It has been flustering debate throughout history whether law and morality coexists. We have conspicuous theories such as utilitarianism, consequentialism, neo-naturalism, Nietzscheanism, relativism and more recently positivism, to tell us why we as human beings follow law. In Pakistan there always has been an ongoing brawl over what theory of law our jurists are following to ensue principles of justice.

The Great founder MA Jinnah right after the formation of Pakistan did gave us some guidance in this regard. Take for instance his speech to the people of Australia recorded on 19th February, 1948. “The great majority of us are Muslims. We follow the teachings of the Prophet Mohammed (may peace be upon him). We are members of the brotherhood of Islam in which all are equal in rights, dignity and self-respect. Consequently, we have a special and a very deep sense of unity. But make no mistake: Pakistan is not a theocracy or anything like it.”

The judiciary was no different back then, CJ Muhammad Munir in the State v. Dasso (PLD 1958 SC 533) echoes legal positivism. He stated; “If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State and the revolutionary government and the new Constitution are, according to International Law, the legitimate government and the valid Constitution of the State. [p.539]” This was depicting Hans Kelsen Pure theory of law. Miss Asma Jilani Vs. The Government of the Punjab and Another (PLD 1972 SC 139), Begum Nusrat Bhutto Vs. Chief of Army Staff and Federation of Pakistan (PLD 1977 SC 657), Syed Zafar Ali Shah and others Vs. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869) are just few of cases in which we were more than happy to incorporate legal positivism theory.

At this point it is important for the reader to understand what it means by positivism. Legal positivism is the legal philosophy, which argues that any and all laws are nothing more and nothing less than simply the expression of the will of whatever authority created them. Therefore, from a positivist perspective, it can be said that legal rules or laws are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such.

The Divergent to this natural law is derived out of morality. Stephen Pope in his book ‘Reason and Natural Law’ states, “The center of theological ethics is God-the ineffable one, the nameless one, and holy mystery, who remains always incomprehensible to human reason…The human person is made in the ‘image of God’ and endowed with free choice. Since each person has the capacity to choose to accept (or to reject) the moral principles of the eternal law.” However make no mistake that natural law is purely based on religion. Law without morality, said Devlin “destroys freedom of conscience and is the paved road to tyranny”. Devlin appealed to the idea of society’s moral fabric; what is more socially acceptable by beings.

The confusion between the legal philosophical jurists is not just restricted to theoretical books, rather its realm is present in form of judicial activism in our judiciary. What triggered this question in my mind are the recent ruling by the Honorable Islamabad High Court and Honorable Sindh High Court. Before I get on to discuss the above rulings, it is pertinent to remember that the Constitution of Pakistan 1973 expressly state that under article 2A and 227(I) that Islam being the religion of State and that All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah. This smudges legal positivism at great length, nonetheless where the honorable Judges have to justify any actions unjustified otherwise they happily quote Kelsen or Hart ignoring all divine law.

The recent ruling by Sindh High court banned the production and distribution of liquor producers in Sindh. This production was allowed for the consumption of Non-Muslims. One fails to understand was it morality which compelled the court for such a ruling as restricting such production is violating the fundamental rights contained under Article 18 which states that every citizen shall have the right to enter upon any lawful profession or occupation. Not surprisingly this decision is challenged before the Honorable Supreme Court on the grounds that the factories did have the valid licenses and government had granted them in accordance to law. The court failed on part of rules of natural justice to determine if these factories were doing something illegal. Is it judicial activism or moral policing covered under the veil of so-called justice? The very same Sindh High Court which sees law through positivist eye in Ayan Ali Money laundering case thus exhibited an entirely contradictory approach in the application of law.

Let’s now come over more intriguing case. Earlier in the month of February, the Islamabad High Court very eagerly accepted a petition regarding the ban on Valentines Day. The petitioner view was that celebration of Valentine’s Day is “un-Islamic and against the values of our religion and culture”, astonishingly the court had no difficulty to agree to the socio-moral and religious viewpoints of the petitioner without applying the objective rules and laws. The abortive implementation of this order passed by the court itself speaks of the absurdity and irrationality of the order. Drowned under its own personal scale of morality this prodigious adventure had no impact in practice, just mere embracement globally.

The concern is simple, if morality is the litmus paper test for the judicial law making and interpretation then the actions of Mumtaz Qadri are clearly justified as a large population of people consider his action justified. Yet the apex court followed the law positively rather be confined to personal dogmas of neo-naturalism (otherwise called an inborn sense of justice). The dilemma of current times is that there is no clarity over what school of thought we as a society accept? Though generally all the modern democratic societies believe what Austin said- “the matter of jurisprudence is positive law”- and so did we, but this two-faced judicial activism by moral gladiators will cause absurdity, ambiguity, prejudice and irrationality. Thus there is a strong need to determine that how we as society should function via morality or positivism, but not through free personal choice of the jurists.