Monday December 06, 2021

When reference is filed…: SC, not govt, empowered to decide TLP’s fate

April 18, 2021

ISLAMABAD: The Supreme Court and not the federal government is the final authority that will decide the fate of the Tehreek-e-Labbaik Pakistan (TLP) after a reference is submitted to the court by the government.

When contacted, prominent lawyer Kashif Malik told The News that empowering the Supreme Court to conclusively decide a reference under Article 17(2) of the Constitution gives protection to the political parties so that they would not stand dissolved on a mere executive order but only after the judgment of the highest judicial forum.

The judgments of the apex court on previous such references have been varied. In 1964, the Supreme Court had set aside [PLD 1964 SC 673] the ban imposed on the Jamaat-e-Islami by President Ayub Khan. Twelve years later in 1976, the apex court had upheld [PLD 1976 SC 57] the ban on the National Awami Party (NAP) of Khan Abdul Wali Khan ordered by Prime Minister Zulfikar Ali Bhutto.

A third case cited by Kashif Malik related to the Muttahida Qaumi Movement (MQM). While hearing a famous suo motu case regarding the law and order situation in Karachi in 2011, a five-member bench had said that as far as the banning of the MQM is concerned, “on the basis of the material and the other information placed before us as well as the statement of former home minister Dr Zulfiqar Mirza… it may be observed subject to all just exceptions that the instant pro bono publico proceedings, which are essentially inquisitorial in nature, cannot be allowed to assume an adversarial character.”

Clause 2 of Article 17 is being invoked along with other legal provisions to issue a declaration against the proscribed TLP, which will be submitted to the Supreme Court as a reference. It says “every citizen, not being in the service of Pakistan, will have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law will provide 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, the federal government will, within 15 days of such declaration, refer the matter to the Supreme Court whose decision on such reference will be final.”

The Elections Act, 2017 also deals with the dissolution of political parties, the effects of such an action and other related matters. Section 213 of the ACT says where a political party is dissolved, any member of it if he is a member of parliament, a provincial assembly or a local government, will be disqualified. The Election Commission of Pakistan (ECP) will publish the names of the members of a political party becoming disqualified on its dissolution.

Section 212 reads: “Where the federal government is satisfied on the basis of a reference from the ECP or information received from any other source that a political party is foreign-aided or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism, it will, by a notification, make such declaration. Within 15 days of making a declaration, it will refer the matter to the Supreme Court. Where the apex court upholds such declaration, such a political party will stand dissolved forthwith.”

A foreign-aided political party means an entity which has been formed or organised at the bidding of any foreign government or political party of a foreign country or is “affiliated to or associated with any foreign government or political party of a foreign country; or receives any aid, financial or otherwise, from any foreign government or political party of a foreign country, or any portion of its funds from foreign nationals.”

Article 17(2) has been rarely applied by any previous government. Its previous invocation was against old, well known political parties, which were strongly opposed to the then governments.

It is now being used against the TLP, that emerged just a few years ago and has successfully paralysed Pakistan through its violence at least thrice times since then.

Not only that, it managed to secure more than two million votes in the 2018 general elections, which is many more than those of a number of political parties that have been in the field for decades.