Quaid-e-Azam Muhammad Ali Jinnah remained the president of the All India Muslim League from 1937 to 1943. Abul-Kalam Azad was the president of the All India Congress from 1936 to 1946. Syed Maududi headed the Jamaat-e-Islami almost throughout his life.
Founding leaders usually remain the head of a political party and are ‘reelected’ because in South Asia, people rally behind leaders and subscribe to their ideologies. Pakistan owes its existence to Jinnah, who created it against all odds.
The pivotal position of political parties in modern liberal democracies is well known. These parties are organized on common ideals. People vote for them on the basis of their programmes. Political parties help form public opinions on important issues that determine state policy. The ultimate goal of a political party is to gain power through ballot and deliver on its programme.
The entire constitutional scheme is built around the formation, membership, functioning and voting for political parties to give it a representative character. The formation of political parties, with the penumbra of rights, is therefore elevated to a fundamental right in almost all constitutions. These rights are also recognized in international charters as part of civil and political rights.
Pakistan’s constitution recognized this basic right in Article 17. The 1956 and 1962 constitutions also recognized this right to form and join political parties. However, the original right, as guaranteed in the constitution of 1973, was qualified through the fourth amendment (1975) by adding more restrictions on the formation of and existence of political parties, including restrictions in the interest of Pakistan’s integrity and sovereignty.
The federal government was given the power to prohibit or dissolve a political party subject to an SC verdict passed in a reference by the federal government. These expressions were not defined in the constitution. Additionally, a political party was obligated to account for funds. This restriction was added in the context of the cold war as parties were funded by the erstwhile communist Soviet Union. Funds and aid from the ‘free world’ were seen with favour.
The Political Parties Act, 1962 was also amended, and the power to prohibit and dissolve a political party lay with the federal government. It was a dangerous tool given in the hands of sitting governments, which could silence their political opponents and dissenting voices by prohibiting and dissolving political parties. The law was further amended to make it compulsory for political parties to register with the Election Commission of Pakistan (ECP).
Yet in another attempt to control political parties in the political arena, intra–party elections were made a condition, and a certificate from the ECP had to be obtained to become eligible for a common election symbol for elections. This gave the commission the power to either refuse to accept or instead raise a dispute against such intra-party elections and then judge the said elections in the absence of an express adjudicating power under the law.
This latter part of the law was added through the Legal Framework Order of 2002 in Article 17 by adding clause 4 with the objective of excluding two main political parties from the electoral process. The Political Order, 2002 was promulgated to incorporate these Machiavellian provisions. Articles 11 and 17 of the Political Order, 2002 provided the legal framework. Article 17 was substituted through the 18th Amendment in 2010, and the requirement of holding intra-party elections was done away with. The omission of the said constitutional provision, having been challenged through a petition, was maintained by the SC in the 2015 district bar association case. It was held that intra-party elections were not sine qua non for a democratic setup (paragraph 117).
In an earlier attempt to control political parties, by amending the Political Parties Act, 1962 through various enactments during the martial law regime, restrictions were placed by forcing parties to register with the commission. The SC, in its historic judgment (1988) on a petition of the late Benazir Bhutto, struck down the requirement of registration made subject to the satisfaction of the ECP that was sine qua non for participation in elections and held that leaving discretion with the commission “be but an unreasonable restriction as it fails to provide a remedy against the exercise of discretion in putting to an end the existence of a political party in the context of rights guaranteed by the constitution”.
In another judgment (1989), the vires of Section 21 of the Representation Act were challenged wherein political parties were omitted from eligible persons to obtain an electoral symbol for elections. The SC struck down that provision also and held that the right to obtain a symbol was part of the rights guaranteed under Article 17. The right to a symbol for elections is also connected with the constitutional right to vote as guaranteed under Article 51 of the constitution.
Lawmakers overlooked the constitutional change and incorporated Article 17 of the Election Order in the form of Section 215 of the Election Act. There is no entry in the Federal Legislative List in relation to political parties. The law thus enacted can only draw its constitutional backing from Article 17 of the constitution. The ECP does not conduct intra-party elections. Section 209 of the Election Act does not confer jurisdiction upon the commission to decide an intra-party election dispute before giving the certificate.
In the absence of an express conferment of jurisdiction as required under Article 175(2) of the constitution and there being a bar under Article 225 of the constitution, the ECP cannot interfere in, dispute and decide an intra-party election matter and refuse the election symbol to a political party. It would become a party to the lis and a judge in the cause.
Political parties are like private clubs. Intra-party election disputes are to be decided by the courts of ordinary jurisdiction. The provisions of Sections 209 and 215 of the Elections Act are ultra vires and against the constitution’s basic features. The commission, by denying the election symbol to a political party on the basis of intra-party elections, would be failing in its duty to hold free, fair and transparent elections.
In the Marbury v Madison case, the Judiciary Act was struck down in the absence of a formal challenge thereto. Vires of Section 8-B of the Political Parties Act were challenged in defence as a legal objection to question the jurisdiction of the ECP. The Supreme Court upheld the objection and declared Section 8-B ultra vires of the constitution. Judges take oath to uphold the constitution and not laws.
After committing an historic wrong in the Tamizuddin case (1955), CJ Munir, in the twilight of his career observed in the 1958 noon case that “if the country is ruined by the wrong choice of the prime minister, the responsibility for the disaster is that of the people and not of a judge”. CJ Marshall’s observation in McCulloch v Maryland is still relevant: “We must never forget that it is the constitution we are expounding”. There is no harm in admitting mistakes.
The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan. He can be reached at: mwaqarranayahoo.com