The remarks by the Chief Justice of Pakistan, Mr Justice Iftikhar Mohammad Chaudhry, to Saturday’s roll-signing ceremony have not received as much attention as they deserve, because they were merely reiterations of what he has said before. However, the very fact that he continues to make them indicates the need he feels for an emphasis of the reality that there had been a sea change in Pakistan.

He expressed a conservative judicial philosophy - that there was to be rule of law. In arguing that the country could not progress without rule of law, he was not so much expressing the opinion of jurists worldwide, so much as the experience of humankind, that generally it has only been with the rule of law that progress has been achieved, that states have achieved greatness.

It bears remembering that whereas states under arbitrary rule have established empires, there has been a strict obedience to the law in the build-up to empire. The USA seems to be in a transition stage, as after being a society based on the rule of law, it is, in the war on terror, engaging in illegality, with the result that many of its actions are illegal according to its own laws. This is reflected in the Chief Justice’s remarks, which seem to refer to the legal adage: “Let justice be done, though the heavens fall.” These words were spoken (in Latin, of course: “Justititia fiat, ruat coelem”) by a Roman commander, Ganeus Calpurnius Piso, after passing sentence on one of his officers for an offence carrying a mandatory death sentence as punishment.

The original crime was committed by a soldier, who failed to return from leave with his comrade. Just as he was about to be executed, the comrade returned. Piso ordered all three men executed; the original soldier because he had been duly sentenced, the returning soldier for having caused his death by not coming back on time, and the third for having stopped the execution. The incident occurred in the early days of Rome, when it was still a city-state, long before it became an empire; and thus long before it abandoned democracy for the autocratic emperors.

Roman law inspires lawyers because the profession has been taken from the UK that, in turn, abandoned the Muslim legal system by adopting the Roman, and because the Code of Justinian (which was strictly Byzantine rather than Roman), on which the English based their law, was available in Latin. However, though the Roman general, who provided this saying, was acting in a judicial capacity, he was a commander, and though the principle is universally applicable, it arose for a military offence and a military punishment. It is, perhaps, a particularly apposite example for a country, which has repeatedly undergone military rule, and by a Chief Justice who seemed to be ruling out any further military interventions, which he seemed to refer to as ‘unconstitutional deviations.’

This seems to put him against both the PPP and the PML-N. Both have a desire for decisions to go their way. Both have been founded by politicians, who were initially acolytes of martial law rulers, and both showed as rulers that they wished the state machinery to do their will, not the people’s. Their parties show the same spirit. The PPP and the PML-N do not want the judiciary and the rest of the state machinery, including the armed forces, to be neutral. They want them to support their holding of power. Chief Justice Chaudhry wants the law to be supreme over both parties. That implies that the Leninist role of a vanguard party, especially for itself by the PPP, is precluded.

Another thing to be considered is the next general election, due in at most six months. Elections will mean election disputes, many of which will only be settled on appeal to the Supreme Court. That is another aspect where the rule of law would make a difference. Particularly in the case of PPP, there is never any acceptance that it lost the election. Such an acceptance is necessary if the rule of law is to prevail. Exactly how crucial elections are, will only be understood if it is kept in mind that they are a means of transferring power, and are conducted by a legally constituted authority in Pakistan  - the Chief Election Commissioner. Because people, and parties, are unwilling to admit they have been beaten, in all probability because they ruled badly, they claim there was rigging against them. There is the complicating factor that allegations of rigging may not simply be a rejection of the law, but may be true. The recent verdict in Asghar Khan’s case showed that the military’s agencies doled out money to defeat the ousted PPP, and while the PPP has raised a huge hue and cry about that, it has been careful not to refer to the 1977 election, which it thoroughly rigged.

It should also be remembered that one reason for the acceptance of British rule in the subcontinent was that it provided justice. It must not be forgotten that the decline of Mughal rule had meant the rise of arbitrary and unjust rulers, for whom providing justice was not really as much of a priority as enjoying power.

This not only shows the need for the rule of law, but also its precariousness in this part of the world. This leads to a view of the laws, and of the law-giver. The laws must be both enforceable and obeyable. If they cannot be obeyed, they will not be enforced (or else enforced by people themselves guilty of the same offence), and vice versa.

Islam, followed by the vast majority of Pakistanis, provides for laws to be given by the Almighty. Indeed, the Almighty is ascribed sovereignty in the Pakistani constitution, and one of His 99 Names is Shari’, or the ‘Giver of Laws’. Sovereignty is a concept political scientists have taken from a lawyer, still using the definition propounded by the jurist Austin: “The determinate human superior whose command is law.” Muslims would agree with this, except for the “human” bit. However, the Austinian definition is supposed to cover collective bodies, such as Parliaments. The Austinian view is of a determinate human superior such as Maharaja Ranjit Singh, or Parliament, making laws. The Muslim view is that humans are not supposed to make the law, but uncover it, by studying the texts of the Quran and Sunnah. While the Austinian concept imagines humans as totally free in their activity, the Muslims view human activity as being within certain limits. However, both traditions view the law as to be obeyed, and thus for the rule of law to exist.

Actually, even governments are best served by the rule of law, unless rulers perceive as their purpose acting arbitrarily, or disobeying the law as it exists. For example, having power is not supposed to result from the use, or threat of the use, of force, which the military has used to take over, and why it has used various arguments to justify such coups, most notably corruption, national security, and the incompetence of politicians. Corruption is justified by the need to contest elections, which is an expensive business. The only path possible is, as the Chief Justice said, the rule of law!

The writer is a veteran journalist and founding member as well as executive editor of TheNation.  Email: maniazi@nation.com.pk