Poor rule of law harms democracy and development in Pakistan
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When the 18th-century American statesman and jurist, John Adams stated the quest for “a government of laws and not of men”, he was affirming the idea that the affairs of people in a democracy should not be conducted arbitrarily at the whims of the powerful or those that have executive authority, but rather by laws that are enacted by a democratic legislature and applied uniformly for all citizens. The Rule of Law is a fundamental underpinning of democratic societies, and failing to meet this necessary condition has harmful consequences not only for democracy but also for a country’s economic development. Unfortunately, on several measures, Pakistan fails to deliver on this essential compact of the state with its citizens.
The World Bank’s Worldwide Governance Indicators (WGI), comprising legal, political, and economic institutions, shows that Pakistan’s institutional quality not only ranks near the bottom among 200 countries and territories but has also steadily deteriorated over the last few decades. One of the contributory factors is that it performs poorly concerning regulatory quality and rule of law, ranking in the bottom third of the 200 countries. Similarly, the World Justice Project (WJP), an international civil society organization, released a Rule of Law Index in 2021 that specifically evaluates the Rule of Law in 139 countries or jurisdictions and ranked Pakistan’s rule of law score at 130th place. Pakistan’s score places it at 5 out of 6 countries in the South Asia region and 30 out of 35 among lower-middle-income countries.
With the globalization of economies, the Pakistani industry needs to be part of the global value chain, which demands transparency and predictability of judicial institutions and effective enforcement of private contracts. If Pakistan is to compete with other countries for Foreign Direct Investment (FDI) it must demonstrate observance of the Rule of Law where there is a commitment to ensure contracts are as enforceable. Even before international companies choose to invest in or trade with the country, they assess how the justice system treats its people.
Where the laws are in place on the statute books they often do not translate into ensuring due process and establishing remedies for violation of rights.
Javed Hassan
For instance, the European Union (EU) has recently made clear to Pakistan that the renewal of preferential trade treatment under the Generalized System of Preference Plus (GSP- Plus) facility, which affects almost $6bn worth of exports, will be dependent on compliance with international human rights conventions and laws. These seek to eliminate disempowerment, exclusion, and discrimination based on gender, creed, and any other unfair discriminatory practices. Effectively, the EU is nudging Pakistan to ensure there is the Rule of Law, something that should be the case without external pressure.
Where the laws are in place on the statute books they often do not translate into ensuring due process and establishing remedies for violation of rights. Women, poor workers, and minorities face unfair treatment in society and at workplaces, and sometimes face violence too, mainly because of the lack of prompt application laws already enacted. To address such shortcomings, laws need to be clear, widely known and applied equally and promptly to all. From farmhands, factory workers, and small businesses to minority groups and consumers, all should feel confident that they have equal access to and treatment under the law. General public access to the law and trust in the legal and regulatory systems should provide an environment where there is trust in the justice system.
One of the areas where the state has singularly failed is to safeguard the security of tenure for land and property of individuals, especially where poorer sections of society are faced with influential real estate businesses. Laws to ensure certainty about the tenure of existing occupants, or what can be done with land or property, including types of appropriate usage for local conditions and needs, have often been ignored or circumvented by those with influence. In one instance a major land developer in Pakistan stands accused of illegally appropriating indigenous peoples’ ancestral land in the vicinity of Karachi. This has caused a sense of aggrievement in one of the most deprived communities in Sindh, which has led to violence and fatalities. The same holds for the exploitation of natural resources that causes environmental damage, loss of property, and/or livelihoods. Laws not being effectively enforced in resource-rich areas have been a cause of considerable grievance.
For the Rule of Law to prevail, the eminent jurist, Kenneth Dam, has argued in his book, The Law-Growth Nexus, that effective enforcement of laws may be as important as the functional content of the law. There has to be a credible expectation that the law will work and this largely depends on the effectiveness of the judiciary. Confidence in the entire system, and consequently, investments and economic development as well as human rights, are dealt a severe blow when the judiciary is perceived to be unable to promptly and impartially protect life and liberty, secure property, and/or enforce contracts.
- Javed Hassan is an investment banker who has worked in London, Hong Kong, and Karachi. He tweets as @javedhassan.
