RULE OF LAW: A GOVERNMENT OF
LAWS AND NOT OF MEN
By:
RIZVI, SYED AATIR HUSSAIN[1]
‘…the world may know that so far as we approve of monarchy, that [in
‘Rule
of Law’ is one of the much said but little understood concepts. What is
meant by rule of law and what is its significance? Does it mean that there is
no ‘rule of person’? How it can be
achieved? I will try to handle these questions in this article with special
focus on meaning of the term ‘rule of law’
and its values. It should be pointed out that when the term rule of law is used
these days, it means something different from the term ‘rule of law’ of the legalist philosophers of ancient times. Now by
this, we try to describe an important component of the social and political
orders of modern democratic countries. Under the term rule “by” law, law is an instrument of the
government where government is above the law[3].
On the other hand, according to the term rule “of” law, no one is above the law, including government. The concept
of the rule of law is of old origin. With Magna Carta[4],
King John placed himself and
The term rule of law is derived from the
French phrase la principe
de legalite i.e. principle of legality referring to a government based on
principles of law and not of men. Rule of law is the supreme manifestation of
human civilization and culture and is a new ‘lingua franca’ of global moral thought. It is an eternal value of
constitutionalism and an inherent attribute of democracy and good governance[8].
‘Let no one suppose that Dicey invented the rule of law. He did ofcourse put
his own interpretation upon the meaning of this rule. The rule itself,
Holdsworth[9]
has shown, may be traced back to the medieval notion that law, whether it be attributed to a supernatural or human source, ought to
rule the world’[10]. In
history[11],
man has always appealed to something higher than that which is his own
creation. In jurisprudence, Romans called it ‘jus naturale’, Mediavalists called it the ‘law of God’, Hobbes, Locke and Roussueau called it ‘social contract’ or ‘natural law’ and the modern man calls it
‘rule of law’[12].
As stated earlier, the rule of law is a viable and dynamic concept and, like
many other such concepts, is not capable of any exact definition. The term is
used in contradistinction to ‘rule of man’,
and ‘rule according to law’,
therefore rule of law means that the law rules, which is based on principles of
freedom, equality, non-discrimination, fraternity, accountability and
non-arbitrariness and is certain, regular and predictable, using the word ‘law’ in the sense of ‘jus’ and ‘lex’ both[13].
The rule of law is a concept which is capable
of different interpretations by different people and jurists[14],
and it is this feature which makes an understanding of the doctrine elusive. Of
all constitutional concepts, the rule of law is also the most subjective and
value laden[15]. The
underlying principle of ‘rule of law’
states that government authority is legitimately exercised only in accordance
with clear[16],
written, publicly disclosed laws, adopted and enforced in accordance with
established procedure. As a substantive legal principle, it is a doctrine that
every person is subject to the ordinary law within the jurisdiction[17]
and rule of law may, again, be used to refer to those formal characteristics
which rules of a legal system must possess before citizens can take them into
account in determining their future conduct[18].
The term can be used in two senses; formalistic[19]
sense and ideological[20]
sense, which sometimes make it an ambiguous expression because different
writers have taken different meanings for this term[21],
even some writers such as Friedrich Von Hayek[22]
(1944) and Robert Nozick[23]
have used this phrase to refer to a minimum material or substantive element in
legal system[24].
Further, for Liberalism, the rule of law ensures the minimum rules in the
society to enable man to fulfill his life plan according to law, but with the
minimum interference of law, while Marxism stands in opposition to Liberalism
and yet, paradoxically, seeks as its end result the complete liberty of man[25].
However, this principle is intended to be a safeguard against arbitrary governance.
It includes:
·
Separation
of powers and predominance of regular law
·
Legal
certainty
·
The
principle of legitimate expectation
·
Legal
equality of all[26]
Particularly associated with the name Dicey[27]
who made an influential statement of what he considered to be the rule of law
in his ‘Introduction to the Law of the
Constitution’, the concept of the principle identifiable as the rule of law
is of much greater antiquity than this. It is traceable back with ancient
However,
more than anybody else, perhaps, Aristotle was the first person who
differentiated between rule of men and rule of law[32].
‘He argued that government by laws was superior to government by men. In the
Constitution of Pakistan, 1973, the Article 4[33]
lays down the foundation of the rule of law which is akin to the fourth[34]
and fourteenth[35]
amendments of the US Constitution. It lays down that
every citizen has an inalienable right[36]
to enjoy the protection of law and to be treated in accordance with law[37]’.
Bracton writing in the 13th century maintained that rulers were
subject to law: ‘the King shall not be subject to men but, to God and the Law:
since law makes the king[38]’.
The same view is also expressed in the Year Book of the fourteenth and
fifteenth centuries. On that ground Fortescue, based his argument in favor of
necessity of parliamentary consent while imposing new taxation.[39]
Coke also advocated the supremacy of traditional common law over king and
executive[40]. Dicey[41]
identified following principles which together establish the rule of law:
(1) The absolute supremacy or predominance
of regular law as opposed to the influence of arbitrary power;
(2) The absence of discretionary powers and
prerogatives;
(3) No one can be punished except for a
distinct breach of law and due process of law;
(4) Equality before the law or the equal
subjection of all classes to the ordinary law of the land administered by the
ordinary courts; and
(5) The law of the constitution is a
consequence of the rights of the individuals as defined and enforced by the
courts.[42]
‘Dicey asserted that whenever there was
discretion, there was room for arbitrariness which led to insecurity of legal
freedom of the citizens. The rule of law has given to the countries, a
philosophy to curb the government’s power and keep it within bounds; it has
provided touchstone or standard to judge and test administrative law prevailing
in the country at a given time[43]’.
It must be kept in mind that ‘the Diceyan rule of law had both a descriptive
and a normative content. In descriptive
terms it was assumed that the regular law predominated, that exercise of
broad discretionary power was absent and that all people were subject to the
ordinary law of the realm…in normative
terms, it was assumed that this was indeed a better system than that which
existed in France[44],
where special rules and a distinct regime existed for public law matters’[45].
In American Law, this principle was drafted
by John Adams[46] as:
“In the government of this commonwealth, the
legislative department shall never exercise the executive and judicial powers
or either of them: the executive shall never exercise the legislative and
judicial powers, or either of them: the judicial shall never exercise the
legislative and executive powers, or either of them: to the end it may be a
government of laws and not of men[47]”.
CJ John Marshall (1801-35) set a
precedent in American politics by being able to balance the branches of the
federal government, and balance the states with the federal power, in a way
that engendered greater respect for — and consensus about — the Constitution,
and the rule of law[48]. The
concept of rule of law is generally associated with many concepts like:
·
No
arbitrary laws
·
All
are presumed to be innocent unless proved otherwise
·
No
double jeopardy
·
All
must have same rights irrespective of their social status, religion, color,
creed and sex.
·
An
arrested person must be told of the charges against him.
In my humble view, this rule in the context
of
First, rule
of law should be the regulator of government powers i.e. it provides checks
on the governmental powers and requires it to make rational policies. This
unfortunately is lacking.
Second, rule
of law should mean equality before law i.e. “[N]ot only that . . . no man
is above the law, but . . . every man, whatever be his rank or condition, is
subject to the ordinary law of the realm and amenable to the jurisdiction of
the ordinary tribunals. . . [49]”
Third, rule
of law should mean procedural and formal justice. It ‘connotes the method
of achieving justice by consistently applying rules and procedures that shape
the institutional order of a legal system.’[50]
It may consist of several principles such as, the legal system must have a
complete set of fair rules, these rules must be pre-fixed and pre-announced,
these rules must be applied transparently and consistently. Further, all
citizens…to obey the law, unless and until it can be changed by due process[51]
and every public servant is a trustee of the society and is accountable for due
effectuation of constitutional goals[52].
This sort of justice can only be achieved when these aims are fulfilled.
The opposite of rule of law is ‘rule of person’. There may be two types
of rule of person. The first may be ‘rule
of few persons’ such as tyranny and oligarchy. The second is ‘rule of one person’ as a dictator or a
martial law administrator.
After giving a glimpse of the idealistic
picture of the concept of rule of law as it should be, it would be better to
throw some light upon the implementation of this concept in our home land,
Pakistan, as we all are aware of the fact that the rule of law can not be
viewed in isolation from political society[53]
and here, in Pakistan, laws are implemented in different ways for different
class of people. We have stooped so low that even the supreme head[54]
of our judiciary is not safe from the arbitrary and unjustified powers of our
government, what to talk of the safety of an ordinary man. Whereas, the basic
principle of rule of law is that administrative actions should be just and fair[55].
The constitutionality of one’s safety and protection lies in one’s
resourcefulness. Common man is in a pitiable condition in our society. Ideally
there must be a complete separation of powers amongst the three pillars of
government[56]. We
witnessed during the recent past that when some police officials attacked the
office of some leading TV channel in the country, the President as well as the
Prime Minister along with other high ups not only made public apologies but
also declared to compensate it for the damage suffered alongwith assurance to
take appropriate actions as well. But when the same officials break into the
premises of innocent people somewhere and harass them, no body ever bothers.
This depicts dual standards on the part of the rulers and the highups, as it is
well settled principle that any exception to law and procedure is only
permissible if the law itself provides for such eventuality[57],
further government fails in its duty, if it confines its powers to its near and
dear ones or to those who voted for it[58].
Our Constitution is otherwise so to say, replete with provisions like, equality
before law[59],
safeguards as to arrest and detention[60],
protection against retrospective punishment[61],
freedom of movement,[62]assembly
[63]
and association[64], but to
no practical effect. The need of the time is to implement these provisions of
law in letter and spirit.
Again, our Constitution categorically
declares that no person shall be deprived of property[65]
and life except in accordance with law[66]
but they carry no meaning at all. Practically there is no fairness and
equality, the agencies are free to abduct any person on mere apprehensions and
no body can dare ask where the person is. If it continues to be the same, we
can not say what the term ‘rule of law’
will connote in the jurisprudence of our country. The time clamors for the
implementation of this mundane rule in its true spirit, so that every common
man of Pakistan may feel free and safe to lodge any complaint against the big
shots, which is achievable only if on the one hand, undue interference of
executive in the affairs of other institutions is checked, and on the other,
the poor and ordinary are educated to the extent that they become knowledgeable
of their rights and duties. We have laws of all types and at all levels, which
ensure rule of law and equality of all, but political and judicial[67]
will to implement them is lacking.
Now the question arises how can we constrain
the arbitrary powers of government? The answer lies in several important
principles of rule of law as stated
above. Following can be suggested for achieving the true spirit of rule of law;
·
There
must be supremacy of law as opposed to the supremacy of the government[68].
·
The
government has to follow pre-fixed and pre-announced legal procedures.
·
Judges
must have courage to declare any governmental action unconstitutional and null
and void.
·
General public must be aware of their rights and [must] be willing
to ask for their enforcement.
The rule of law, actually,
implies a notion of equality before the law, which is in corroboration with the
equality of law as enunciated by Islam fourteen hundred years ago. It simply
means, at least, that each and everyone of the society must be provided access
to law, so that vindication of one’s rights and protection of one’s interests
is assured. The rule of law, in this way, guarantees freedom and liberty within
the legal compass. This is the main aim for which the man entered into social
contract with the ruler, and again this is the main purpose enshrined into the
purpose of legislation. ‘The rule of law helps establish an orderly society
perceived to be fair because it applies universally and prospectively. It
operates for the benefit of individuals separately and collectively[69]’.
Rule of law is essential component of good governance[70]
and derivation from it is always, fraught with the consequences, which are
detrimental to larger interests of individual, public at large and the state[71]as
stated by Lord Denning, “…a country can not tolerate a legal system which does
not give a fair trial[72]”.
Those in power; therefore must
pay attention to the needs and the grievances of the people. Law making is one
thing and its implementation quite another. Substantive law and procedural law
go hand in hand. If state slaughters procedural justice for the sake of
substantive justice, the danger of arbitrary government power and the threat to
individual liberty becomes evident. Eventually, such system leads to substantive
injustice as well. On the other hand, in a country which emphasizes procedural
justice, arbitrary government power will be curtailed, freedom will be
protected, which will result in the preservation of substantive justice. At
this point I would like to quote Montesquieu
who once wrote, ‘law should be like
death, which spares no one’. I believe, implementation of laws must be
strictly observed not only by the law makers, law enforcers and those who
interpret them and are custodians of law but also by each and every citizen in
his routine and daily life because this is the only way which leads to ultimate
harmony, peace and tranquility in the society. Abraham Lincoln once said and I quote;
“Let reverence for the laws be breathed by every [American] mother to the lisping babe
that prattles on her lap. Let it be taught in schools, in seminaries, and in
colleges. Let it be written in primers, in spelling books, and in almanacs. Let
it be preached from pulpit, proclaimed in legislative halls, and enforced in
the courts of justice. And, in short, let it become the political religion of
the nation.”
[1]. MA,
LLM (Cantab), Principal, Superior
College of Law and Fellow at Azra Naheed Centre for Research & Development,
Superior University, Lahore.
[2]. Thomas
Paine, Common Sense (1776).
[3]. Auston’s
Imperative Theory, where government can be presumed to be sovereign as quoted,
‘Law is the command of sovereign
[4]. Magna
Carta (1215) had 61 clauses and clause number 39 stated, “no freeman shall be
captured or imprisoned…except by lawful judgment of his peers or by the law of
the land”. It was the first bill of rights which tried to put some kind of
controls over the total powers of monarchs; continuing a worldwide trend away
from the arbitrary rule of man to the more predictable rule of law. See, www.duhaime.org/LawMesuem/LawArticle-109/1215-The
-Magna-Carta.aspx last visited on
[5]. See
www.archives.gov/exhibits/featured_documents/magna_carta/
last visited on
[6]. See
Case of Proclamation (1610) 77 ER 1352, where he quoted Bracton stating, “The King himself ought not to be subject to
man, but subject to God and the law, because the law makes him king”. Also
see Henry de Bracton, On the Laws and Customs of England (c 1250).
[7]. IP
Massey, Administrative Law, Manzoor Law Book House, 2010 p-25.
[8]. Ibid.
[9]. Holdsworth,
History of English Law, Vol. X (1938) pp-647-650.
[10]. ECS Wade, An Introduction to the Study of the Law of the
Constitution, 10th ed. p-xcvii.
[11]. Historically,
the phrase was, perhaps, first used with reference to a belief in the existence
of law possessing higher authority-whether divine or natural-than that of law
promulgated by human rulers which imposed limits on their powers (see O Hood
Phillips & Jackson, Constitutional and Administrative Law, 8th ed., Sweet
& Maxwell 2001 p-30).
[12]. IP
Massey, Administrative Law, 6th ed. Eastern Book Company, p-22.
[13]. O
Hood Phillips, p-28.
[14]. For
detailed discussion on rule of law as a philosophical doctrine, political
theory and rule of law in international dimensions, see Hilaire Barnett,
Constitutional and Administrative Law, 6th ed., Routledge-Cavendish 2006, Part
II, Chapter IV, ‘The Rule of Law’ pp-67-92. However, the term according to John
Rawls, is ‘obviously closely related to liberty’ (see John Rawls, A Theory of
Justice, Oxford, 1973 p-235) where he calls for the regular and impartial
administration of public rules’ which is the essence of a just legal system
characterized by the legitimate expectations of the people (see Barnett, p-78).
Professor Lon Fuller focuses on ‘morality of law’ and creates a relationship
with rule of law in this context while Raz rejects the linkage between rule of
law and morality (see Barnett, pp-75-77) and approached the rule of law from a
morally neutral but conceptual standpoint.
[15]. Hilaire
Barnett, Constitutional and Administrative Law, 6th ed. Routledge-Cavendish
2006 p-67.
[16]. As,
Lord Diplock stated, ‘absence of clarity is destructive of the rule of law,’
see, Merkur Island Shipping Corpn Versus Laughton [1983] 2 A.C. 570
[17]. Bryan
A Garner, Black’s Law Dictionary, 8th ed., Thomas/West.
[18]. J.
Raz, The Rule of Law and its Virtue, (1997) 93 LQR 195.
[19]. Here
it refers to organized power as against the rule of one.
[20]. Here
it refers to regulation of the relationship of the citizens and government.
[21]. The Rule of Law, Ideal or Ideology, (ed. Hutchinson and Monahan)
1987.
[22]. In
his book, The Road to Sterfdom, he viewed the correct role of government as
being best confined to establishing clear, fixed rules of law…the existence of
a stable set of minimum rules which are to be applied in a uniform,
non-discretionary manner (see Barnett, p-69 for details).
[23]. Barnett,
“…a clear and forceful advocate of minimal state…” p-78.
[24]. The
most important example of this approach is to be found in the Declaration of
Delhi, 1959 according to which the rule of law implies, inter alia:- a right to
representative and responsible government; certain minimum standards or
principles for the law, including those contained in Universal Declaration and
the European Convention, in particular, freedom of religious belief, assembly
and association, and the absence of retroactive penal laws; that a citizen who
is wronged should have a remedy against the state or government; the certainty
of criminal law, the presumption of innocence, reasonable rules relating to arrest,
accusation and detention pending trial, the giving of notice and provision for
legal advise, public trial, right of appeal and absence of cruel and unusual
punishments; the independence of the judiciary (see O Hood Phillips, p-32).
Barnett, pp-74-75
[25]. Barnett,
pp-74-75
[26]. AV
Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed.
p-193, “With us every official, from the Prime Minister down to a constable or
a collector of taxes, is under the same responsibility for every act done
without legal justification as any other citizen. The reports abound with cases
in which officials have been brought before the courts, and made, in their
personal capacity, liable to punishment or to the payment of damages, for acts
done in their official character, but in excess of their lawful authority”.
[27]. He
published his book, ‘The Law of the
Constitution’ (1885) which was based on his lectures at Oxford, in which he
explained three of the major guiding principles of British Constitution
including; (1) sovereignty of British Parliament (2) conventions of the
Constitution and (3) the rule of law. He included three distinct conceptions
while elaborating the concept of ‘rule of law’ i.e. (a) absence of arbitrary
power i.e. no man is above the law, (b) equality before the law and (c) the
general principles of the British Constitution esp different liberties are
result of judge-made law. This doctrine has been chiefly criticized with regard
to the notion of equality before the law and the topic of administrative
law [for details see O. Hood Philips,
Constitutional and Administrative Law, 8th ed. p-34] Further Sir Ivor Jennings
criticized him most effectively, on the basis that it is too narrow an
interpretation…it is a small point upon which to base a doctrine called by the
magnificent name of ‘rule of law’, particularly when it is generally used in a
very different sense [see H. Barnett, Constitutional and Administrative Law,
6th ed. p-85 for details and TRS Allan’s scrutiny of the concept]. For reply to
the criticism, see, Dicey, pp-183-205, where he explains the reasons why people
misunderstand Law of the Constitution. One can further see preface to the 10th
ed. , where ECS Wade while discussing Professor FH Lawson’s essay ‘Dicey Revisited’ states, “The author
pleads that Dicey should be read with reference to the conditions existing when
he wrote. He is convinced that to place the rule of law in its historical
setting will lead to a better understanding. Although Dicey has often been
criticized for his failure to understand droit
administratif, Professor Lawson argues convincingly that Dicey had a
greater awareness of the subject as it developed between 1885 and 1908 than is
commonly credited to him…” Even ‘in the last edition to which he penned an introduction,
Dicey made little change with regard to the principle of the rule of law,
although he had in an earlier edition somewhat modified his attitude to the
nature of droit administrative…’(see
ECS Wade, An Introduction to the Study of the Law of the Constitution, 10th ed.
p-cxliv).
[28]. Even
in submitting to death, Socrates was doing nothing other than giving
recognition to the supremacy and rule of law, which can be clearly understood
while reading his dialogues with Crito, who asked him to escape, which he
refused.
[29]. In
1957, the
[30]. David
Pollard, Neil Parpworth and David Hughes, Constitutional and Administrative
Law, 14th ed, Oxford University Press, p-42
[31]. Where
it can be said to be a characteristic of British Constitution which precludes
arbitrary action on the part of the Crown or members of the Government [see O.
Hood Phillips, p-31], see also, AV Dicey p-187, Ch. IV, Bearing of the de
Tocqueville’s remarks on meaning of rule of law, Dicey writes, “His words point
in the clearest manner to the rule, predominance, or supremacy of law as the
distinguishing characteristic of English institutions”.
[32]. He
stated, “The rule of law is preferable to that of any individual.” See, The
Politics, Vol. III p-16
[33]. Right of Individuals to be dealt with in
accordance with law etc (1)
To enjoy the protection of law and to be treated with in accordance with law is
the inalienable right of every citizen, wherever he may be, and of every other
person for the time being within Pakistan (2) In particular; (a) no action
detrimental to life, liberty, body, reputation or property of any person shall
be taken except in accordance with law; (b) no person shall be prevented from
or be hindered in doing that which is not prohibited by law; and (c) no person
shall be compelled to do that which the law does not require him to do. Also
see Article 8, through which fundamental rights are protected by limiting the
powers of state organs
[34]. The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrant shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to
be searched, and the persons or things to be seized. Also see fifth Amendment,
which states: …nor be deprived of life, liberty, or property, without dues
process of law; nor shall private property be taken for public use without just
compensation
[35]. Section 1 states: …no state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
[36]. Hobbes
and Locke showed concern with man’s rights which they said, were derivable from
human nature, and since being natural they were fundamental (Salmond,
Jurisprudence, 12th ed. p-17)
[37]. Dr.
SS Hussain, The Rule of Law, Superior Law Review 2010 Vol: 1 p-93
[38]. Ibid
p-94
[39]. O.
Hood Phillips, p-30
[40]. Ibid
[41]. He
stated, “The absolute supremacy or predominance of regular law as opposed to
the influence of arbitrary power and excludes the existence of arbitrariness,
of prerogative or even wide discretionary authority on the part of the
government”. See, The Law of the Constitution, 8th ed. p-198
[42]. AV
Dicey, Law of the Constitution
[43]. For
details see, Hamid Khan, Principles of Administrative Law: A Comparative Study,
PLD Publishers, pp-16-21
[44]. AV
Dicey, Law of the Constitution, Ch XII, The
Rule of Law Compared with Droit Administratif, where he writes, “Droit
Administratif rests on ideas foreign to the fundamental assumptions of our
English Common Law, and especially to what we have termed the rule of law…the
absence from our language of any satisfactory equivalent for the expression
droit administratif is significant. The want of a name arises at bottom from
our non-recognition of the thing itself.”
[45]. PP
Craig, Administrative Law, 5th ed. Thomas/Sweet & Maxwell 2007 p-4-5
[46]. He
drafted for the Constitution of the
[47].
[48]. See, http://www.answers.com/topic/john-marshall#ixzz1BZINWGhE,
last visited on
[49]. Dicey,
An Introduction to the Study of the Law of the
Constitution.
[50]. Shen,
2000 p- 31
[51]. Francome
Versus Mirror Group Newspapers Ltd [1984] 1 WLR 892
[52]. Superintending
Engineer Versus Kuldeep Singh, (1997) 9 SCC 199
[53]. Hilaire
Barnett, p-67
[54]. Here
I mean the judicial crisis in the near past, where CJ Iftikhar Muhammad
[55]. 1992
PSC 117
[56]. i.e.
Legislature, Executive and Judiciary
[57]. 1996
PCrLJ 1322
[58]. 1992
MLD 777
[59]. Preamble
of Pakistan Constitution 1973, also see Art 25 i.e. Equality of Citizens, which states, “(1) All citizens are equal
before law and are entitled to equal protection of law; (2) There shall be no
discrimination on the basis of sex; and (3) Nothing in this Article shall
prevent the state from making and special provision for the protection of women
and children
[60]. Art
10 Safeguards as to Arrest and Detention,
which provides details about the right of being communicated the grounds of
arrest, the right to consult and be defended by a legal practitioner, the right
to be produced before a Magistrate within twenty four hours, matters and
safeguards regarding preventive detention and also, Article 10 A Right to Fair Trial states, ‘For the
determination of his civil rights and obligations or in any criminal charge
against him a person shall be entitled to a fair trial and due process’
[61]. Art
12 Protection Against Retrospective
Punishment, which states, (1) No law shall authorize the punishment of a
person; (a) for an act or omission that was not punishable by law at the time
of the act or omission; or (b) for an offence by a penalty greater than, or of
a kind different from, the penalty prescribed by law for that offence at the
time the offence was committed; (2) Nothing in clause 1 or in Article 270 shall
apply to any law making acts of abrogation or subversion of a constitution in
force in Pakistan at any time since the 23rd day of March, 1956, an offence
[62]. Art
15 Freedom of Movement etc, which states,
“Every citizen shall have the right to remain in, and, (subject to any
reasonable restrictions imposed by law in the public interest), enter and move
freely throughout
[63]. Art
16 Freedom of Assembly, which
states, “Every citizen shall have the right to assemble peacefully and without
arms, subject to any reasonable restrictions imposed by law in the interest of
public order
[64]. Art
17 Freedom of Association, which
states, (1) Every citizen shall have the right to form associations or unions,
subject to any reasonable restrictions, imposed by law in the interest of
sovereignty or integrity of Pakistan, public order or morality; (2) Every
citizen, not being in the service of Pakistan, shall have the right to form or
be a member of a political party, subject to any reasonable restrictions
imposed by law in the interest of the sovereignty or integrity of Pakistan and
such law shall provide that where the Federal Government declares that any
political party has been formed or is operation in a manner prejudicial to the
sovereignty or integrity of Pakistan, the Federal Government shall, within
fifteen days of such declaration, refer the matter to the Supreme Court whose
decision on such reference shall be final; and (3) Every political party shall
account for the source of its funds in accordance with law
[65]. Zahoor
Ahmad Versus Federation of
[66]. Art
9 Security of Person, which states,
“No person shall be deprived of life or liberty, save in accordance with law.”
[67]. Although
the courts have no power to hold legislation unconstitutional, they interpret
it on the assumption that Parliament did not intend to breach fundamental
principles of Common Law [see O Hood Phillips] where quoting a note from Fitzpatrick versus Stirling Housing
Association (1998) Ch. 304, 337 per Ward L.J states, “I must…be faithful to
Parliament’s sovereign will. Nevertheless, I am entitled to presume that
Parliament always intends to conform to the rule of law as a constitutional
principle and accordingly to respect the constitutional right of the individual
to enjoy equality under the law”.
[68]. Aristotle
states, “Where laws do not rule, there is no constitution.” See, The Politics, Bk IV, para 1292 a 31.
[69]. Personal
Reflections of Richard G Cline, Echoes of Freedom, 2007 available at www.clinecenter.illinois.edu/about/echoes-of-freedom.pdf,
last visited on
[70]. 2001
PLD SC 667
[71]. 2002
PCr.LJ 1765
[72]. Denning,
The Road to Justice (London, Stevens, 1955) taken from Kim Economides, the Road
to Justice Revisited: Current Trends in Professional Legal Ethics available at https://eric.exeter.ac.uk/repository/bitstream/handle/10036/66315/Kim%20Economides.pdf?sequence=1
last visited on