Legal regime of a country consists of primary rules which create rights and obligations, the secondary rules which authorises the recognition of rights and obligations, the change in the primary rules, and the powers of adjudication so as to settle the finality of these rules through interpretation.1 The legal system consists of constitution, statutes, rules made by authorised bodies, custom ie, the rules enforced by administration of justice in the light of traditional practices and the principles of the relevant code followed by in the framework of codes such as civil law, common law or codes of religious laws. It is, in fact, a set of laws and the way they are used and is a system for interpreting and enforcing these laws.
This definition of legal system raises the question that what is law? There are many definitions of the term, 'law' say, for example, Salmond defines it as a body of rules recognised and applied by the state's administration of justice.2 In England, for example, what the Queen enacts in the parliament is law. In United States law passed by the Congress and interpreted by the Supreme Court of United States is the law.
In other words, where written constitutions have been adopted, the law is not what the legislature enacts, in fact, it becomes law when the same in interpreted by the Supreme Court which in Hart's3 concept is the final adjudicator. Hans Kelson4 termed this process of final adjudication as a Grund norm. And Austin had termed such an arrangement as sovereign's command.5
In this background, a state system comes into existence consisting of the constitution, the legislature, the administration, the judiciary and a system of elections. This structure functions within the given set-up of the legal system. The legal system determines the nature of law, obligations and responsibilities of individuals, groups and state institutions. And for a level playing field, the system lays down the rules through primary and secondary rules. For example, fundamental rights are enshrined in the constitution.6 Political parties are governed by statute7 and the administrative framework functions through a series of statutes passed by the legislature, who is the sole authority8 to enact laws in Pakistan.
However, a fundamental question which usually arises is that within a given legal system is what the law is? One may question the validity of this asking, but reality is that it is a serious question in the realm of philosophy of law.9 For example, what the Queen in England enacts in the parliament is law. No questions are raised about this fact since the English legal system recognises it.
The same is, however, not true about the United States. In United States, a law enacted by the Congress becomes law when the same is interpreted as law by the United States Supreme Court, since the US Supreme Court is the final adjudicator of such issues and attains the status of Grund norm in the eyes of Hans Kelson.
The moot point so far discussed brings out a fundamental question and that is where the countries adopt written constitution, then in terms of the constitution a law becomes a law when the same is so interpreted by the Supreme Court of that country. In Pakistan too, we are governed by a written constitution and the constitution has bestowed authority on the Supreme Court to interpret the law and to declare it unlawful if the said law violates the constitutional requirements and the basic structure of the constitution.10 Obviously, the powers to a change a law vests in the parliament.
This debate also questions the role of political parties when they act contrary to their role provided in the constitution. Obviously they are the lawmakers but beyond that they have no authority to adjudicate upon the leading issues emerging in society.
For example, the primary rules (statutes) of the country lay down rules of responsibilities. More precisely the crime and criminal activities are defined in Pakistan Penal Code (PPC). Any crime committed is punishable under the PPC and all the state organs are under an obligation to enforce the penalty imposed under the law. This position cannot be changed either by the administrative authorities or by a mutual consent of the political parties, since they are not the adjudicator. They can only change law through the process as provided in the constitution.
However, it is often observed that solely on their political interests, politicians try to work outside the legal system and they forget that there are bindings which are recognised by the law and the rules of adjudication of the country. Since any decision contrary to primary and secondary rules will be an unconstitutional work. The parliament cannot compromise the concept of equity provided in the constitution, and where a crime has been committed, it remains a crime unless the statute or primary rule is charged.
In this background, it is important for the political parties to consider the sensitive part of horizontal and vertical equities enshrined in the constitution and they should refrain from overstepping the balance created by the constitution.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates)
1. Legal system refers to a procedure or process for interpreting and enforcing the law. It elaborates the rights and responsibilities in a variety of ways.
2. Fitzgerald, Salmond on Jurisprudence, (12th edition, 1966) Sweet & Maxwell, London.
3. H.L.A. Hart, A Concept of Law, OUP (2000).
4. Hans Kelson, 'A Pure Theory of Law' OUP (1990).
5. John Austin, The Province of Providence, OUP (1960).
6. See Constitution of Islamic Republic of Pakistan, 1973.
7. See Political Parties Act, 1962.
8. See Article 70 of the Constitution.
9. H.L.A. HART, Essays in Jurisprudence and Philosophy, Clardine Press, (2001).
10. See Article 184 onwards of the Constitution.