Law is politics

Updated 29 Nov, 2019

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The writer teaches at Quaid-i-Azam University, Islamabad.
The writer teaches at Quaid-i-Azam University, Islamabad.

THE Prussian general von Clausewitz famously said ‘war is politics by other means’. We in Pakistan understand this better than most, notwithstanding the refrain of those who claim to defend the physical and ideological frontiers of the country that theirs is a vocation totally divorced from political interests.

There is another vocation which its practitioners also claim is untainted by politics. This is the profession and practice of law, and over the past few days the highest court of law in the land has been in the spotlight, claiming to uphold the highest principles of impartiality in the matter of the army chief’s tenure extension.

At the end of the day, the Supreme Court’s decision to take up the issue concluded predictably; many feathers were ruffled, the media and chattering classes speculating furiously for days on end, but ultimately the status quo was not decisively undermined.

Certainly Pakistan’s beleaguered progressive, democratic community was able to live vicariously through the proceedings. The chief justice said that he was subject to taunts and accusations of being a CIA agent, working to promote an Indian ‘agenda’ — perhaps this gives one a sense of what many who speak truth to power face. He gave further voice to many dissident thoughts when decrying the virtual immunity of ‘cantonments’ from legal accountability.

The law has always been a political instrument around the world.

This has happened before. The current Supreme Court follows in the traditions established at the tail end of the Musharraf dictatorship, when chief justice Iftikhar Chaudhry famously became the poster child of a movement led by the legal fraternity.

In those heady times, much more daring language was used against both the Musharraf regime and the military establishment more generally, by the bench, bar, and what at the time was a fledgling private TV media. But things changed quickly, as they do in Pakistan, and by 2010 the superior judiciary was spearheading accountability drives in a more familiar vein, ‘corrupt’ and even ‘disloyal’ politicians subjected to inten­­se scrutiny through cases such as Memogate. Fast forward another few years and two elected prime ministers had been disqualified from their posts by the apex court.

To put it politely, this a long story, with many junctures, the tone being set in the country’s first decade: in 1954 the Federal Court provided legal cover to the dissolution of Pakistan’s first constituent assembly and in 1958 it concocted the abominable ‘doctrine of revolutionary necessity’. Indeed, an objective analysis of the history of the law in Pakistan — both letter and spirit — involves recognising its colonial genesis. The British, like their successors in many spheres of statecraft, claimed the law to be the embodiment of a higher, rational spirit. But in truth it was a hegemonic construct, selectively ap­­p­lied, arguably the primary ideological justification for 200 years of colonial bondage.

In short, to slightly tweak von Clausewitz, law is politics by others means.

In the prosaic narrative of modernity, the law transcends prejudice and personalised rule. In the story of actually existing modernity, the law has always been a political ins­t­rument around the world, and always will be, because it is in the name of the law that the modern state claims to defend the people.

The Supreme Court’s taking up the matter of the army chief’s extension doesn’t hurt Pakistan’s polity, the cause of democracy or the country’s 220 million people. But the question must be asked: what about the many other excesses that take place in the proverbial cantonment? Why does the law not intervene there?

In fact, the law continues to be used as a big stick by unrepresentative and often dictatorial administrators at all levels of our society. Apart from the proceedings in Court Room No. 1 over the past few days, another type of politics — hopeful, transformative and of meaning to many more ordinary Pakistanis — was screaming to have its voice heard in the face of the law’s decidedly dark side.

Thousands of young people will march across Pakistani cities today as part of the Student Solidarity March. They will be dem­anding an unbanning of student unions — one of the many legally enshrined legacies of the Zia dictatorship — and a decriminalisation of political speech and assembly on college and university campuses across the country.

In the days leading up to the march, adm­i­nistrators at Balochistan University and Pun­jab University have issued notifications banning all political gatherings and rusticating students respectively. All in the name of the law.

It was noted in the recent hearing that the army chief was bound by office to refrain from political activities. Were young Pakis­tanis that represent our future, 140m-strong, gran­ted their constitutional right to engage in political activity, we would take one step towards decolonising our law and politics. They are, after all, two sides of the same coin.

The writer teaches at Quaid-i-Azam University, Islamabad.

Published in Dawn, November 29th, 2019