The dissolution debate

The Election Commission of Pakistan (ECP) in its recent ruling in the PTI ‘prohibited funding case’ said that the PTI had received prohibited funding from foreigners. Thereafter, the federal government announced that it would send a declaration to the Supreme Court with respect to dissolution of the PTI since it had been proved that it was a foreign funded party. Consequently, one crucial issue has surfaced: can the PTI be dissolved on the basis of the aforementioned finding of the ECP?

The contention of the government that the PTI can be dissolved seems legally untenable. Such an argument doesn’t fit well with the constitutional rationale of dissolving a political party as provided in Article 17(2) of the constitution, which states that any party formed or operating in a manner prejudicial to the sovereignty or integrity of Pakistan can be dissolved by the federal government subject to confirmation by the Supreme Court. Thus, a party can be dissolved only if the formation and operation of the party is prejudicial to the integrity or sovereignty of Pakistan.

Moreover, the sub-constitutional basis (statutory basis) for dissolution of a political party is provided in Article 15 of the Political Parties Order (PPO), 2002 and Section 212 of the Election Act, 2017. Both enactments mention two more requirements for dissolution of a political party: the political party is foreign aided or involved in terrorism.

However, it needs to be noted that these additional conditions stipulated in these sub-constitutional legislations on which the government is relying cannot take precedence over the dictates of the constitution which is the supreme law of the land. Rules of interpretation demand a harmonious technique, otherwise Article 15 of the PPO or Section 212 of the Election Act are ultra vires the constitution and liable to be struck down. So the PTI can only be dissolved on the basis of foreign funding if it can be proved that such foreign funding is causing it to operate against the integrity and sovereignty of Pakistan. The mere fact that it has received funds from foreign nationals won’t pass the constitutional litmus test of dissolution as laid down in Article 17(2).

The above interpretation also finds support in jurisprudence settled by the apex court. The Supreme Court in the Hanif Abbasi Case (2018) held that the rationale behind barring political parties from having anything to do with foreign countries was to ensure complete insulation from foreign elements in order to preserve the sovereignty and integrity of the country. Likewise, in the Benazir Bhutto Case (1988), the Supreme Court held that the Political Parties Act 1962 being an ordinary law could not prevail over Article 17(2) of the constitution. The court also held that activities of a foreign-aided party prejudicial to the sovereignty or integrity of Pakistan would be hit by Article 17(2).

Interestingly, so far only one political party has been dissolved by the Supreme Court. In 1975, the Supreme Court approved the then government’s decision of dissolving the National Awami Party (NAP). The reasoning behind affirming the dissolution was that NAP operated in a manner prejudicial to the sovereignty and integrity of Pakistan as it was consistently attempting to create doubts about the ideology of Pakistan. The court also held that NAP was preparing grounds for secession of (then) NWFP and Balochistan. The court also held that NAP had subverted the constitution and perpetrated acts of terrorism with support of a foreign power.

In developed democracies, constitutional mechanisms for banning political parties are used in exceptional circumstances. Unlike our vague integrity and sovereignty standards, this is only allowed where there is plausible, sufficient and cogent evidence that the risk to democracy and constitutional order is imminent and the ban is justified to protect democracy. In 2017, Germany’s federal court rejected an application by 16 German states to ban the National Democratic Party; this, despite its neo-Nazi philosophy. For dissolution of a political party, the court held that there must be specific, concrete and weighty indicators suggesting the political party could achieve its anti-democratic objectives.

Although legally permissible, academics and political scientists have always opposed the idea of banning political parties. Prohibitions often prove futile and pointless. For instance, banning NAP on the basis of a vague and subjective interpretation of ‘sovereignty’ and ‘integrity’ didn’t work; its vote bank remained intact. In fact, it revived under a new name in 1975 and was one of the parties constituting the Pakistan National Alliance (PNA). Thus, a technical knockout of political parties is always counterproductive; the representation may temporarily disappear but the philosophy, ideology and support remain, and later re-emerge with more potency. It is pertinent to mention that the people are the ultimate guardians of sovereignty, integrity, democracy and constitutional order. Political parties meet an organic death only; the public is the final judge of their fate.

Even otherwise, constitutions cannot operate in a vacuum. The operation of a constitutional system is dependent on the presence of popular political forces. If a party with popular support is barred from sitting in the legislature, the ultimate victims are the people since a political party is a connecting link between people and parliament. Here it is apt to quote Lord Denning: “If men are ever to be able to break the bonds of oppression, they must be free to meet and discuss their grievances and to work out in unison a plan of action to set things right.”

The writer is a Lahore-based advocate of the high court.