July 19, 2024
ISLAMABAD – Democracies depend on inclusion, not divisive rhetoric, labelling opponents as traitors.
On Feb 8, the people of Pakistan announced their verdict. The electorate spoke, and it spoke against the status quo. Regrettably, almost six months on, schemes to suppress the will of the people continue undeterred.
On Monday, a panic-stricken government announced that it would ban the PTI, and bring treason charges against PTI founder Imran Khan, former deputy speaker of the National Assembly Qasim Suri, and ex-president Dr Arif Alvi.
The announcement is the latest in a series of manoeuvres by the state where the law has been, and continues to be, weaponised to achieve a political purpose. In some cases, the judiciary has fought back; in others, it has endorsed the weaponisation of justice. To quote Justice Athar Minallah: “The perception of the existence of a coercive apparatus of the State cannot be ignored by a constitutional court, particularly having regard to the unjustified treatment of representatives of the people in the past … The approach of this Court, therefore, should be to err in favour of the millions of followers and their representatives …The courts and judges can no more bury their heads in the sand by ignoring obvious realities.”
This past year, the workings of a coercive state apparatus have been blatant. The PTI, arguably the country’s largest political party, was excluded from the electoral process, prevented from fielding candidates on a party ticket, and unlawfully denied its constitutional entitlement to reserved seats by the ECP.
Only last week, the Supreme Court reversed this series of errors. The PTI’s rightful and overwhelming voice in the Parliament was restored. Above all, this decision was a win for the people. Eight judges unequivocally held: “PTI was and is a political party, which secured or won general seats in the National and Provincial Assemblies in the General Elections of 2024.”
The PML-N has already moved the SC to review this decision.
An ill-advised review
A review of the reserved seats decision is an ill-advised move. The case was heard by a full court, and considerable time has already been spent on it. A review is ordinarily heard by the same bench, and the scope is extremely limited. In review jurisdiction, the court only sits to correct errors floating on the surface of the record. There is, however, no such obvious error in the reserved seats order.
For its part, the PML-N contends that the PTI was not a party, and that it cannot get what it did not plead. The glaring flaw with this position is that it assumes constitutional interpretation takes place in a vacuum.
Courts examine the facts before them and have the power to do complete justice under Article 187 (Issue and Execution of Processes of Supreme Court). The court is not shackled by pleadings. Eleven judges (including the chief justice) found that the bat symbol ruling was misinterpreted by the ECP. Once the electoral body’s grave mistakes were accepted, the court had a duty to rectify those mistakes. It could not close its eyes to the election commission’s illegal actions, and effectively validate an unlawful interpretation of its own decision. PTI candidates took shelter behind the SIC due to the ECP’s order declaring them as independents. It would be neither lawful nor just to punish the PTI (and its voters) for the ECP’s wrong.
The PML-N then claims that the SC has re-written the Constitution. It does not clearly specify what this “re-writing” is — simply because there is no re-writing. In granting the PTI its reserved seats, the apex court has followed the text and spirit of the Constitution. It is the plain text that commands a “proportional representation” system. It is the plain text that bars a political party from getting reserved seats in excess of their proportional strength of general seats. The Constitution must be interpreted harmoniously, and in a manner that is consistent with fundamental rights. This is what the SC has done.
The interpretation being advanced by the ECP, and the ruling alliance makes a mockery of the constitutional scheme, allowing political parties to get reserved seats far greater than their proportional strength of general seats. This disrupts the electoral mandate determined by the voters, and court orders cannot upset election results.
A two-thirds majority is obtained from the electorate; it cannot indirectly be obtained from the courts. Any review of this decision is unlikely to succeed.
Threatening party bans
Mere days after the reserved seats verdict, the government now seeks to suppress the people’s will by threatening a ban. Article 17(2) of the Constitution is clear: the grounds for dissolving a political party are limited to situations where it is operating in a manner that is “prejudicial to the sovereignty and integrity” of Pakistan.
If the government makes such a declaration, it is the SC that has the final say. Any government declaration in and of itself will have no immediate consequences for the PTI until and unless it is endorsed by the SC. If the government declaration is upheld by the SC, then members of the political party are disqualified for the remaining term of Parliament (Section 213, Elections Act 2017).
The government’s grounds for banning the PTI are patently absurd.
It first relies on the foreign-funding case in which the ECP’s finding is limited to stating that the PTI received funds from “prohibited sources”. These include funds from foreign nationals and companies. There is no finding that the PTI is a “foreign-aided party”, nor does the ECP have the authority to give such a finding. The penalty in law for receiving prohibited funds is at most: confiscation of funds.
In the Hanif Abbasi case (PLD 2018 SC 219), the Supreme Court has already ruled: “Though the phrase ‘foreign-aided political party’ does not feature in Article 17(2) of the Constitution, however … a foreign aided-political party is inevitably prejudicial to the sovereignty and integrity of Pakistan. The idea behind the prohibition of a foreign-aided political party is to safeguard Pakistan from foreign elements to secure the independence of its political parties and protect them from foreign vested interests and influence.”
For the dissolution of a political party on these grounds, there is a higher requirement that involves questions such as:
- whether there is evidence that the political party was formed at the behest of any foreign government or foreign political party
- whether the political party receives aid from any foreign government or foreign political party
The term ‘foreign-aided’ political party is to be read together with Article 17(2) which mandates that dissolution is only justified where a political party is operating in a manner prejudicial to the integrity and sovereignty of Pakistan.
In the Hanif Abbasi case, the apex court also found: “The preamble to the Constitution makes it clear that Pakistan is a democratic state where its citizens shall have freedom of association and the right to choose their representatives through whom the state shall exercise its powers and authority. Political parties are an essential pillar of true and effective democracies … it is essential that political parties which form the backbone of a real democratic process should be independent of any kind of foreign influence, affiliation or control, so that it should serve the state and the people, not on the basis of the dictates of vested interests and foreign element.”
Receiving funds from foreign nationals or companies does not satisfy the threshold of being declared a foreign-aided party. In the current scenario, a case which, at its highest, would merit a confiscation of funds is being made the foundation to ban a party.
The government then claims that a ban on the PTI is justified on account of the “cipher episode”. Here too, the state was wholly unsuccessful in convincing the Islamabad High Court to uphold Imran Khan and Shah Mahmood Qureshi’s convictions in the cipher case — both Imran and Qureshi were acquitted and their convictions thrown out — yet it now wants to use this to ban the entire party.
The ECP’s ruling in the prohibited funding case and the cipher saga can be traced back to 2022. If these events were really a threat to Pakistan’s integrity and sovereignty, why was the government sitting on them? And why has the urgency only emerged after the PTI’s strength has been revived in the assemblies?
Examples are being given as to how political parties have been banned throughout our chequered history. Essentially, we are told that since we have made mistakes in the past, we should continue repeating them.
Members of the ruling alliance, particularly the PPP, must now take a stronger position. The PPP was on the receiving end of military dictator Ziaul Haq’s onslaught for years: scores of political prisoners, oppressive martial law regulations, ban on political activity. Historian Stanley Wolpert writes: “Zia knew that he must destroy Zulfikar Ali Bhutto ‘utterly’. No easier way would be vouchsafed to him now. Zia was not a man to flinch from hardship, or to hesitate about destroying anyone ‘utterly’, once he knew the word — guilty — was proved against him.”
If victims of the past remain complicit with the oppressive forces of today, there can be no progress. The government’s narrative is dictatorial, and similar to rhetoric adopted under the cruelest martial law eras. “PTI and Pakistan cannot co-exist,” said PML-N information minister Attaullah Tarar. This ‘us vs them’ rhetoric is destructive, and the dangers should be obvious to all.
Democracies depend on inclusion, not divisive rhetoric, labelling opponents as traitors.
Bogus treason allegations
The government has also announced that it would invoke Article 6 on the basis that the National Assembly was dissolved while a no-confidence motion was pending. In April 2022, the deputy speaker’s ruling was declared unconstitutional, the president’s dissolution was reversed, and the National Assembly was restored. There was, however, no “treason”. The SC’s decision restoring the Assembly (authored by former CJP Bandial) contains no mention of treason.
As held by the special court in the former military ruler retired Gen Pervez Musharraf’s case, treason is where the Constitution has been abrogated, subverted, suspended or held in abeyance. For example, the proclamation of emergency, dated 3 November 2007, read: “Now, therefore, in pursuance of the deliberation and decisions of the said meetings, I, General Pervez Musharraf, Chief of the Army Staff, proclaim emergency throughout Pakistan … I, hereby order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.” The SC too recently held that Musharraf’s conviction for treason subsists.
In comparison, to use the words of Farhatullah Babar, charging PTI leaders with treason is rubbish. Again, the government’s realisation that this was treason has awakened right after the SC’s verdict in the reserved seats case. The Bandial court’s ruling restoring the National Assembly was implemented, the assembly was restored, the no-confidence motion succeeded, and an elected prime minister was sent home. There was no “subversion” or “abrogation” of the Constitution.
What next?
A nation where the courts dominate the daily news bulletin is a clear sign that the system is failing, and something is terribly wrong.
For now, even if the government declares that the PTI should be dissolved, it will not impact its legal status as a political party. Article 212(3) of the Elections Act 2017 makes clear that, “where the Supreme Court upholds the declaration made against the political party … such political party shall stand dissolved forthwith.” Thus, it is only when the SC upholds a declaration that the political party stands dissolved. The constitutional scheme simply gives the government the power to refer the matter to the court, the final decision is to be taken by the SC itself. Until then, the PTI’s status as party remains unaffected.
Meanwhile, the ECP too cannot make the implementation of the reserved seats verdict conditional upon its review, or any impending party ban for that matter.
The majority order finds that 39 returned candidates who showed “PTI” in their nomination form, party affiliation certificate, or statutory declaration are candidates of the PTI. The remaining 41 returned candidates have been given 15 working days to file their party affiliation. On this basis, the ECP has been ordered to publish a list of returned candidates, and allocate reserved seats to the PTI in accordance with its proportional strength of general seats.
The verdict has also left it open for the ECP or PTI to approach the SC to give effect to the reserved seats verdict. If the ECP attempts to obstruct or delay compliance, the PTI has the right to make an application to the eight judges constituting the majority in chambers for appropriate directions. Any non-compliance with this decision is contempt.