IF the law is kept in a state of flux not in small fringe matters, but in its most fundamental aspects, such as constant knee-jerk tinkering with the statutes and even the Constitution`s salient features then any aspiration to adhere to the `rule of law`, at a societal level, becomes meaningless. After Marx, there has been much debate on seizing the means of production. But what we have witnessed in Pakistan, in real time, is the seizing of the means of the promulgation of the law, and also of the means of constitutionalinterpretation.

Generally, a rules-based system ensures certainty and predictability.

More importantly, it allows ordinary citizens a semblance of dignity, provided that the rules have not been promulgated for coercive purposes. However, if the rules are malleable, particularly those which provide for the functioning of a democratic system but can be moulded if there is even a whiff of a challenge to those at the helm, then the people end upin a perpetualstate ofvulnerability. Our dignity, respect and well-being become contingent on whether the powerful feel threatened by our opinions, even existence.

At an individual level, we are then forced to eliminate the idealist and discover, instead, the realist in ourselves.

We are compelled to engage in good faith with yet another generation of sycophants, who preach deference to power, the lowering of the gaze, the bending of the shoulders, and the ways of genuflection.

Sadly, this has remained the reality for the vast number of people before us, and continues to be the reality even now.

Any challenge to the implementation of the momentary whims of the powerful invites serious ramifications.

As people, this may be the reality that we confront, but this is certainly not a reality that we have to accept for ourselves or for our children. At the very least, we deserve to harbour the belief that we deserve better.

The law empowers, but it also constrains. In a constitutional governance system, there are rules that distribute powers, assigning roles to different functionaries and institutions. There are things to be done, and money to be raised and spent. Responsibilities are shared across different offices. And then, there are limits prescribed as well; at times expressly set out, and at others to be inferred by looking at the constitutional framework in its entirety.

Richard Primus, a professor of constitutional law, in a recent lecture, under-scored the following: `[T]he first rule of constitutional government, is also the first rule of playground basketball`, that is `you ought to be willing to have fouls called on you`. In other words, `you must be willing to not always get what you want`. This rule applies to individuals and it equally applies to groups of people and institutions. And this is the essence of the `rule of law`, that, at its very foundational level, everyone each one of us is subjeet to it unless we can show how its application to us, in particular situations, violates our core rights as human beings.

But what do we do when those who find themselves in power wield the pen and start rewriting the rules? Not because as elected representatives they respond to a desire for change emanating from the people, but because such rewriting serves the powerful in perpetuating their power. If the Election Act, 2017, promulgated at a better time, with a better vision of governance, poses any chal-lenge, strike a provision here, add a phrase or two there. If certain judges stand tall against the incursions of the executive, then wield a much bigger pen to strike out major portions of the text of theConstitution, to add new text, crippling the power of those judges while elevating others who are seen to serve with lowered gazes and bent shoulders.

If some of the judges in a particular high court raise their voice, to which otherjudgesin allthe other high courts murmur in agreement, then have those adjudicators marginalised in their own court. Throw in novel interpretations of the provisions of the Constitution, and receive sanction for such interpretations, thereby keeping the law in flux at times without even having to wield the pen.

This era should be remembered not for which political party got hammered and which ones found favour, but instead, as one where a few kept their faith in the sanctity of the law alive, while many others became conveniently comfortable with the law in a state of flux. • The wnter is a lawyer based in Islamabad.

The views expressed are his own and do not reflect those of his firm.

awahid@umich.edu