It's now more or less settled that our legal system as it obtains falls short of the desired capacity and capability to effectively cope with the rising tide of lawlessness and violence. With most of the criminal laws being short on scope of their applicability the courts find hard to punish the charged accused. Equally, incapacitated are the instruments of investigation and prosecution. But when a government gets into gear to firm up the legal regime by introducing relatively stringent laws it confronts the challenge of striking a healthy balance between the rationale for a stiffer legal provision and rights of people in a democratic system - a kind of predicament the Nawaz Sharif government has got into on the legislation of Protection of Pakistan Ordinance (PPO). Its passage by the Senate where the opposition has clear majority is problematic given the opponents' determination to reject the bill as passed by the National Assembly. Justifying its stance Senator Farhatullah Babar (PPP) says "The PPO is not meant to protect the country from militants. Rather, it gives licence to security agencies to continue kidnapping people and to dump dead bodies across the country". The proposed law is 'aimed at providing legal cover to the killing and kidnapping of Baloch youths by security forces', says BNP-M chief Sardar Akhtar Mengal. Crudely said, the opposition is trying to suggest that our security personnel are cannibalistic and blood is their favoured drink. But that's not the reality on the ground; for reasons good or bad scores of innocent people are butchered on the streets of Pakistan every day, and no one gets punished because the existing law is grossly inadequate. Not that the opposition parties in the Senate would like to countenance street crime; their worry is that the PPO would be employed to silence voices of dissent, which is the true essence of democracy. But there is the harsh reality that the polity feels undefended in the absence of effective law enforcement. Quintessentially, the question at the heart of this controversy is how much sacrosanct the basic rights of a citizen are versus the security stakes of state.
Aptly coincidental to this raging debate is the guideline indicated by Chief Justice Tassaduq Hussain Jaillani in his full court address on Friday in honour of Justice Khilji Arif Hussain on his retirement. In his words "It is our duty, as a pillar of this state, to hold fast to believing in the seminal values of rule of law, human dignity, tolerance and compassion". He also took stock of the challenges, including terrorism, sectarian violence, ethnic cleansing, victimisation of minorities and weakened rights for women and children. But he also emphasised that while confronting the challenges "we should not justify undermining the national security", underscoring the imperative of striking a balance between security of the state and individual rights while fighting terrorism and protecting democracy. "A constitution is not a prescription for suicide, and civil rights are not an altar for national destruction. Fundamental rights exist only in a state where rule of law under the constitution reigns supreme". So, it is just not enough for the government to seek more powers for the security forces, as it is not enough for the opposition to overlook the need to have in place sufficiently potent law to control and eradicate terrorism in all its manifestations. The two must sit together and sort out their mismatching perceptions about the PPO, keeping in mind that the existing legal, jurisdictional and enforcement wherewithal is just not equal to the challenges the country is confronted with. Prima facie there is no reason that they should not act in unison and rise to the occasion. Should they fail, then there is no option but to live with what we have on our hands. Governance based on ordinances is only fractionally short of bad governance. It is the destiny of a democratic polity that rule of law must obtain, irrespective of how outdated the law is.