A question of ‘strategery’

The problem of how to resist a superior force is one that is as old as time. As it happens, so is the answer.

When confronted with overwhelming force, the solution is not to offer open battle but to hide in the shadows, emerging only to snipe at a passing column, to draw a detachment into a small but deadly skirmish; in short, to inflict the death of a thousand cuts on the enemy.

The term ‘guerrilla’ literally means ‘little war’ and was first coined to refer to the fighters who harassed the armies of Napoleon in Spain. From there, it is a direct line descending through the Long Marchers of Chairman Mao to the Viet Cong, the Mujahideen, the Taliban, the rope-a-dope tactics of Muhammad Ali, and, most pertinently, the legal wing of the PPP.

When the PPP first came to power, it had the option of embracing the lawyers’ movement. Instead, while the PPP repeatedly swore to reinstate the Chief Justice of Pakistan (CJP), perhaps even with one hand on the Holy Quran, it also repeatedly reneged on those oaths. It was only as a consequence of a popular convulsion which left the PPP no choice, that Iftikhar Muhammad Chaudhry was restored as the CJP.

One likely reason why the PPP took such an obstructive stance is that there is very little which can be done about a rampant judiciary. At the end of the day, the only real check on the superior judiciary is its sense of propriety. That sense of propriety depends in part on inherited tradition and in part on public perception. The Pakistani public, however, sees the judiciary as a solution for all evils. All of which is another way of saying that our judiciary is currently not significantly constrained by public perception.

In these circumstances, how does one survive an evidently (but perhaps righteously) hostile court? The solution, as noted above, is to adopt the standard tactics of the insurgent. The PPP, therefore, does not pick direct fights with the judiciary: Instead, it prevaricates, it delays, it finesses, it draws the court into a debilitating sequence of meaningless fights and so it lives to fight another day.

Take, for example, the case challenging Musharraf’s infamous National Reconciliation Ordinance (NRO) which had erased criminal charges pending against many persons (coincidentally including the late Benazir Bhutto and her husband). In December 2009, the Supreme Court (SC) declared not only that the NRO was unconstitutional but that all cases processed under the NRO were still open, including, most importantly, the cases against Asif Ali Zardari earlier pending in Switzerland.

After its decision, the SC exerted every sinew to get the federal government to ‘implement’ the NRO judgment, by writing to the Swiss and asking them to restart the cases. Even though any such letter would have been a waste of time, the Swiss having no interest in pursuing Mr Zardari any more, the PPP refused. This, in turn, produced a series of hearings in which the federal government presented every possible excuse to refuse to send the letter in question, including the official version of ‘the dog ate my homework’ (‘Sir, voh file nahin mil rahi’). Eventually, the SC gave up and suspended its own judgment in review proceedings.

There is much speculation that the shelving of the review petition was intended by the judiciary as some sort of an olive branch. If it was, the gesture failed. Instead, the relationship between the judiciary and the PPP has continued to be one which, in colloquial Punjabi, is described as existing between a brick and a dog.

Many members of the legal community regard the PPP government’s approach as shameful. That may well be true, but it misses the point. By entangling the judiciary in a never-ending series of skirmishes, the PPP government has succeeded in muddying the waters. Faced with daily reports of strife between the government and the judiciary, the average citizen tends to triangulate so that even those who favour the judiciary leave open the possibility that, perhaps, the judges are also at fault. This response operates to the advantage of the government because, while the regime is already subject to heavy criticism in any number of fields, the judiciary must, like Caesar’s wife, avoid even the appearance of impropriety.

The manner in which the government has handled the recent re-emergence of the NRO review petition is a perfect example of legal guerrilla warfare. On day one, the federal government asked to change its lawyer, knowing full well that the application was likely to be refused. Had the SC called the government’s bluff and allowed the change of counsel on day one, the review would have been decided by now. Instead, the SC unwittingly cooperated by sternly rejecting the application. The Feds then challenged the rule which says that lawyers cannot be changed in review (again on the basis of a risibly defective argument), at which point it finally became clear to everyone that the government was not interested in arguing the matter, only in claiming victim status.

Having already boxed itself in, the SC then tried to extricate itself by saying that (a) the additional attorney-general (AAG) could be heard as he had been a lawyer in the original case and (b) the AAG could — nudge, nudge, wink, wink — be assisted by any counsel of the government’s choice. This eminently sensible option was, of course, rejected by the government on “grounds of principle”. In the meantime, the solicitor instructing the AAG withdrew, as he was allegedly “indisposed” (though apparently healthy enough to deal with 400 other cases, as was acidly noted by the CJP) while the file dealing with the withdrawal of instructions was found to have been “misplaced”. The net result so far is that two weeks of judicial time have been wasted and the SC seems stuck with no option but to dismiss the review application; which is perhaps why the case was recently adjourned for two weeks.

Law schools tend to teach jurisprudence more than military tactics. But if the judiciary is to avoid being outfoxed, the CJP may have to replace his copy of Black’s Law Dictionary with Sun Tzu’s Art of War.

Published in The Express Tribune, April 23^rd, 2011.