Section 11B of the ATA allows the Federal Government to proscribe “organisations” which are “concerned in terrorism.” The term “concerned in terrorism” is further defined broadly in Section 11A of the ATA as including patronising and assisting “in the incitement of hatred and contempt on religious, sectarian or ethnic lines that stir up disorder.”
Notwithstanding the broad definition of “concerned in terrorism”, it will be difficult for the government to argue that the TLP is a terrorist organisation, the party’s increased tendency to disrupt public life notwithstanding. The government’s recourse to the ATA instead seems driven by the desire to avoid Article 17 (2) of the Constitution which provides that “where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan,” such declaration must be referred within fifteen days to the Supreme Court for adjudication.
Article 17(2) is the result of the First Amendment to the Constitution. Prior to the amendment, there was no constitutional provision for a reference to the Supreme Court, though the same was provided by the Political Parties Act, 1962. As noted by the Supreme Court in Islamic Republic of Pakistan v. Abdul Wali Khan, PLD 1976 SC 57, the purpose of the amendment was to provide the highest possible level of protection to political parties.
Given the foregoing, the government’s attempt to avoid direct scrutiny before the Supreme Court is likely to fail. In the earlier case of Maududi v. Government of Pakistan, PLD 1964 SC 673, the Ayub Khan government had attempted to shut down the Jamaat e Islami through an order passed under a 1908 law which allowed the provincial government to crackdown on unlawful associations. A majority of the Supreme Court held that if parties could be de facto banned through a mere executive order, that would negate the protection available then under the Political Parties Act, 1962 (and now mandated by Article 17(2)).
The order banning the JIP was thus set aside. Self-evidently, this reasoning would directly apply to the banning of the TLP under the ATA given that the Supreme Court has already held in Wali Khan’s case that the object of Article 17(2) was to provide an even higher degree of protection to political parties than that earlier available under the Political Parties Act, 1962.
Leaving aside the legal issues, the fundamental problem with the government’s current approach is that it is trying to tackle a political problem through the sledgehammer of an executive decree. This is not new. Many governments in Pakistan, military, quasi-military, civilian and now the hybrid one, have tried to cut the Gordian knot when faced with a difficult situation.
But this is a slippery slope. For instance, what is it the TLP has done that PTI did not do or try to do during its protests and a very long sit-in? That includes beating up policemen, raiding government buildings on Constitution Avenue, inciting security forces personnel to disobey orders, calling for civil disobedience and non-payment of taxes et cetera.
Further, while some extraordinary situations will require executive action (decrees), recourse to dealing with agitation outside of the confines of constitutional provisions and using law in ways that attempt to avoid judicial scrutiny sets bad precedents. Last week, in this space, I mentioned the use of ordinances and how a provision meant for extraordinary situations has been repeatedly abused by governments, including this one, its rhetoric about being different notwithstanding.
What will be the limiting principle if governments decide to start banning political parties using Section 11 A or B of ATA 1997?
This is not to say that the government should abdicate its responsibility when a political party or any organisation decides to shut down the country or act in ways that are prejudicial to good order. But it makes no sense to move from distributing money to TLP cadres in instance A and banning them under ATA 1997 in instance B.
These erratic pendulum swings are born of political machinations, engineering and expediencies. Until recently, TLP was an unknown entity. Sure, multiple Barelvi organisations have always been active with reference to blasphemy (and its myriad variations and extended definitions) and making life hell for the Ahmadiyya community even after the Second Amendment excommunicated them. That outrage we have lived with for a long time. But TLP as an organised political entity is a recent development and created, nourished and launched by the country’s premier intelligence agency to cut into and erode the PMLN vote bank.
They were test-launched during the final months of the PML-N government and the government was forced into signing a humiliating surrender document. But as happens with such entities, they acquire a life of their own even as the puppeteers continue to think that they can pull the strings as and when they want.
The most problematic aspect of the TLP is the reference the party uses to galvanise support and stay relevant: respect for the Prophet (PBUH). This is the headwater from where all else flows. This is also what distinguishes TLP from Taliban groups and makes it more difficult to tackle. Who are the TLP supporters? And this is not strictly with reference to its vote (though its vote has also been increasing) but the deeply-ingrained sanctity of the Prophet (PBUH). Put another way, it appeals to average Joes and Janes. This is not about trained terrorists of TTP and its affiliates but a large cross-section of people ranging from illiterate to semi-literate to literate, people who work 8 to 2 or 9 to 5.
Again, this is not to say that the government should allow TLP to dictate foreign policy. That simply cannot happen. There’s also the issue of the scholarly interpretation of blasphemy and other issues on which any number of scholars will oppose TLP’s positions. The TLP itself cannot be entirely called honest because it cashes in on what Muslims hold so dear and does so in ways that are deeply objectionable.
But, that aside, before the government ties itself into the ATA knot, it needs to (a) work out a viable strategy and (b) it should say peccavi and pledge not to ever use such entities for political purposes. As noted by one wag, “agar paalna nahin aata, tau paida kyun kartay ho? (If you don’t know how to rear them, why brith them.)”
The writer is a former News Editor of The Friday Times. He is grateful to Feisal Naqvi, an eminent lawyer, for helping with and clarifying the legal side of the argument. @ejazhaider