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Is There A Deliberate Legal Loophole In The Ban On The TLP?

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A few days ago, Tehreek-e-Labbaik Pakistan (TLP), an extreme right-wing political party protested all over the country, blocking several important roads, bringing life to a halt. Their protest, as is often the case, was followed by extreme acts of violence and chaos, resulting in hundreds injured and thousands arrested. These scenes were not new, since their methodology mirrored their previous protests of 2017 and 2018. After much criticism and many reported incidents of violence by the group coming to light, the government finally decided to take action against an organization that has utilized violence at every step of the way and has made savagery the norm in its party ranks.

The news of such action brought great joy and many took a sigh of relief that the government was finally doing something about a radical group that has used violence and fear as a way to show its power. However, the action itself left many legal experts confused and concerned over the legality of the issue.

The government decided to ban TLP by using the anti-terror law: i.e. Section 11B of the Anti-Terror Act 1997 which is reproduced below:
11B. Proscription of organizations.—(1) The Federal Government may, by order published official Gazette, list an organization as a proscribed organization in the First Schedule on an there are reasonable grounds to believe that it is—
(a) Concerned in terrorism; or
(b) Owned or controlled, directly or indirectly, any individual or organization this Act; or
(c) Inciting on behalf of, or at the direction of, any individual or organization proscribed under this Act.
(2) The grounds shall communicated to proscribed organization within three days of the passing of the order of proscription.

The government followed the aforementioned procedure and has declared them a terrorist organization. What has left many legal experts raising their eyebrows is that the ATA has never been applied to a registered political party which is governed under the Elections Act 2017.

In fact, the Elections Act 2017 contains several sections as to the procedure for the dissolution of a political party and its after-effects. And since Tehreek-e-Labbaik is a registered political party, it comes under the purview of the Elections Act 2017, whose dissolution process is mentioned in section 212 of said act, as reproduced below:
212. Dissolution of a political party.—(1) Where the Federal Government is satisfied on the basis of a reference from the Commission or information received from any other source that a political party is a foreign-aided political party or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism, the Government shall, by a notification in the official Gazette, make such declaration.
(2) Within fifteen days of making a declaration under sub-section (1), the Government shall refer the matter to the Supreme Court.
(3) Where the Supreme Court upholds the declaration made against the political party under sub-section (1), such political party shall stand dissolved forthwith.

We can see from the above that in the event of a registered political party indulging in terrorism, the procedure mentioned in Section 212 is to be followed. To declare a registered political party a terrorist organization is circumventing a set procedure. And while Pakistan has a rich history of banning political parties, declaring them terrorist organizations is most certainly a new precedent. The designation of terrorism itself is not the problem, as, without a doubt, the violence perpetrated by TLP could only be called “terrorism.”

Terrorism isn’t simply blowing up buildings or shooting up places. The mob violence perpetrated, supported and openly declared by TLP also constitutes acts of terrorism and is covered in the Anti-Terror Act 1997 Section 6 Subsection 1(C):
“The use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies.”

In Section 6 Sub-section 2 (a) (c) (g) (i) (j) (m), actions ranging from death to looting to arson to burning public vehicles to actions against public officials. And to disrupt the daily lives of individuals are mentioned, and all these actions were perpetrated by TLP, without a shadow of a doubt but it also doesn’t change the fact that the party is a registered political party in Pakistan.

The government should have removed their name from the ECP-registered party-list following the dissolution procedure in section 212 and then followed it up with the proscribed process of section 11B. By circumventing the former, the government has given them a chance to bring forth effective litigation, basing their arguments on Article 17 of the Constitution and the courts will be forced to decide whether or not to allow the creation of a dangerous precedent where a registered political party could immediately be declared a terrorist organization, which will most certainly be abused by future governments to meet their political ends. The courts are unlikely to allow for the creation of such a precedent.

It must be mentioned here that in 2019 the TLP judgment passed by Justice Qazi Faez Esa had ordered the government to discover the funding of the party and how they were able to gain such strength. He ordered the ECP to implement the Elections Act 2017 section 211 which orders the political party to declare its finances – in the absence of such, the party could be removed from the registered party list. And TLP most certainly had not done that – yet were allowed to be registered, campaign and contest elections. Ironically PTI provided support to the TLP in 2017 despite their actions being no different in 2017 than they were in 2021 and the Interior Minister Sheikh Rasheed openly supported them, both in the parliament and outside. He was named in the 2019 judgment as one of the political persons whose support had strengthened TLP.

By not following the proper procedure, the incumbent government has made its case weak and its action challengeable. Yet we must ask as to why this was done.

Shall we put it simply to the incompetence of the current government, as we have done for all previous fiascos? Are we to once again excuse the Law Minister for not knowing the nuances of Law? Unfortunately, ignorance can no longer be allowed as a valid defense. A legal loophole has been purposefully made to allow this party to challenge the ban and survive. It will go dormant for now as it did in 2018 and we will see litigation and cases – only for it to be ready and prepared by 2023.

If we are to guard against this force, then we must find out who is feeding it and implement the 2019 judgment. We must discover what has allowed for the TLP to gain such resources, power and strength for it to challenge the government again and again. That would be the only way to bring an end to this chaos.

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Naya Daur