Kristen Gyles | The almighty law
ONE OF the greatest obstacles to robust discourse is oftentimes an appeal to what the law says. Those with legal training especially have a tendency to turn every discussion on morality and ethics into one about the law. Since it is not obvious that oftentimes the latter has little connection to the former, let’s explore the weakness of the link between the two.
The law says women should not be employed to work at night, except in specified cases. It is also illegal for too much of a certain plant to be found growing on your property. It is illegal to drive without a seat belt. It is illegal to sell sex, and it is also illegal to use certain combinations of letters called ‘bad words’. As I pointed out a few weeks ago, up until our flexi-workweek law, it was illegal for places of business to open their doors on Sundays. But, let’s leave frivolous things alone. Let’s up the ante.
A little more than 200 years ago, the law legitimised the purchase of millions of West Africans by British planters and callously allowed for their brutalisation, since they were seen as nothing more than property.
Is my objective here to shine a dim light on the law? No. But people should appreciate the purpose and rightful position of the law in moral discourse. For context, the almighty law is, and always has been, a creation of mankind. Fallible, gullible mankind. The la,w therefore, will never reflect any greater intelligence than mankind itself, and to whatever extent that we as the human family suffer from stupidity, the law will always reflect said stupidity.
It, therefore, annoys a bit when the basis for every point in a discussion simplifies into what the law says. Or even worse – when discussions surrounding the creation of new laws are simplified into what already-existing laws say. The law is (or should be) something we as a nation create for ourselves. We elect people who have the duty of seeing to it that the laws we collectively think are reasonable and just are put in place. It is therefore unsettling whenever members of government say things like “An elected government is elected to govern”, to suggest that the power is with them to do as they please. Again, no. The Government is elected to do what we request of them. They serve us. And that seems to be remembered only when it is election time.
But, to return to the point, if we have laws in place that either don’t make sense, facilitate the perpetuation of immoral actions, or don’t reflect a respect for human dignity, all we have to do is change them. So, it would be good if we could begin separating what makes sense from what is written on paper. And if the two don’t coincide, many bookstores around the country sell erasers.
At a press conference two Sundays ago, members of the Government seemed to be flirting with the idea of a constitutional amendment in 2022 to allow for the extension of states of emergency by a simple majority, instead of a two-thirds majority. I’m sure there are merits to the idea. Again, there is nothing wrong with constitutional change – as long as it is democratically agreed upon.
However, what was disconcerting was the clear motive behind the need for constitutional reform.
For yet another time, the Government has tried to have states of emergency extended, without success, because of the unwillingness of the Opposition to support an extension. The Government thinks its best bet at reducing crime is prolonged states of emergency, while the Opposition thinks they pose human-rights threats. (I refer to the Government and the Opposition as though they are homogenous groups because they, in fact, think like homogenous groups and not individually.) The Government, wanting to do their thing without hindrance, is now considering constitutional amendment.
That is not how it should work, or how it was meant to work. It defeats the whole point of a Constitution if it is just going to be changed whenever the Government wants to overcome a challenge in getting a law passed. It is great that such a motive was vocalised, actually. Now, when certain constitutional changes are suggested by the Government, we will know why.
It has become clear to everyone that crime is bigger than us all. It is not a simple chess or domino game, where all that is needed to address it is wits and foresight. The current Government may have originally thought that by now, private security companies would have gone bankrupt and we would all be camping on our lawns at nights with our grills open. Well, crime is still here and is arguably at its worst.
I am not criticising the Government for that, since crime is not something I believe any one government can control. There are root causes of crime which, unless addressed, will make crime-fighting into a tail-chasing affair.
But the Constitution is not the Government’s new year resolution to change half-way through the year, simply because it challenges whatever desired course of action. Furthermore, it’s not the Government’s prerogative to determine what the law should look like – it’s ours.