Beyond Morality And Legality

Beyond Morality And Legality

“Piety and moral conduct construct the countries and prolong the ages” says Imam Jafar Sadiq. Moral intellectualism is a view according to which genuine moral knowledge must take the form of arriving at discursive moral judgments. In other words, virtue is knowledge; if you know what is right, you will do what is right.

The judiciary of Pakistan has failed morally to dispense justice, as a result military courts stepped in to obfuscate the Constitution. The 21st Amendment in the sacrosanct Constitution of Pakistan created a moral and legal abyss for the citizens. Military courts are against the principles of natural justice as they set aside the rules of natural justice. There are three basic rules of Natural Justice; audi alteram partem (hear the other side), against bias and a reasoned decision. But the Military courts gives no right of hearing because of suspect basis, reasoned decisions are not given and facts are never published in front of public which is a direct violation of the Article 19A-Right to Information of the Constitution of Pakistan. There’s a legal maxim “justice should not only be done but it should seen to be done”. The rulings of military courts seem discretionary which is an abuse of law while the basic purpose of law is to protect rights and duties of the individuals. Mere existence of substantive provisions without legal enforcement is beyond morality cum legality. The Supreme Court of Pakistan in Feb 1999 declared the military courts unconstitutional created by Nawaz Sharif in 1997. The Chief Justice of Supreme Court Iftikhar Chaudhry said, “Military courts cannot be established in the presence of an independent judiciary”. Pakistan has ratified the International Covenant on Civil and Political Rights which ensures free and fair trial, but with the establishment of the military courts it’s erroneous to meet these ends. Also The SC’s ruling in 1999 was on its assessment that military courts for civilians violate the guaranteed rights to fair trial and that they are a parallel system for all intents and purposes which is wholly contrary to the known existing judicial system having been set up according to the Constitution. Besides as a party to ICCPR, Pakistan is obligated to uphold and take measures to ensure basic fair trial. The diktat of establishment will strengthen the role of military weakening democracy. The three important functions of government legislation,executive and judiciary are serving as pygmies. To avoid legal and moral abyss “the judiciary will have to eliminate the sentiments of discrimination from all its decisions as its the only way to create moral authority” says Asma Jahangir. Legal principles should be according to morality and natural justice to abandon the abuse of law. Judiciary must be de-politicized and unbiased. Political controversies have always destroyed one of the most important pillars of the state. Judiciary has to do soul searching and revamp itself according to tested judicial traditions.

The clergy of lawyers behaved immorally after the execution of the Mumtaz Qadri. Strikes against the decisions of the honorable courts will reverse the judicial activism.The religion of Islam is driven by Maslahah– gaining of good and depriving of harm. The Holy Prophet (PBUH) stated, “The best of you are the most well-mannered”.

The ongoing operation against carrying of arms in Punjab is beyond morality. The arrest of the civilians possessing arms with or without licences according to the Pakistan Arms Ordinance, 1965 is fatal. Although Hammer is a good tool but our problems are more complex than nails. The arrest of the individuals includes chronic heart and diabetic patients which is disturbing their health situations. Such arrests amount to violation of human rights. The jails of Pakistan are not based on reformatory principle, they are headed by the brutals. The laws of Pakistan are going ambiguous which need to be over viewed by the respected Parliament.


The views expressed in this article are those of the author and do not necessarily represent the views of or any organization with which he might be associated.

Usama Saleem Dogar

Author: Usama Saleem Dogar

The writer is a student of Shariah and Law at International Islamic University Islamabad and has keen interest in political science, history and literature. He is a social activist and has served with many NGOs, including the British Council, in promoting human rights. He was also the National Coordinator for Education and Human Rights at the National Youth Assembly.