According to the World Justice Project’s (WJP) Rule of Law Index 2017-18, Pakistan has abysmally poor global ranking of 105 out of 113 countries. On the regional basis, Pakistan has an overall score of 5 out 6 — placing it embarrassingly close to bottom of the table. Regionally, Nepal has the highest ranking (58) followed closely by Sri Lanka (59).

The WJP Rule of Law Index 2017-2018 paints a picture of the rule of law in 113 countries by providing scores and rankings based on eight factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice. WJP is a non-profit organisation which has ranked and scored countries in WJP Rule of Index 2017-2018 on the basis of 110,000 household surveys and 3000 expert surveys in 113 countries.

According to the WJP, rule of law is said to be upheld when the following four universal principles, based on internationally accepted standards are followed: "government officials and private persons are held accountable under the law; the laws are clear, publicised, stable and fair, and protect fundamental rights, including the security of persons and property; the process by which the laws are enacted, administered, and enforced is accessible, efficient, and fair; justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve."

As the definition reveals it is not surprising that Pakistan has scored low in the overall rankings. However, out of eight assessment factors used for scoring, Pakistan has scored appallingly low on two factors: order and security and civil justice. Order and security is based on absence of crime, civil conflict and violent redress. Pakistan is at the bottom of the class with the ranking of 113, even below Afghanistan, a country wracked by civil war for decades and without writ of the state in most of the parts of the country.

By placing Pakistan even lower than Afghanistan, WJP has raised eyebrows about its methodology to rank and score countries. Questions are likely to be raised about the methodology as Pakistan’s law and order situation has improved in the last four years after the military launched Zarb-e-Azb operation against militants after the APS massacre in Peshawar in 2014.

Pakistan, quite worryingly, also scores poorly when it comes to civil justice — ranked at 107 out of 113 countries. It is determined by factors such as accessibility and affordability; absence of discrimination, corruption, improper government influence and unreasonable delay; presence of effective enforcement; effective, impartial and accessible alternate dispute resolution mechanisms. In the regional scenario, Pakistan has been ranked even behind Afghanistan on these two assessment factors — civil justice and order and security.

The World Development Report 2017 (WDR), focusing on the subject of Governance and Law, made an interesting distinction between ‘rule of law’ and ‘rule by law’. Formal law is usually applied first to non-elites ("rule by law"); the shift to "rule of law" occurs when the elites themselves accept the law’s limitations.

Theoretically speaking constitutional constraints are accepted when two conditions are met: power in the system is distributed evenly and, secondly, elites realise that they will benefit more in the longer term by abiding by the constitutional rules.

In practice, however it is difficult to imagine as to why the elites will accept these constraints when the balance of power alters subsequently and one elite group triumphs over the other. Moreover, as independent courts always represent a threat to elite power, rulers will always try not to tolerate them when these rulers enjoy the power to manipulate or eliminate them.

Under such a scenario, it is a valid question to ask as to how constitutionalism will take hold or will be consistently upheld. As the WDR argues, it is only through a powerful normative framework that forces the elite to respect the law, constitutionalism can be guaranteed. More importantly, it is only through independent legal institutions that subsequent respect for law persists, even after the normative foundations have disappeared.

Apart from the last decade of independence and activism, judiciary in Pakistan has remained subservient to military or civilian rulers. Martial law has been upheld four times by the judiciary invoking the doctrine of necessity. Judiciary in Pakistan has been attacked by both a military dictator (President Musharraf in 2007) and a civilian prime minister (Nawaz Sharif in 1997). Judges have been removed through the use of PCO by military dictators or a rebellion engineered among judges by a civilian prime minister. Not only did Nawaz Sharif get away with the rebellion engineered against former chief justice Sajjad Ali Shah in 1997, Sharifs, their current travails notwithstanding, have been major beneficiaries of judicial decisions in the past — starting with the 1993 restoration by the Supreme Court.

In Pakistan, rule of law, inherited from the colonial power at the time of independence, has eroded in the last seven decades due to uneven distribution of power among the various elite players. There has been no realisation among the elite, civilian or military, that they will gain more by abiding by the constitutional rules. As elites, both military and civilian, have not accepted law’s limitations, the transition to rule of law has not materialised.

Political parties can achieve civilian supremacy only by upholding the rule of law and reforming civil service by depoliticising it. It is the only way by which service delivery will improve meaningfully and space for civilian supremacy will be created. Military establishment has hatched many conspiracies against civilian rulers in the past but it cannot be blamed for political leadership’s inability and unwillingness to carry out reforms and uphold the rule of law.

Judicial activism in the last ten years has led to accusations of both judicialisation of politics and politicisation of judiciary. Only when both the two sacred cows – Sharif family and military establishment — are made to abide by constitutional rules, one can be certain that Pakistan’s transition to rule of law has begun in earnest.