in reality, lawyers are the protectors of power; and in that role, we can either constantly argue with society about what the rule of law is or we can come into our true role of being bearers of justice.
"In the case of those lawyers who take power into their own hands, public figures like me have a conscious role and responsibility of whether we go on public forums and keep on throwing stones at things and provoke tensions — or do we play our important role in guarding power, authority and the rule of law."