The federal government notified a ‘ban’ on Tehreek-i-Labbaik Pakistan (TLP) last Thursday after violent clashes between its members and the police led to the death of several police personnel and some protestors.

There was initially some confusion regarding the status of the ban on TLP, after negotiations between the federal government and TLP representatives. The federal government has now clarified that the ban has not been removed and the TLP members arrested on charges of terrorism, including its ameer, Saad Hussain Rizvi, have not been released.

The ban, as of today, means that the TLP has been notified by the federal government as a proscribed organisation under the Anti-Terrorism Act, 1997 (ATA). The ATA empowers the government to list an organisation as a proscribed one if there are reasonable grounds to believe that it is, among other things, committing or assisting terrorism.

The fact that the TLP has been notified as a proscribed organisation naturally implies that the federal government viewed it as engaging in terrorism. Pursuant to the proscription, the ATA obligates the federal government to ensure that all the offices of TLP are sealed; the money or other property owned by the TLP (whether directly or indirectly) is frozen or seized; its literature, posters and banners (whether printed or electronic) are seized; and that there are no public statements by or in support of the TLP.

The TLP is also obligated to submit all accounts of its income and expenditure for its political and social welfare activities and disclose its funding sources. Continuing to be a member of TLP after its proscription is an offence; so is inviting and soliciting any support (whether monetary or otherwise) or arranging a meeting, in support of the TLP.

It is obvious that any actions that an organiaation undertakes, including terrorism, are done through actual persons who are its members. Therefore, the fact that the TLP has been listed as a proscribed organisation inevitably implies that several of its members need to be appropriately penalised because the terrorism by the TLP, because of which it was listed as a proscribed organisation, must have been carried out by such members.

The ATA stipulates that any individual who engages in an act of terrorism shall be punished with punishment ranging from capital punishment to ten years imprisonment, depending on the severity of the harm caused by the terrorist act. Several members of the TLP have been booked by the police so far on charges of terrorism.

Two main concerns have been raised pursuant to the proscription of the TLP. One, whether the decision to proscribe a political party, which has three seats in the provincial assembly of Sindh, is a draconian use of the ATA to stifle legitimate dissent by labelling it as terrorism.

What constitutes terrorism under the ATA has been extensively dilated upon in a 2019 seven member bench judgment of the Supreme Court authored by the then chief justice Asif Saeed Khosa. It was stressed that the heinous nature of a crime is not sufficient for it to constitute terrorism, and any action that causes death or involves grievous injury or damage to any person or property shall only constitute terrorism under the ATA if, among other things, it is done with the aim of either coercing the government, or for the purpose of advancing a religious, sectarian or ethnic cause.

The fact that the violence affected by the TLP, including the ransacking of a police station, the torture of law enforcement officials and the snatching of an oil tanker (according to government sources) was self avowedly done to pressure the federal government to accede to TLP’s demands would be enough for it to constitute terrorism under the aforesaid criteria laid down by the Supreme Court.

The TLP is also obligated to submit accounts of its income and expenditure for its political and social welfare activities, and disclose its funding sources.

The fear that an overbroad definition of terrorism can be used to stifle dissent is legitimate, and there are instances in the history of Pakistan where governments, both civilian and military, banned mainstream political parties to consolidate their power. The National Awami Party (NAP) was banned twice, first by Yahya Khan (ostensibly occasioned by its refusal to support a military operation in the then East Pakistan in 1971), and later by Zulfikar Ali Bhutto. The alleged anti state activities behind the enactment of such bans were never proven.

Therefore, any ban by the government of a political organisation should be rigorously scrutinised. However, it is arguably unwise to read any protection in law (and the ATA) for organisations attacking law enforcement agencies and forcibly shutting down entire cities as a pressure tactic; the law cannot cater for revolutions.

The second concern that has been raised is the efficacy of the ban and whether it will be implemented or reversed. The ATA allows the TLP to contest by its proscription by filing a review before a three member committee constituted by the federal government. In case of a refusal by such a committee to reverse the proscription, the TLP has the right to approach a High Court to contest the proscription. The agreement between TLP members and the federal government states that the TLP shall file such a review. It does not contain any guarantees that the proscription will be reversed.

The fact that the government was negotiating with TLP members after its proscription does not inspire confidence regarding the efficacy of the proscription as continuing to remain a TLP member after its proscription is an offence, punishable under the ATA. It is unclear how that was lost on the interior minister while carrying out the negotiations, considering his ministry moved the summary for the proscription. The government also has not taken any steps so far to dissolve the TLP under the provisions of the Election Act, which is necessary to de-seat the three TLP MPAs.

It is equally unclear how the federal government will justify the reversal of the proscription of the TLP, it could only originally proscribe the organisation if there were reasonable grounds to believe that it was engaged in terrorism. Therefore, the government committee, it if reverses the proscription, will have to explain how the reasonable grounds that occasioned the initial proscription were either based on false information or were in fact unreasonable.

Keeping in view that as per the government itself, police personnel have been kidnapped and tortured and some have even lost their lives during the TLP protests, there does not seem to be legal room for the government to make such a determination (whether there is any efficacious legal remedy against a reversal by the government is another matter).

The federal government also lacks the power to withdraw the FIRs filed against various TLP members on charges of terrorism under the ATA. This is unless the investigating officer in each case concludes that the individuals nominated in the FIR were incorrectly implicated. The federal government does not have any legal power to reach a compromise with the alleged terrorists.

If the FIRs against TLP members are withdrawn, then that will raise a question about the identity of the untraced individuals who kidnapped and tortured police personnel, and whose actions led to some police personnel losing their lives. On the other hand, if the FIRs are not properly pursued, the government will be sending a clear message that the prosecution of terrorists and the safety and the lives of the police personnel, who enforce its writ, are not important.

A proscription under the ATA is meant to cut off oxygen supply to organisations that have demonstrated through their actions that they will intentionally use violence to achieve political ends. While legal steps alone will not be sufficient to eliminate the violent ideology underpinning a terrorist organisation from the society, a transparent and proactive enforcement of the restrictions provided under the ATA will go a long way. This will help both in deterring a recurrence of the violence and in checking the rise of such organisations.

Ali Javed Darugar is a lawyer practicing in Lahore and can be reached at ali.darugar@legharianddarugar.com