Internal political lawfare

Lawfare is generally considered a state-to-state affair but recently it has become a norm in Pakistani politics. Courts have taken a centre stage in Pakistani politics as political parties are using law and courts as a tool in their political strategy. Legal defences have become political narratives. It has been a tricky mix of politics and law with almost every political matter landing before the court. Literally, the ball of politics has been in courts constantly.

Colonel Charles Dunlap describes lawfare as “a method of warfare where law is used as a means of realizing a military objective”. In this sense, this lawfare may be a more humane substitute for political strategy in Pakistan. Political parties have also become skilful at their lawfare strategy. They have engaged top-notch lawyers in the country to represent in courts and on television. Political wings of parties are also active in election to lawyers’ associations all year around. As a result, the legal fraternity is seeing an unprecedented political split.

PTI has been aggressive with its use of the lawafre strategy. Against the backdrop of cases, arrests and a full-blown legal blitzkrieg, it has also been on the offence as well. It is using its constitutional rights as a political strategy too. First, it kept the Punjab and KP governments intact during the first phase of their agitation against the government. After some eventful sessions of Punjab Assembly and Supreme Court’s interpretation of 63-A, it finally got dissidents de-seated through ECP. It fought for Punjab CM’s electoral process in Supreme Court as well and later when matters pertaining to PML-Q parliamentary leadership and votes were also decided by the Supreme Court after the Deputy Speaker’s ruling. However, it dissolved both these governments in January and the election date was also decided after intervention from the courts. The implementation of this order and the matters of delay are now before the Supreme Court, which has become quite a legal challenge for the government. PTI has also filed petitions against interim governments terming them illegal. Much depends in politics on the outcome of these cases before the courts.

Similarly, the saga of PTI resignations is also one of political lawfare. First, it resigned from the assemblies and moved the court when the Speaker Office left the issue hanging in the air. It wanted the Speaker to approve these resignations. Then, as a change of strategy, it wanted to come back to the parliament. It did not hesitated reaching the courts again — this time against the acceptance of resignations by the Speaker. Interestingly, the government earlier was citing Zafar Ali Shah case not to get PTI resignations accepted. Then PTI also cited the same case against approval of these resignations in its petition. The court has given relief and stopped the election commission from conducting by-elections, also annulling notification by the Speaker Office. This is classic lawfare — achieving an objective by means of law.

The government has launched its own lawfare albeit with a mix of use of force. Like any government, the law is easier to implement and on the offence when the force is on your side. It has launched its own assault not just on PTI but also taken the court head-on over the issue of the parliament’s supremacy. It introduced a ‘Practice and Procedure Bill’ to curtail the powers of Chief Justice of Pakistan to take suo motu action and constitute benches. However, the Supreme Court halted the Act coming into the force through an order. But the parliament still passed the Supreme Court (Practice and Procedure) Bill, 2023, with amendments after President Dr Arif Alvi returned the bill. The fate of the bill is still being fought out in the court.

The government also expedited the Foreign Funding Case where it got former prime minister and PTI chairman Imran Khan disqualified till the end of current term by the Election Commission. Toshakhana case also remains the focus where the government wants to get the former prime minister disqualified for life and also initiate criminal proceedings against him. Al Qadir Trust case is with the NAB in which Imran Khan was arrested and later released by the Supreme Court. Imran Khan is already facing a plethora of cases against him registered in the past year or so. The government has pinned hopes on a favourable verdict in one of these cases.

In the wake of the May 9 events, there is a fresh push by the government to use force of law against PTI. Legal cases have been registered against PTI supporters engaged in blocking roads, clashing with security officials, and burning and damaging military installations and public properties. The government has upped the legal ante by bringing in military courts as well for the trials of rioters. It has been mulling other legal options too, including a ban on PTI over the incidents of violence.

What is going to be the endgame of this internal political lawfare? It has been beneficial for politicos who find a way to settle their disputes humanely and back their narratives with court verdicts. But at the same time, it has been damaging for the courts. Pakistani courts have become a part and parcel of political strategy in Pakistan. Judiciary is seen as a party rather than an arbiter in these political matters. It happened with the establishment too, when they got too much involved. It is okay to use lawfare as a strategy but it is no substitute for politics.

Published in The Express Tribune, June 1^st, 2023.

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