Pakistan’s biggest legal challenge is understanding the law
Hassan Aslam Shad
AS “5th Generation Warfare”, the term “Lawfare” has recently become a buzzword in Pakistan. In addition to the lack of basic understanding in Pakistan of what the law represents and what are the potential uses that it could be used, this concept risks being misused by the so-called “experts”. This may distract Pakistani policymakers from the real legal challenges Pakistan faces that deserve immediate attention.
Simply put, law is the use of law as a weapon of war. It is an essential tool in the art of governing in the 21st century. It is a doctrine that must be anchored within the framework of Pakistan’s national security and foreign policy. Hurry up. The earliest would be best. Lawfare is inevitable. Countries that do not weave the law into the fabric of their governance risk losing battles – kinetic, non-kinetic and reputational – and, most importantly, suffer financial consequences.
Lawfare can be seen performing in different areas. Countries wage legal battles in courtrooms; use legal instruments to coerce their opponents; and create “strategic space” through legal tools to execute military and non-military campaigns. Internationally, coalitions of like-minded states systematically use the law to arm twisted adversaries for specific purposes.
Take the case of Iran. Apparently Iran is under US sanctions. But that’s not all. The United States has indeed set in motion the wheel of the international system against Iran to restrict Iran’s access to the international financial system. These legal steps forced the United States to weave international laws around Iran’s neck. And it worked.
Another example is Pakistan. In June 2018, Pakistan landed on the FATF gray list. However, unbeknownst to our political decision-makers, the genesis of the FATF law against Pakistan does not lie in 2018. Rather, it lies in two United Nations Security Council resolutions – 1267 and 1373 – adopted in 1999 and 2001, respectively, with an emphasis on anti-terrorism. Pakistan has so far failed to extricate itself from the FATF gray list. The reasons are both political and legal. Although Pakistan cannot change the political equation, if its policymakers knew what legal challenges were facing Pakistan, safeguards could have been erected to defend Pakistan’s interests. The delay, in this case, left Pakistan with the FATF albatross strapped around its neck.
Another law that has left Pakistan with a bloody nose – more than once – are the disputes in international courts and tribunals in which Pakistan has been embroiled over the years. The law can become a complicated affair for a country suffering from war waged by a shrewd adversary who knows how to harness the legal rules to its advantage. Think of a cuttlefish that confuses its enemy by releasing ink. A country that knows how to play with the system – quickly – will eventually seize the situational awareness of the adversary. These factors determine the outcome of war – both kinetic and non-kinetic.
Take the example of Reko Diq. This costly arbitration resulted in a whopping $ 5.9 billion against Pakistan by the World Bank ICSID. Reko Diq is a classic example of a monstrous blunder. Among other things, Pakistan has failed to (i) understand the implications of an agreement on bilateral investment treaties; (ii) carry out due diligence on counterparties; (iii) understand the implications of accepting applicable foreign law and arbitration clauses in an international contract; (iv) define its legal interests by drafting the necessary national laws; (v) and timely engage a qualified international legal adviser who could have advised Pakistan on the underlying international commitments.
The multiplier effect of these blunders for Pakistan is that its coffers have been emptied – and will continue to be – in settlement of international commitments incurred in the past due to nonchalance, incompetence and corruption.
What needs to be done – right now – is for Pakistani policymakers to be told that the law is not going to go away. He’s here to stay. Pakistan has the option of keeping its eyes closed like a pigeon hoping the cat will disappear. But, we know how this story ends. In other words, the state has no choice but to institutionalize the law in all verticals and fields. Military officials, government and public sector officials should be trained in the particular legal discipline that applies in their region.
Pakistan will also need to identify the legal challenges it faces as well as the capacities of its adversaries. Pakistan’s legal challenges are both international and national in nature. International challenges are those that arise from supranational rules and commitments – UN resolutions, international treaties, FATF, etc. the state. A classic example is the Tehreek-e-Labbaik Pakistan (TLP). In addition to deconstructing the base of support for the TLP through education and awareness campaigns, the state needs constructive law against the TLP to deprive it of the legality on which it thrives. This could be done by amending the Pakistani Penal Code and enacting legislation that combats hate speech and disinformation.
Over the years, the law has grown from a simple concept to a meta-discipline that intersects with other disciplines such as cybersecurity, aviation, navy, economics, psychology, and information warfare. . Pakistan’s external and internal challenges will only increase over time. Today Pakistan finds itself in the middle of a FATF law. Tomorrow he could face another insurmountable challenge. In order to respond meaningfully to future challenges, Pakistan will need a well-thought-out and institutionalized legal strategy that allows it to see through the fog, prepare for challenges and focus on solutions.
Hassan Aslam Shad is an international lawyer based in the Middle East. He is a graduate of Harvard Law School, USA and the first Pakistani to intern with the President of the International Criminal Court in The Hague. E-mail: [email protected]