Outline:
- Introduction
- Legislature like a rubber stamp
- Courts not the creatures of law but the creators of law
- The constitution of England
- In the third world countries, rights of people are flowing out of the so-called constitution
- The Islamic concept of legislation and constitution
- Allah, the sole authority
- The example of the Islamic system of the rule of law in the lifetime of Muhammad (PBUH) and his four caliphs
- Conclusion
Rule of law is an attribute of democracy and good governance. Rule of law means law should govern the subjects of the state i.e. Government should be based on the principles of law and it is against the arbitrary power of the government executive. State is enjoined to provide adequate means of livelihood to the poor, weaker sections of the society. Justice is an attribute of human conduct and rule of law is the indispensable foundation to establish socio-economic justice.
One word too often profaned said Shelly is the word “Love”. That may be true about the field of Romance but in the field of Statecraft, the word most profaned, misused and rather abused in the expression is “Rule of Law”. In the Third World Countries, at least, it has been given a meaning, which the poor Dicey could not imagine in his wildest dreams. Here it means rule by decree, it means the system where the Legislature is only a rubber stamp for ratifying the commands of a determinate human superior” who pronounces them through the agency of a titular head who is also a rubber stamp. Thus with the help of these two rubber stamps, the will of human superior is transformed ostensibly into the will of the people. It is a system, which we may name as “constitutional despotism” or “statutory dictatorship”.[the_ad id=”17141″]
One man who frames a constitution, which suits him through a so-called Legislature, which is his hand-made, in fact rules the Sate. Through the facade of the Legislature, the determinate human superior makes the so-called Laws, amends and repeals them at his pleasure and when deemed expedient he amends and even mutilates and recasts the constitution also with as much ease. If the Courts, in his opinion “hinder the revolution” set into motion by this savior of the nation, he readily cuts them to size by curtailing their powers of “interfering” with the policy of the Government. And all this is called “constitutional” because it is done through the agency of the Legislature, which comprises mostly of the henchmen of the determinate human superior.
Dicey said that the Rule of Law means that everybody is subject to the Law, says this human superior, why the Courts should not be subject to the Law. They are the creatures of Law”. You can imagine the position of these creatures of Law vis-à-vis the human superior who is the creature and the maker of the Law. In the under-developed countries of Asia, Africa and Latin America, the Courts are slowly convinced and subject to this position of being “the creature of Law”. But at least the history of Law gives testimony to the fact that the Courts are not the creatures of Law, on the contrary, they are the creators of Law. Take the instance of the Anglo-Saxon system of Law and Jurisprudence which was developed almost entirely by the English Judges and is purely a system of Judge-made Law so-much-so that even the constitution in England is the result and consequence of this judge-made Law and it is not the other way round. The Magna Carta, the bill of rights and other basic principles of the English Constitution were evolved by the Judgments of the Courts and not vice versa. Similarly, the most outstanding and the most effective safeguard of the Rule of Law called the doctrine of judicial review of which the American people feel so proud and rightly so were laid down by a Judge, John Marshal. These great Judges, Jurists and legal pontiffs created the Law and laid down the foundations of the constitutions of the whole civilized world.[the_ad id=”17142”]
Certainly these judges were the creators of Law and Custodians of the rights and liberties of the people which they enshrined in their judgments and which they protected from the onslaught of the determinate human superiors who fired the guns of Ordinance, Regulations and erstwhile Statutes through the agency of Legislature raised by them to give their rule the semblance of legality. Yet in the Third World Countries, the rights and liberties of the People are not inalienable but flow out of the so-called constitutions. The irony is that these constitutions, these fountainheads of the rights of the people, these creators of the judiciary also dry up very often and after a few years the new determinate human superior strikes at another fountainhead of the peoples’ rights and liberties and makes another constitution.
In the Third World the rights and liberties of the people are not permanently written with the sunbeams on the parchment of the earth and are not inalienable but the constitution maker – grants them very kindly. The interesting thing is that these rights and liberties are granted but not guaranteed in any real sense. The result is that the guarantor of the rights and liberties of the people takes them away by suspending them whenever he chooses or whenever he sees ‘enemies of the people’ trying to subvert his Government. After all the enemies of this human superiors are the enemies of the people because he personifies and identifies himself with the people.
The discussion leads us to the conclusion that the word “Law” used in the term “Rule of Law” does not mean the Ordinance, or even the statutory law and the Rule of Law does not mean Rule through the Ordinance or the statues which are the expression of the will of an erstwhile legislative authority but the word law means in this expression, the expression of the collective will and wisdom of the people evolved over centuries.
In the case of the Islamic State of Pakistan Law does not mean merely the expression of the will and wisdom of its people it means essentially the will of Allah as embodied in the Holy Qur’an and which found full expression in the life of Prophet Muhammad (PBUH). All manmade legislation, constitutional or of other nature, has to conform to that fundamental source of Law. The English system of law is of no help to the teeming millions of Asia, Africa and Latin America because according to it sovereignty lies with the Parliament which can do anything including the extension of its own life and even mutilating the fundamental documents of the Constitution and in spite of all this the Government can still claim to be a Constitutional Government.
[the_ad id=”17150″]As against this under the Islamic system of Jurisprudence and Law, the sovereignty lies with ALLAH alone and no Legislature can override the law of Allah. Under the English system, the leader of an overwhelming majority in the Legislature can become a despot and use his majority to perpetrate himself in power by toying and tinkering with the constitution which is a play thing in his hand and since the sovereignty lies with the Legislature, in theory, the same goes to pocket of the leader of the Majority in the Legislature who becomes the sovereign of the leader of the Majority in the Legislature who becomes the sovereign and then there is no remedy to check that determinate human superior.
The judiciary can hardly stand in the way of this sovereign if it admits itself to be the creature of the law. However, in the Islamic System sovereignty is not in the pocket of the leader of the overwhelming majority in the Legislature because the sovereignty does not belong to the Legislature but belongs to Allah. The Legislature is itself subject of the Law, the Law of Allah and therefore, it has no power to curtail the powers of the Courts to judicially review the Acts of the Legislature as well as those of the executive. The Rule of law in this highest sense of the Legislature executive and every other authority being under the Law of Allah (Almighty) was propounded and laid down neither by Dicey nor by Blackstone, nor by Gains, nor by Plato but by a desert dweller, who in his first address as the first Caliph of the Muslim State said “Oh ye Muslims, it is obligatory on you to obey me and owe allegiance to me so long as I act in accordance with the Law of Allah and the word of the Prophet Muhammad (PBUH). The moment I deviate from that path, it is no longer incumbent on you to obey me or to show allegiance to me.”
These few words uttered fourteen hundred years ago shine in the annals of the human history as the boldest and the oldest expression of the principle of the Rule of Law. The English Jurists claim to have enunciated the principle of the Rule of Law but in Great Britain, the King could do no wrong and even today in spite of the interpretation of the Judges whereby they converted the powers of the king in the rights of the people, there are still immunities, privileges and prerogatives. The Americans claim to have evolved the doctrine of judicial review through their great judge John Marshal but the Supreme Court of America is free to give any meaning to the words of the constitution in its wisdom which is not guided by any Divine Law as is the case with the Islamic System where the Holy Qur’an sheds the light to guide the Judges.[the_ad id=”17144″]
The system of the Rule of Law was not only enunciated by the Muslims for the first time in human history but it was also actually established and could be seen pulsating like a living organism in the Islamic State of Arabia during the life time of the Prophet Muhammad (PBUH) and his four Caliphs. Afterwards, when the determinate human superiors raised their ugly heads in the Muslims Society also and trampled the principle of Rule of Law, under their feet, the fight for the restoration of the Rule of Law started. The Muslims also started this fight first of all in human history and such great sacrifices were made on the altar of the Rule of Law that the entire family of the Prophet Muhammad (PBUH) with one exception of an ailing man, was martyred in the struggle to bring down the corrupt and despotic system of one-man rule. Nowhere in the entire history of mankind have so few done so much for so many for such a high cause than that done by Hazrat Imam Hussain (R.A) son of Hazrat Ali (R.A) and his family. Although the henchmen of the despot killed these few crusaders of the Rule of Law but their blood went deep in the soil of the human soul and sprouted forth into evergreen blossoms whose fragrance is everlasting. This fragrance has swept the countries of Asia, Africa, and Latin America. It has gone into the blood of the downtrodden masses whose hearts are fired with this inspiration, their chains are breaking, the despots are in trouble, they cannot stop the march of time, they cannot reverse the current of history. The pseudo-constitutional regimes cannot stand for long, their roots are all eaten up, the sun of human liberty is bound to rise and like the light of the sun, the fragrance of the Rule of Law cannot be stifled by the cleverest of the human superiors.