Does govt seriously expect SC to ban arch-foe PTI?

KARACHI: Banning the PTI or filing Article 6 charges against Imran Khan or any other PTI member are misguided steps and will very likely not hold up in the courts either, explain legal experts who explain that the limitations placed on Article 6 and the procedure for banning a party bothmake either of the attempts difficult to be approved.

On Monday, the government announced it had decided to ban the Pakistan Tehreek-e-Insaf (PTI) as well as file references against PTI founder Imran Khan and former president Arif Alvi as well as former deputy speaker Qasim Suri for treason under Article 6.

How does a party get banned? And what does this mean exactly for the PTI? Barrister Ali Tahir explains that, first off, “everyone in Pakistan has the right to form or be a part of an existing political party as per Article 17 of the constitution. This right has been cherished by our Supreme Court, and Article 17 has been used in various litigations to strengthen political parties.”

But there is a procedure given regarding banning a political party. According to the constitution, says Tahir, “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 shall, within fifteen days of such declaration, refer the matter to the Supreme Court, whose decision on such reference shall be final.”

Supreme Court advocate Basil Nabi Malik elaborates further by emphasizing that Article 17(2) of the constitution “places a clear restriction on the federal government placing bans on political parties by involving the SC in the process itself. In terms of Section 212 of the Election Act, 2017, read with Article 17(2) of the constitution, the federal government, if satisfied that a political party is a foreign-aided political party, or involved in acts that are prejudicial to the sovereignty and integrity of the state, or terrorism, may declare the same as such via a notification in the official gazette.”

What happens next? Once the notification has been issued in the official gazette, within 15 days of the declaration, the government will refer the matter to the SC. Malik says that if the SC “upholds the declaration in question, the party would stand dissolved forthwith.”

It is clear from the process, points out Malik, that “banning a political party is considered to be an exception rather than the norm. Questions of infringement of fundamental rights and violation of due process spring to the forefront in any attempt to do so, and any governmental efforts to suppress a political voice shall raise worrying questions of enfranchisement and disenfranchisement of the public mandate and its sanctity.”

Eventually, it is the Supreme Court that has the final say, reiterates Barrister Rida Hosain. “Any government declaration in and of itself will not lead to any immediate consequences for the PTI. If the SC endorses the government’s declaration, then members of the political party are disqualified for the remaining term of parliament (Section 213, Elections Act 2017). None of the reasons set out by the government appear to satisfy the high threshold the constitution requires.”

What exactly happens if the apex court upholds the declaration? Barrister Tahir says that under the Elections Act, “in such a case, the party will be dissolved, and the net effect would be that any member of such political party, if he is a member of parliament, a provincial assembly, or a local government, shall be disqualified for the remaining term to be a member, respectively.”

Per Tahir’s analysis, “this makes perfect sense for this to be a counter-strategy to balance out the Supreme Court’s verdict from a few days ago. But this is misguided, for the Supreme Court will never, no matter what the composition of the bench, pass such a declaration.”

According to lawyer and activist Jibran Nasir, if the government were to make any declaration under Elections Act 217 wanting to ban PTI, it would not have any effect on the standing of the existing 39 members of PTI nor hinder the 41 independents from joining the PTI. In a post on X (Twitter), Nasir wrote that till the Supreme Court upholds the declaration by the federal government, the PTI “cannot be dissolved and will continue to function as a political party. Even banning the PTI under the Anti Terrorism Act 1997 will not be useful for PDM 2.0 as there is plenty of case law allowing members of banned organizations to contest elections and become MNAs/MPAs.”

Lawyers are no less stringent when asked about the government’s plans to file charges under Article 6. “Unfortunately, ‘traitor and ‘treason’ are words which are often thrown around in our discourse”, says Barrister Rida who is careful to point out that Article 6 is “limited to situations where the constitution has been abrogated, subverted, suspended or held in abeyance. Not every unconstitutional action amounts to treason. While the events of April 2022 were declared to be unconstitutional by the SC, they do not fall under any definition of treason. The National Assembly was eventually restored, and the vote of no-confidence against Imran Khan proceeded. There was no abrogation or subversion of the constitution, and the SC judgment was complied with.”

For context, the text of Article 6 of the constitution says: “Any person who abrogates or subverts or suspends or hold in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance the constitution by use of force or show force or by any other unconstitutional means shall be guilty of high treason.”

Basil Nabi Malik explains that in case of such charges of high treason, “the federal government shall forward a complaint to a special court for purposes of trial.” He adds that it will be “extremely difficult for the government to undertake such exercise, and highly unlikely that it’ll succeed. Imran Khan and the PTI may be guilty of many things, but subversion of the constitution, amongst other things, is not one of them.”

Tahir agrees: “Both the elements for the establishment of the offence here are conspicuously missing: neither was the constitution abrogated nor was there use or show of force, with the coups by generals Ziaul Haq and Musharraf being trite examples of conduct falling on all fours of Article 6.”

What are the basic constitutional questions that come up here and which the Supreme Court may eventually have to look at? Barrister Tahir lays it out as: “the representative character of the constitution; due process and fair trial; rights to political expression;exercise of free speech; and discrimination against one side of the political spectrum.” For him, it is “obviously clear” which side the Supreme Court decision will favour in this.