Judicial Defiance
By Faisal Siddiqi
“Though this be madness, yet there is method in it”. — Shakespeare.
It has become common ‘wisdom’ to explain the legal strategy of the PPP government by the apparent madness, badness or incompetence of its legal team.
But appearances are deceptive and this apparent legal madness and irrational defiance of the PPP’s legal team are tactical moves of the emerging ‘politics of judicial refusal and defiance’ being presently adopted by the PPP government.
In other words, this is neither madness, badness or incompetence but a strategy guided by a particular ‘reading/interpretation’ of the superior judiciary and a politicized legal strategy based on that ‘reading/interpretation’.
To say the least, the historical relationship between the PPP and the superior judiciary has been problematic. This has given rise to a particular historical ‘reading/interpretation’ by the PPP about the nature of the superior judiciary, which ‘reading/interpretation’ sees as a politicized institution that is an institutional political threat to the PPP.
Based on such a historical ‘reading’, the PPP has either adopted a legal-cum-political strategy to counter, or use, the superior judiciary or has adopted a politicized legal strategy to question the court’s legitimacy and to distract, or divert, its judicial proceedings. For the PPP, the law has always been seen as politics by other means.
Enter March 9, 2007, and the great judicial revolt of the honorable judges of the superior judiciary. For the PPP, the judicial revolt was tactical, not strategic. According to this PPP discourse, the honorable judges were tactically defying and defecting from a dying regime but strategically, the superior judiciary remained an anti-PPP institution. Therefore, between March 9, 2007 and July 20, 2007, the PPP legal strategy of the ‘Politics of Judicial Revolt’ was to use the judicial revolt to weaken the military dictatorial regime in Pakistan for an eventual civilian transition.
Scene 2 — July 21, 2007 and Feb 17, 2008: apart from ad-hoc support for the defiant judges, the requirements of transition and the deal/NRO politics, required the PPP leadership to adopt a strategic silence about the judicial conflict between the defiant judiciary and the military regime, supporting only the vague notion of an independent judiciary. Therefore, the ‘Politics of Judicial Revolt’ led to the ‘Politics of Legal Ambiguity’.
Scene 3 — Feb 18, 2008 to Aug 2008: the PPP had two conflicting political partners, i.e. Musharraf and the PML-N, which gave rise to the contradictory, and legally absurd, stances on the restoration of the judges. Therefore, the ‘Politics of Legal Ambiguity’ led to the ‘Politics of Legal Absurdity’.
Scene 4 — Aug 2008 to March 15, 2009: in a master tactical stroke, the PPP became ‘independent’ by getting rid of both political partners. Therefore, with no political requirement to appease the PML-N, the PPP legal strategy was simply to deny the existence of a judicial crisis. Therefore, the ‘Politics of Legal Absurdity’ led to the ‘Politics of Denial’.
Scene 5 — March 16, 2009 to Dec 15, 2009: with the departure of Dogar’s jurisprudence of judicial abdication and entrance of the restored judiciary’s jurisprudence of judicial activism or constitutionalism, the lego-political strategy of the PPP entered a phase of legal chaos. The PPP’s defeat, and fear arising out of the successful long march, led them to implement every judicial or administrative decision of the Supreme Court blindly and absolutely (not even seriously judicially challenging it) on the presumption that obedience would lead to mercy and constitutional ceasefire. Therefore, the ‘Politics of Denial’ led to the ‘Politics of Appeasement’.
Scene 6 — The NRO judgment and proceeding has convinced the PPP that the superior judiciary is allegedly out to get it at any cost. This is the PPP’s reading/perception and perceptions are fatal because lego-political strategy is based on perceptions, not objective reality. Enter Dr Awan and the gladiator’s politicized legal strategy of judicial defiance.
This is a three-pronged strategy. Firstly, law and constitutional argument is irrelevant and what matters is the balance of power between the PPP and the judicial institution. They have crudely adopted the Churchillian motto — we will fight them in the courtroom, in the bar rooms, in the media and on the streets.
Secondly, law and constitution is not the problem but particular judges are. Attack the judges and not the legal argument or strategy.
Thirdly, since law and constitution are irrelevant, the competence of a government lawyer is his loyalty or jiyalaism, not his constitutional competence. Books of shahadat become more relevant than books of law.
What can we say about the doctor and his political medicine? The presumption underlying his diagnosis is flawed. The superior judiciary is not anti-PPP but anti-everything which blocks the path to sustain and increase its judicial power. This is a battle between a consolidating civilian government and an emerging judicial power. It is an institutional, not a personal, conflict.
Constitutional conflict is permanent but the path towards constitutional breakdown can be avoided by a change in approach. Firstly, the PPP has to stop legal shouting, start constitutional and strategic listening and de-personalize this judicial crisis. In short, stop being so angry, ladies and gentleman of the PPP.
Secondly, the honorable superior court judges have to take the PPP’s objection about the perception of ‘selective accountability’ seriously. Even if it is presumed that it is a false or an irrational perception, the interest of justice requires that the superior judiciary should never be perceived as unfair. Fairness, not constitutional infallibility, is at the heart of constitutional and public legitimacy. Statements such as ‘this is not an independent judiciary’ or ‘this is not a democratic government’ only exacerbate tensions and lay the road to constitutional breakdown. Lest, the Taliban, Bonaparte generals and American imperialism have the last laugh, it is imperative that the institutions play their role in accelerating the reconstruction of a modern, democratic, constitutional state with each institution recognizing that we are all humans and not flawless.
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