The dissolution of the National Awami Party (NAP) in 1975 followed months of downgrading the party and its leadership in the media. It was a ruling party, in coalition with the Jamiat-e-Ulema Islam (JUI) of Maulana Mufti Mehmud, in two of the country’s provinces and had zealously participated in the vote on the constitution in 1973.
Audiences in the heartland of Punjabi, an area traditionally planted with conspiracy weeds, were led to believe that after the fall of the eastern wing, the foreign-aided nationalists among the Baluchis and Pakhtuns were on the verge of to move. The judge, who as legal secretary had prepared the reference against NAP, then graced the bench of the Supreme Court that was to hear the reference. Wali Khan, the leader of the NAP, opposed it. His request for a reconstituted bench was refused. He walked out of the courtroom. The dissolution of his party followed. While a rump of the defunct NAP was to reappear as the Awami National Party (ANP), the damage done was permanent. The gash created in the body politic let in the religious fanaticism that nurtured during the second half of the 1970s and 1980s. an ongoing cycle of violence.
History is not meant to repeat itself. The TNP is not NAP. It is a part cut from the same genetic material as the PML-N. Both sides occupy much of the same geographical and psychological territory. Both wear the colors of Pakistani nationalism. JUI and ANP joining the chorus of dissolution is a historical amnesia provoked by the most irresistible of passions: opportunism.
The constitutional order of the Islamic Republic today rests on foundations covered by the stains of the past. Moral pride in the service of power has scripted a lot of things that give water to opportunists. Legalese is inevitable and essential if we want to understand where we are going. Consider.
Article 17(1) of the constitution declares that the formation of a political party is a basic right of Pakistani citizens. Article 17(2) of the Constitution provides only one ground for the dissolution of a political party. A party created for the purpose of infringing or harming the integrity or sovereignty of the country may be declared by the federal government as such. This declaration must be filed with the Supreme Court within fifteen days of its pronouncement. If the Supreme Court confirms the declaration, the political party concerned is dissolved. The deputies, including the provincial assemblies, belonging to this party are removed from office.
General Musharraf issued the Political Parties Ordinance in 2002 when the constitutional order was suspended following the 1999 coup. Political parties were seen as irritants to be subjected to obedience. The general’s order purported to add grounds for the dissolution of a political party, beyond what the constitution stipulates. A political party that obtains assistance, financial or otherwise, from a foreign government or a foreign political party or part of its funds from foreign nationals shall be considered a political party receiving foreign assistance. Section 15 of the 2002 order states that such a party must be dissolved following a declaration by the federal government to that effect and an order by the Supreme Court confirming the declaration. There is no threshold for receiving funds for the dissolution of a political party.
Another provision of the General Order 2002 describes the funds which a political party is prohibited from receiving. The category of prohibited funds covers contributions made, directly or indirectly, by a foreign government, multinational or national, public or private corporation, corporation, trade or professional association. Only funds expressly designated as prohibited funds, if received by a political party, are subject to confiscation.
Section 6(3) states that a party may only accept contributions and donations 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 scope of prohibited funds. This creates an apparent inconsistency. While funds from persons who are not nationals are not prohibited funds under Article 6(3), the receipt of such funds would make a political party a “supported political party Foreign Affairs” subject to dissolution under Section 15 of the Ordinance, 2002. The cause of the apparent inconsistency can safely be traced to poor drafting, a malaise that afflicts most legislative drafters in Pakistan.
The essential job of the lawyer 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 maintained and all interpretations of laws subordinate to the constitution must be made in such a way as to bring those laws into conformity with the intent of the constitution. Where such consistent interpretations are not possible, the subordinate law must be declared unconstitutional and void.
The Election Commission of Pakistan has been called upon to interpret the provisions of the Political Parties Ordinance 2002 which deal with prohibited funds and a political party receiving foreign aid in light of Article 17 of the constitution . In particular, the wording of section 15 of the 2002 ordinance, which appears to make the mere receipt of funds from non-nationals an offense to be sanctioned by dissolution, had to be harmonized with the fact that the article 17, paragraph 2, authorizes the dissolution of a political party if it proves to be against the sovereignty or the integrity of the country. It turns out that the ECP made no attempt to heed article 17(2) of the constitution. It is the abdication of duty.
An obvious harmonious reading of article 15 of the 2002 ordinance with article 17, paragraph 2, of the constitution would be to consider that for a party to be dissolved for having received funds from foreign nationals, it must be proved that by reason of such receipts the party concerned acted in a manner detrimental to the sovereignty or integrity of the country. The mere receipt of foreign funds is not a constitutional fault. The consequence of not harmonizing article 15 of the 2002 ordinance would be to make it obsolete, exceeding the limit imposed by the constitution.
Section 15 of the 2002 Ordinance provides for the dissolution of a political party only when it is shown that funds have been received from foreign governments, political parties or foreign individuals. Article 6(3) requires that funds received from multinational or national enterprises be treated as prohibited funds and confiscated. The ECP took the word “multinationals” to include all foreign companies. While the 2002 ordinance makes a clear distinction between foreign nationals and multinational corporations, only the funds of the latter can be confiscated, the ECP erased the distinction. The PTI reportedly received funding from foreign individuals as well as foreign companies, but not from foreign governments or foreign political parties. All of these funds were deemed liable to confiscation.
A large portion of the foreign funds, totaling around Rs 80 crore, received by the PTI through bank transfers during the years 2008 to 2013 came from fundraising vehicles set up by the PTI itself, such as the two PTI LLC established in the United States. United States, PTI Canada Corporation and PTI UK. The ECP considered the funds raised by these entities, regardless of the identity of the final donors, as funds contributed by foreign companies which must be confiscated. Over the period 2008 to 2013, more than half of the foreign funds received by PTI went through these vehicles. Are these funds subject to confiscation? Should PTI funding vehicles be treated as foreign multinationals or alter egos of PTI itself? Lawyers relish these questions.
There are other streams, including Arif Naqvi’s now disgraced but then valued Wootton Cricket Club, totaling over two million dollars, which could have been raised for charitable, not political purposes in the UK . Some of the accounts through which funds reached the PTI are claimed by the ECP to have been concealed by the party when issuing full disclosure certificates signed by the head of the PTI, Mr. Imran Khan. These are serious enough cases 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 to the Supreme Court by Mr Khan himself, and therefore ineligible for life to be a member of parliament, will not be applied to him. Mian Nawaz was declared ineligible not because at the time of declaration he was found guilty of an act of corruption. He was not declared ineligible on the grounds that he held an iqama or a UAE residency visa. He was told that an unpaid nominal salary as chairman of the board of a one-man company set up by his son in the United Arab Emirates constituted a debt. Since the receivables are book assets and he had not declared this “asset” in his electoral declaration of assets, he was not a sadiq.
The author is a lawyer at the Supreme Court of Pakistan. He tweets @salmanAraja and can be reached at: [email protected]