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The federal government's decision to initiate the process of banning Pakistan Tehreek-e-Insaf (PTI) has invited widespread criticism from various corners including the legal fraternity. Many believe that it would be impossible for the government to ban a political party which enjoys such popularity and that such a move would require the 'final say' from the Supreme Court where a majority of judges are unlikely to toe the government's line given their history of issuing pro-PTI rulings as reflected in the recent reserved seats case and bail for former prime minister Imran Khan in the cipher case.
Federal Minister for Information Attaullah Tarrar on Monday addressed a press conference where he announced that in view of the foreign funding case, May 9 riots, and the cipher episode as well as the resolution passed in the US Congress, the federal government believes credible evidence is present whereby the PTI could be banned. Moreover, he announced that the government would deliberate and could initiate the process of sending a reference to the Supreme Court against former preisdent Arif Alvi, former premier Imran Khan and former National Assembly Deputy Speaker Qasim Suri under Article 6 for treason.
Legal experts The Friday Times approached say cases like the May 9 riots, the resolution passed in the US Parliament, and the foreign funding case provide considerable impetus to ban the party if there is sufficient evidence as the government claims because all these matters directly related to the integrity and sovereignty of Pakistan. However, they have warned that any such move would have far-reaching consequences for Pakistan's political landscape. They added that if a party is banned or dissolved, then its members in the national or provincial assemblies (who have recently been recognised as such by the Supreme Court) shall stand disqualified for the remaining term of the national and provincial assemblies.
One section of legal experts say the government's plan to unilaterally decide the fate of PTI is either a pressure tactic or an attempt to prevent the PTI from becoming the single-largest party in the national assembly as the majority of the full court bench has already ruled that the party may seek further clarification of its judgment regarding reserved seats.
Senior lawyer and constitutional expert Advocate Tariq Mehmood Khokhar, in an exclusive talk with The Friday Times stated that under Article 17(2) of the Constitution, read with Section 212 of the Election Act, 2017, the federal government can make a declaration in the official Gazette, regarding the legal status of a political party if it is a foreign-aided political party or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism. Within 15 days of making such a declaration, the government is required to refer the matter to the Supreme Court, he said, further adding that if the top court upholds the declaration (on the basis of evidence), such political party stands dissolved forthwith followed by other effects of dissolution.
Advocate Khokhar believes that until and unless the Supreme Court upholds the government's declaration, there will be no significant legal consequences, no loss for the PTI, and no gain for the federal and provincial governments, unrepresentative legislatures, and dysfunctional institutions under the sway of alleged malignant players.
"In simple words, no constitutional amendment package," Advocate Khokhar stated categorically. He further added that it is beyond the realm of possibility that the Supreme Court will uphold such an obviously mala fide declaration.
"The root cause of it all may well be ignorance, stupidity or fascism. Such course of action may constitute subversion of the constitution, rule of law and democracy by other means," added Advocate Khokhar, who long served as a law officer defending the government in various high profile and sensitive cases.
He further maintained that there ought not to be any surprise. "Most people were expecting such a 'legal astonisher' as a reaction to the Supreme Court's decision in the reserved seats case," he stated, adding that the government is doing all it can to morally lower itself while trying to hit back at the PTI.
Another constitutionalist and former Senate chairman, Mian Raza Rabbani, said that the government's talk of banning a major political party was against all norms of democracy. He advised the government to refrain from taking such a step.
"The country is already facing grave economic and political instability, such a step will add political chaos and bog down the economy," he warned, adding, "This economic and political chaos can be a recipe for destabilising the entire democratic system, which, if it happens, will have a profound effect on the federation, given the already sharp internal fault lines," said Rabbani.
"The government should concentrate on curbing the increasing trends of internal terrorism, as a consequence of which members of the armed forces, security forces, police and civilians are being targeted."
While conceding that there was a precedence of banning political parties in Pakistan, he reminded that the consequences of such a step were not always those desired.
"The step of banning a political party in Pakistan's history has always been unsuccessful and been thrown in the dustbin of history," Rabbani added.
PTI rejects govt's move
PTI Central Joint Secretary Momina Basit, who is a potential candidate to secure reserved seats from the PTI, told The Friday Times that the government's decision to ban the party seems fanciful and is not based on any legal rationale or fact-based decision-making.
"In fact, the government indirectly tries to rebuke the superior Judiciary and strives to humiliate the judicial system, which gave a very positive verdict in light of the Constitution and election laws," Basit said while referring to the reserved seats verdict.
"It (Supreme Court) protected fundamental rights, and the game played by the ECP has been unmasked with all the follies committed," she said, adding, "We, the citizens of Pakistan, shall support and shall stand with the superior judiciary, Constitution and the law."
It is pertinent to mention that during the recent hearing for bail in the cipher case, the top court had observed that there were no reasonable grounds for believing that the petitioners, including Imran Khan and Shah Mehmood Qureshi, had committed an offence punishable under clause (b) of Section 5(3) of the Official Secrets Act.
Later in June this year, the Islamabad High Court (IHC) acquitted former premier Imran Khan and former foreign minsiter Shah Mehmood Qureshi in the cipher case.
Legal experts wondered if the courts had acquitted Imran Khan in the cipher case. If so, what further incriminating evidence has surfaced that the government is using to base its decision to ban the PTI?
However, they note that the May 9 riots case and the foreign funding case could still play a critical role in sealing the fate of Imran Khan and his party, as both cases seem to be a last resort for the government to eliminate the party from Pakistan's political chessboard.
The legal process to ban PTI
It is pertinent to mention here that former chief justice Saqib Nisar's judgment in Imran Khan's disqualification case was deliberately discussed in the foreign funding issue and had ruled that the top court can take cognizance if the federal government files a reference. The judgment had observed that 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 based on the dictates of vested interests and foreign elements but in the national interest.
"It is for the federal government to determine, on the basis of the material before it and by application of proper mind and by meeting the criteria of the rule of 'satisfaction' as enunciated by the superior court, to determine and declare if a political party is a foreign-aided political party in terms of Article 2(c) of the PPO and action is warranted under Article 15(1) thereof," the top court had observed.
It added that the federal government and the federal cabinet may make the requisite declaration, which shall, pursuant to Article 15(2) of the PPO, be referred to the Supreme Court of Pakistan within 15 days of such declaration for adjudicating its validity.
"After providing an opportunity of hearing to the concerned political party and on the basis of allegation that proved or disproved before this court, a decision shall be given by this court. In case the declaration of the Federal Government is upheld by this court, then according to Article 15(3) of the PPO, inter alia, a foreign-aided political party shall stand dissolved forthwith."
"This is the clear mandate and command of the law, without following which no political party can be declared to be a foreign-aided political party."