Rule of Law

The allegations against the judiciary are palpably and demonstrably false, writes Rehan Kayani

Rule of Law
On the eve of Eid this year, I received a video on an instant messaging application. The video started with citing examples of how a number of judicial officers in the West had been held accountable for acts constituting offences and how, in the land of the pure, the corrupt clique of judges, forming a members’ club, protected each other’s misconduct and corruption.

The video was sent by a civil servant. One would presume he would know better. One would be wrong.

Of course, the video was part of a wider propaganda to now assault the entire judiciary since the attack on one judge failed to bear the necessary fruit. Next morning, I saw emblazoned on the website of a popular news outlet that a concerted effort was being made to malign the judiciary raising concerns by the affected.

The easiest route, would be to remind the friend that the failed attempt on one member of the judiciary was due to the fact that he had no case to answer. He was, so to speak, acquitted by the judiciary, despite whatever went on the media, and that the ‘case’ was based on ‘mala fides’— bad faith. But the contrary view is held by a significant number of people, including clearly this friend, whose vision is unsullied by any knowledge of the matter.

The issue appears to be more insidious, more pervasive. Besmirch the name of the judiciary, the lawyers and, consequently, the law. Erode any public support of, and confidence in, the legal system. Encourage vigilantism. The concept of the rule of law, the development thereof and its understanding and grasp by the judiciary and public alike, which is yet to take a firm hold in this country, be further stultified.

I wanted to remind him that the concept of the rule of law, that terse yet trite and hackneyed expression, which has become elusive, stale and meaningless all at the same time thanks to ideological abuse and general over-use and has been reduced to little more than a self-congratulatory rhetorical device, actually means something.

This concept is more than a philosophical construct and has real, tangible meaning and consequences. Of the extant evidence available with us, its roots are ancient. Aristotle has stated, “It is better for the law to rule than one of the citizens.” Of course, the spread of the three large religions allowed many rulers to assume and arrogate to themselves a different role in dispensing justice and how justice would be perceived. Rulers of all kinds routinely asserted that they derived their authority from God and no earthly creation could adjudge them. Their courtiers, ministers, servants, agents also used some derivation of this formula to justify their actions and seek immunity. Rife superstition, ignorance and the constant drumming of the aforementioned assumption of a God-given authority, meant that the populace marked to God’s will whatever ill was visited upon them by those in power. This meant that seeking legal recourse was both difficult (in a non-existent sense) and discouraged.

In what may appear to be very Anglocentric examples, I will endeavour to, briefly, give examples of the milestones that shaped, and continue to shape, our understanding of what the rule of law means. And how important, indispensable, it is to our lives.
The erosion of the rule of law means at least two things: the law is different for different people and that some persons are beyond its reach


We have all heard of the celebrated magna carta. Two provisions of this Great Charter, signed in 1215, need a special mention, chapters 39 and 40.

Chapter 39 states: No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by lawful judgment of his equals or by the law of the land.

Chapter 40 states. To no one will we sell, to no one deny or delay right or justice.

It was a watershed moment. For a person living in the 13th century, the idea that he could not suddenly be made a missing person must have been positively mind-numbing. Most people, be them ignorant or servile minds, had no notion that they themselves were anything but chattels. But Magna Carta was not a sudden response. Then, executive and judicial powers both were concentrated in the Lord’s Anointed. He acted with impunity. We all know how that went. We also know how it works currently. However, the charter expressed a clear rejection of such unbridled, unaccountable royal power. It was an assertion that the supreme power itself was subject to certain overriding principles. It was a revolution.

But the greatest achievement of this document is that it opened the way to a manner of thinking, however primitive. There was law, there were procedures, there were rights. A person could not be simply thrown in a dungeon because of the covetous concerns for his property without lawful cause. Unheard of! It also had an inherent strength, the repression, the tyranny over ages had caused sufficient distress and strife in the larger populace, at least enough that mattered, for the King to accede to it, however reluctantly. It was one of the initial stages of the development of the idea that things have to be done a certain way. Or, perhaps this is more relatable, things cannot be done a certain way. The second crucial stage in the development of the rule of law, incrementally, was the issuance of the writ of habeas corpus. At the time, people were rounded up, at times only on facies and whims, and imprisoned without any charges, presumably out of caprice or to cull any resistance. The courts developed this writ, literally translated as ‘that you have the body’, requiring the executive to show cause, lawful reason, as to why a certain person was detained. Good cause you show and you keep custody. You do not and you have to release the person. It was that simple. The king was made to release people he had deigned liable to be sent behind the bars lest they resist him, or refuse to give up their properties to him without compensation. Imagine (but can you?) what that must have meant for the people then, especially the common man.

Third in the list of great moments in the development of the rule of law has been the abolition of torture. Slow and piecemeal in coming, after the abolition in 1628 of the infamous and cruel Star Chamber, a court with the power to torture suspects, torture warrants were never issued in England. Of course, such steps are not taken because it does not please a person or two but because there is sufficient public condemnation, or criticism, of a certain practice.

Next in line of such venerable principles is the acceptance of the Petition of Rights in 1628. The House of Commons denied Charles I the means to conduct an overseas war. The King, as they always do, found a simple expedient and forced 5 individuals to pay him a loan to wage this war. They refused and were imprisoned. Habeas Corpus petitions were of no use. The Crown stated, and the courts accepted, that the imprisonment was by His Majesty’s special commandments. These persons were released once the loan was extracted out of them. But the Commons, when they assembled in 1628, expressed their intolerance for such conduct (it does not take much to wonder why). They relied upon the principles of Magna Carta—the law, process and rights. Charles I on his existing prerogative, old customs and God’s will. The battle was really between the distrust of the King, his unfettered and sweeping powers with no consequences attached to wrongful acts, and the ability of the common law to protect the Commons. This petition, insisted upon by the Commons, reposing trust in the law, was reluctantly accepted by the Lords and even more so by the King who in 1628 eventually gave his assent to, amongst others, the following provision contained in the Petition:

“They do therefore humbly pray your most excellent majesty that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax or such like charge without common consent by act of parliament, and that none be called to make answer or take such oath or give attendance or be confined or otherwise molested or disquieted concerning the same or for refusal thereof. And that no freeman in any manner as is before mentioned be imprisoned or detained. And that your majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burdened in time to come. And that the aforesaid commission for proceeding by martial law may be revoked and annulled. And that hereafter no commission of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty’s subjects be destroyed or put to death contrary to the laws and franchises of the land.”

Now travelling across the pond but still relating to the highhandedness of the English Crown, in 1788 the Constitution of the United States was adopted. Containing many of the precepts of the development since Magna Carta, the United States Constitution stated that the law laid in that document was supreme, binding on the legislature, the executive and the judiciary. It elevated the law, and constitution, to an authority never enjoyed before.
If the powers that be had any evidence of corruption in the accumulation of wealth in the name of Begum Isa, I am certain they would have brought about charges

This was closely followed by the French Declaration of the Rights of Man and Citizen soon after the revolution in 1789. It contained the very many principles that we take for granted but to name a few: the law was the expression of the general will, the laws should only prohibit actions which are harmful, no one is to be accused or arrested except in accordance with law, that no one should be harassed on account of his beliefs and opinions, and perhaps best articulated that free communication of ideas was one of the most precious rights.

In 1791, the American Bill of Rights, in the form of the first 10 amendments to the Constitution, was effected. Such amendments accreted the wisdom acquired since Magna Carta, as narrated above, and added that none of the acts and omissions usually ascribed to the highhandedness of the state can be conducted without the due process of law. A sacrosanct expression, due process of law, ensures that both procedural and substantial safeguards provided by the law are acceded to, to afford maximum protection to the affected. You penalised him without affording him an opportunity to explain himself? Well, that’s wrong and unlawful. Its reversed. That is what it eventually boils down to. The final example, but by no means signifying exhaustion, is the rise and growth of the concept of judicial review. Laws are made by the legislature in democratic societies. But such laws are implemented by the executive and its various arms. In doing so, whether out of mala fides, ignorance or mistake wrong decisions can and are made. Here, the judges review the lawfulness of the exercise of such powers by public functionaries. They do not replace their views as to what is and what is not the acceptable or viable course of action followed by such functionaries. All they do is act as arbiters of the law: no more but no less either. Was the act done as per the remit of the powers delegated? No. The action is revoked and nullified. Where the answer is yes, no consequence follows.

Would we choose to discard any of the rights, protections enshrined in the examples above? I would not.

The essential principles that are considered to now form part of the concept of the rule of law are now embedded in Universal Declaration of Human Rights 1948. After a bloody war, a war against humanity itself, the world came together to claim that yes, certain principles, which it considered inherent, universal and inalienable, are “essential, if man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

The notions forming part of and underpinning the rule of law eventually lead to such commonplace principles as equality amongst sexes, minimum wages, child labour, forced labour, maternity leave, prohibition of torture and cruel treatment of prisoners of war et cetera. The very principles, the provenance of which we are not concerned with, which we take for granted as inhering in humans. But such ideas are a recent invention, brought about by constant struggle to protect ourselves from excesses be them of whatever kind. People for thousands of years lived without such protections. They make out society better. More humane.

Notice, all the safeguards and principles that now form part of the concept of rule of law are to guard against the excesses of tyranny and repression. They are not the enemies. They certainly do protect against them.


We are, tragically, at a very embryonic stage of the development of the rule of law no matter all disputations and claims to the contrary. But the least we can appreciate is that the rule of law ought to mean, and it does, that no man can be punished except for a distinct breach of law (properly made) before the ordinary courts. Independent, impartial and unbiased courts. Not some dreamed up charges adjudicated by persons of one’s choosing. And that every man, whatever his rank or position, is amenable to the jurisdiction of such laws and courts. In other words, no one should be above the law.

Inversely put, the erosion of the rule of law means at least two things: the law is different for different people and that some persons are beyond its reach and have impunity to conduct themselves howsoever they please.

Back to the issue

The concocted charges against Justice Isa were the same against which that first principle protected. There had to exist a legal duty to do or refrain from doing a certain thing and a violation of that principle warrants legal consequence.

Couple this malice with the feeble exhortation “but why does a judge need to hide behind technicalities? He should present himself for accountability.” The short answer to such inane slogans is simple: accountability has to be as per the law. For penal laws, the onus is on the party claiming a certain state of affairs to prove that that state of affairs existed, and the standard of proof required is that of “beyond reasonable doubt”. For civil claims, the standard is “on the balance of probabilities”, more of a 51-49% divide. Now the law: you do not need to declare the assets of those not dependent on you. Period. It was incumbent upon the government to prove that Begum Isa and the children were Justice Isa’s dependents, and therefore, were required to be included (along with the assets in their names) in his income tax returns. The government could not prove it. But more importantly for the Isa family, however, the burden nor the onus was on them to prove that they were not dependent and that the sources of the income were legitimate, they in fact managed just that. That is the turf on which Justice Isa fought. And soundly won.

As far as judicial decisions go, which are loathe to ascribe mala fides to the legislature or the executive despite evidence to the contrary, the judgment confirmed, implicitly, that the reference was the result of the usual insidious intrigues by the powers that be, through their proxies.

If the powers that be had any evidence of corruption in the accumulation of wealth in the name of Begum Isa, I am certain they would have brought about charges. But those charges need to be first proved independently on Begum Isa and that conclusion may have a bearing on his ability to hold a seat at the highest constitutional court in the land. Mere allegations shall not suffice. The absence of any charges (corruption in this case) is proof that intrigue alone was the motive to bring about the reference.

I keep repeating, rather boringly, that law is common sense, largely. Law is a tool, in the wrong hands, as well as a safeguard. The rule of law—all the beautiful developments and protections narrated above—ensures that it is not wielded as such a tool and remains as a stout defence.

What, then, is the purpose of damaging the image of the judiciary? The allegations against the judiciary are palpably and demonstrably false. They are made with the singular motive to defame and damage the image. Of the courts as well as the judges sitting in them. They are not stand-alone victims. Defame the judiciary and you defame the legal profession along with it and the entire idea of justice, the legal system and ultimately the rule of law. Remove that hurdle that is the law and the implementation of it, the safeguard it provides, and the kingdom has returned. The two greatest victims of the present age in the land of the pure are the exchange of ideas and opinions, and the rule of law. There is a method in the apparent madness.