The dissolution of the National Awami Party (NAP) in 1975 followed months of degradation of the party and its leadership in the mass media. This was a party in power, in coalition with Maulana Mufti Mehmud’s Jamiat-e-Ulema Islam (JUI), in two of the provinces of the country and had participated with zeal in the passage of the constitution in 1973.
The public in the Punjabi heartland, an area traditionally planted thick with the weeds of conspiracy, was made to believe that following the fall of the eastern wing foreign-aided nationalists among the Baloch and Pakhtuns were set to make a move. The judge, who as law secretary had prepared the reference against NAP, then proceeded to adorn the bench of the Supreme Court that was to hear the reference. Wali Khan, the leader of NAP, objected. His request for a reconstituted bench was refused. He walked out of the courtroom. Dissolution of his party followed. While a rump of the defunct NAP was to re-emerge as the Awami National Party (ANP) the damage done was permanent. The gash created in the body politic let in the religio-fanaticism that was nurtured through the latter half of the 1970s and the 80s. The insurgent disquiet that raised its head in Balochistan was met with a cycle of violence that continues.
History is not set to repeat itself. The PTI is not NAP. It is a party cut from the same genetic material as the PML-N. The two parties occupy much of the same geographical and psychological territory. Both carry the colours of Pakistani nationalism. JUI and ANP joining the dissolution chorus is historic amnesia brought on by that most irresistible of passions: opportunism.
The constitutional order of the Islamic Republic today stands on foundations covered by the stains of the past. Moral hubris in the service of power has scripted much that provides grist to the opportunistic. Some legalese is unavoidable, and essential, if sense is to be made of where we are headed. Consider.
Article 17(1) of the constitution declares the formation of a political party to be a fundamental right of the citizens of Pakistan. Article 17(2) of the constitution provides a solitary ground for the dissolution of a political party. A party established for the purpose of damaging, or actually working against, the integrity or sovereignty of the country may be declared by the federal government to be such a party. This declaration is to be placed before the Supreme Court within fifteen days of being made. If the Supreme Court upholds the declaration, the political party concerned stands dissolved. Members of parliament, including the provincial assemblies, belonging to such party stand de-seated.
General Musharraf issued the Political Parties Order in 2002 when the constitutional order stood suspended following the coup of 1999. Political parties were seen as irritants to be subdued into obedience. The general’s order purported to add a ground for the dissolution of a political party, beyond what the constitution stipulates. A political party obtaining any aid, financial or otherwise, from any foreign government or foreign political party or any portion of its funds from foreign nationals is to be considered a foreign-aided political party. Section 15 of the Order of 2002 states that such a party is to be dissolved following a declaration by the federal government to this effect and an order of the supreme court upholding the declaration. No threshold for the receipt of funds for dissolving a political party is provided.
Another provision of the general’s order of 2002 describes funds that a political party is prohibited from receiving. The category of prohibited funds covers contributions made, directly or indirectly, by any foreign government, multi-national or domestically incorporated public or private company, firm, trade or professional association. Only the funds expressly described as prohibited funds, if received by a political party, are liable to be confiscated.
Section 6(3) states that a party may accept contributions and donations only from individuals. This section appears to make no distinction between funds contributed by individuals who are nationals and those who are not. Funds from both categories of individuals appear to fall outside the ambit of prohibited funds. This creates an apparent inconsistency. While funds from individuals who are not nationals are not prohibited funds in terms of Section 6(3), the receipt of such funds would make a political party a ‘foreign aided political party’ liable to dissolution in terms of Section 15 of the order of 2002. The cause of the apparent inconsistency can safely be put down as poor drafting, a malaise that afflicts most legislative drafting in Pakistan.
The lawyer’s essential craft is to identify inconsistencies in the law and provide interpretations that make the best sense of disparate provisions when read together. The status of the constitution as the supreme law must be upheld and all interpretations of laws subordinate to the constitution must be made so as to make these laws conform to the intent of the constitution. Where such conforming interpretations are not possible, the subordinate law must be declared unconstitutional and void.
The Election Commission of Pakistan was called upon to interpret the provisions of the Political Parties Order of 2002 that deal with prohibited funds and a foreign aided political party in the light of Article 17 of the constitution. In particular, the language of Section 15 of the Order of 2002 that appears to make the mere receipt of funds from non-nationals to be a wrong that must be visited with dissolution had to be harmonized with the fact that Article 17(2) only allows dissolution of a political party if it is found to be working against the sovereignty or integrity of the country. As it turns out, the ECP made no attempt to take Article 17(2) of the constitution into account. This is abdication of duty.
An obvious harmonious reading of Section 15 of the Order of 2002 with Article 17(2) of the constitution would be to hold that for a party to be dissolved on account of having received funds from foreign nationals there must be evidence that on account of such receipts the party concerned had acted in a manner prejudicial to the sovereignty or integrity of the country. The mere receipt of foreign funds is not a constitutional wrong. The consequence of not harmonizing Section 15 of the Order of 2002 would be to render it void, being in excess of the limit imposed by the constitution.
Section 15 of the Order of 2002 provides for dissolution of a political party only when funds are shown to have been received from foreign governments, political parties or foreign individuals. Section 6(3) requires that funds received from multinational or domestic companies be treated as prohibited funds and confiscated. The ECP has taken the word ‘multinationals’ to include all foreign companies. While the Order of 2002 makes a clear distinction between foreign nationals and multinationals, with only funds from the latter liable to confiscation, the ECP has effaced the distinction. The PTI is said to have received funds from foreign individuals as well as foreign companies but not from foreign governments or foreign political parties. All such funds have been held liable to confiscation.
A large part of the overseas funds, totaling about 80 crore rupees, received by the PTI through bank transfers during the years 2008 to 2013 came through fund-raising vehicles set up by the PTI itself, such as the two PTI LLCs established in the United States, PTI Canada Corporation and PTI UK. The ECP has considered funds raised by these entities, regardless of the identity of the ultimate donors, to be funds provided by foreign companies that are to be confiscated. Over the period 2008 to 2013 more than half of the foreign funds received by the PTI have come through these vehicles. Are these funds liable to confiscation? Are the PTI funding vehicles to be treated as foreign multinationals or alter egos of the PTI itself? Lawyers relish these questions.
There are other flows, including from the now disgraced but then valorized Arif Naqvi’s Wootton Cricket Club totaling over two million dollars, that might have been collected for charitable and not political purposes in the UK. Some of the accounts through which funds have come to the PTI are claimed by the ECP to have been concealed by the party while issuing certificates of complete disclosure signed by the PTI head Mr Imran Khan. These are serious enough matters even if they do not provide a basis for dissolving the PTI.
Mr Khan must hope that the standard applied to declare Mian Nawaz Sharif not sadiq, in a petition brought to the Supreme Court by Mr Khan himself, and hence ineligible for life for seeking membership of parliament is not applied to him. Mian Nawaz was declared ineligible not because at the time of the declaration he stood convicted of some corrupt practice. He was not declared ineligible on account of holding an iqama or a residence visa of the United Arab Emirates. He was told that a nominal salary not received as chairman of the board of a single member company set up by his son in the UAE constituted a receivable. Since receivables are accounting assets and since he had not declared this ‘asset’ in his electoral wealth declaration he was not sadiq.
The writer is an advocate of the Supreme Court of Pakistan. He tweets salmanAraja and can be reached at: salmanr2002hotmail.com