Helter skelter
The writer is a lawyer with a Master’s degree from Northeastern University
In August 2021, the Supreme Court of Pakistan had declared the Sacked Employees Reinstatement Act (SERA) as ‘unconstitutional’ and ‘illegal’ and all appointments made therein were also declared void. As a result, thousands of workers lost their livelihood and became unemployed by the stroke of a pen of a judge who retired the very next day.
Some four months later, on 17th December 2021 to be exact, the honourable Supreme Court overturned the previous verdict and reinstated all employees who faced sacking under the previous judgement. The same act which was declared ‘illegal’ and ‘unconstitutional’ previously, now stood to be valid.
Laws are made by people for people. Their validity transcends the technical aspects of propositions laid down in documents that were prepared years ago. But do law and morality go hand in hand? Does all legislation have to be based on moral grounds? Can judgements deviate from precedents which were laid down more than 50 years ago? They should. If it means giving relief to the innocent then absolutely.
We operate under the rigid assumption that once a precedent has been set, it is bound to be followed blindly. Such an idea is irrational, illogical and has no place in modern society. Times are rapidly changing; and due to advances in technology and mindsets, the notion of precedent, although may promote certainty, cannot assure justice. Of course, certainty is vital too but not at the expense of justice.
For years, laws have been formulated to ensure order and social conformity. They are coupled with punishments to deter defiance. But the entire edifice of decision-making courts and their decisions being binding of lower courts is erroneous. Judges, like everyone else, are humans. They make mistakes and such judgements are overturned. A classic example is the SERA judgement of the top court. But amidst this entire chaos, shouldn’t a man, who has been entrusted with the power to dispense justice, pause for a second and weigh the repercussions of his actions? Legality of SERA is open to debate. But yet again, why are the sufferers and victims those employees who had nothing to do with the formulation of the said piece of legislation?
Laws and morals should necessarily go hand in hand. Despite legislation being concrete, its arms are required to be bent by the reins of judges. Legislation, like morals, should be fluid and should be free to change over time. An example being racial segregation. In 2021, one cannot imagine the whites being segregated from the blacks. However, racial segregation was a trite law during the apartheid regime. Laws should correspond with morals. It is understood that morals are subjective and differ from person to person. However, the basic ingredients of truth, harmony and equality remain mutual for many.
Another example of why law and morality should coincide can further be expounded upon while keeping in view the death penalty. The principle should be, if you can’t give life, you shouldn’t be allowed to take one either. Human life is sacred, if someone breaks the law, rehabilitation or fines should follow. Death cannot be justified, that too by those who run a system based on deceits, lies and missing persons.
Laws evolve over time, just like morals. An example being the notion of a rape within marriage. Previously, marital rape was not considered a crime, but later it was criminalised in Scotland in 1989 and in the United Kingdom too. For judges who passed judgements pre-1989 upon the said issue did so while following ‘precedent’.
The entire legal system, all the laws and legalese will stand to be useless if it cannot morally and credibly do justice for those who suffered and continue to suffer at the hands of perpetrators and at the hands of this plagued system – a system which is run by those who exploit the poor and make the rich, richer.
Where the judiciary should be relieving victims of injustice, the hammers of justice are instead crushing the poor.
Published in The Express Tribune, December 21st, 2021.
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