PARTIES AND POLITICIANS
The background rules of parliamentary government, amongst which the legal recognition of political parties and individual political actors are a central part, are investigated here.
Early precedents set by the first Constituent Assembly to control political outcomes by employing the techniques of bans and disqualifications have been recreated in different forms throughout much of the rest of Pakistan’s history. Military governments beginning with Ayub initially endeavoured to proscribe political activity altogether. However, formal prohibitions were only in place until such a time that each, Ayub, Zia and Musharraf, has felt compelled to seek continued legitimacy for rule through the recreation of a representative legislative sphere. This process of ‘transforming military rule into a civilian system of administration by employing democratic instruments such as elections and referenda’ has engendered a rewriting of rules so that the results are to their advantage.[171] With varied effect, the fundamental right of association has repeatedly been invoked to assert greater independence for a political sphere from the constraints imposed by the military and executive.A. The Regulation of Political Parties
The hard won dominance of the Muslim League in the lead-up to Partition gave way to the proliferation of parties and programmes soon after Partition. This in turn aroused anxieties and led to restrictive measures on allowable politics. The 1951 ban on the Communist Party of Pakistan reverberated with foreboding of such a narrowing.[172] The ban was part of a larger assault upon leftist politics in the country. Worker militancy immediately after Partition was met with the passage of laws aimed at dissuading collective action; the Essential Services Maintenance Act of 1952 made strikes within certain industries a criminal offence.
Popular union leaders were repeatedly detained under preventive detention regimes and further criminalised for ‘fomenting trouble among labour in general’.[173]Ayub first instituted a ban on political parties as ‘unlawful organisations’ after taking power in 1958, then promulgated the Electoral Bodies Disqualification Order in 1959. It was in these conditions that the first Basic Democracies elections were held.[174] [175] Renewed functioning for political parties was eventually allowed through the passage of the Political Parties Act of 1962 (PPA 1962). Importantly, Ayub also assumed the Presidency of a party comprised of his own loyalists from within the Muslim League, establishing another precedent for both Zia and then Musharraf.
The PPA 1962 established limits to political party activities and also specified that the central government would have the power to ban those parties that took action prejudicial to the integrity or security of Pakistan and were formed at the behest of any foreign government. In Abulala Maudoodi v Govt of Pakistan1 the Supreme Court determined that the right to association can only be tempered by reasonable restrictions and not denied altogether.[176]
The essentially non-party character of Parliament within the basic democracy system was in contrast to the accelerated pace of political organisation that was taking place outside. Forged often in a protest idiom against authoritarian and military rule, as well as against the perceived injustices of the One Unit, this was a period of political ferment in which the People’s Party was formed and in which the Awami Party in the East, and to a lesser extent the Jamaat-e-Islami and the Jamiat Ulema-e-Islam, made significant gains in popular support. They were all young parties insofar as they had not had any significant experience of the workings of the parliamentary system.
When the 1973 Constitution was framed it provided a right of association that was subject to reasonable restrictions.
In comparison to previous constitutions, the right was more inclusive for providing citizens the specific liberty to be a member of a political party through Article 17(2). Less than a year later, the First Amendment Act was passed in the National Assembly and made significant alteration to Article 17(1) by specifying that reasonable restrictions were to be read ‘in the interest of the sovereignty or integrity of Pakistan’. It also provided that ‘where the Federal Government declare [sic] that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan’ it could refer the matter to the Supreme Court for a final determination.In February of 1973 the National Awami Party (NAP) government in Balochistan was dismissed by Zulfiqar Bhutto in his role of President and shortly thereafter the NWFP government also resigned in protest at the federal government’s actions in Balochistan.[177] Bhutto then disbanded NAP in February of 1975. The reference on the ban was presented to the Supreme Court, which accepted its role as the arbiter on this issue. Justice Hamoodur Rehman upheld the ban on NAP by finding that the promotion of ethnic nationalism was an offence against the sovereignty and integrity of Pakistan.[178] The dissolved party would be refounded in 1978 as the Awami National Party (ANP).
In the anticipation of the elections Zia promised would follow shortly after his assumption of power in 1977, the PPA 1962 was amended to include Islamic ideology and morality as additional grounds for controlling political parties.[179] Additionally, parties were now required to meet certain conditions for the purposes of registering themselves with the Election Commission, a precondition for fielding candidates in an election. These changes were of little consequence for some time, as Zia indefinitely delayed elections and then reconstituted the legislature as an appointed consultative body in 1982.[180] Following the Restoration of the Constitution Order of 1985, national elections were held on a non-party basis.
It was in the lead-up to the 1988 elections that the provisions of 1978 were challenged in the courts against the resurrected rights guarantees of the 1973 Constitution.[181]In Benazir Bhutto v The Federation the majority judgment, authored by Chief Justice Mohammad Haleem, held several of the Zia amendments to the PPA 1962 to be contrary to the protections offered by Article 17.[182] They did not find it unduly restrictive for political parties to have to abstain from offending Islamic ideology, morality or public order. On this they simply counselled that these be read as constitutive features of the ‘sovereignty and integrity of Pakistan’, as per Article 17(2). The requirement of registration was, however, held to be contrary to a full realisation of the right of association. This was partly in acknowledgement of the Supreme Court as the only constitutionally mandated forum for making determinations about the banning of parties, as per the changes introduced earlier. Additionally, the vesting of discretionary authority in the Election Commission to refuse recognition to political parties was seen as diminishing the guarantees of Article 17. Participation in elections was deemed to be an essential element of the realisation of the right of association so that ‘if the [sic] political party is disabled to participate in an election it loses its political texture and to all intents and purposes it will suffer extermination’. This case also provided a number of additional statements about the centrality of the political party apparatus to the form of government anticipated in the Constitution.
In 1993, a presidential dismissal of the first Pakistan Muslim League (PML-N) government under Nawaz Sharif allowed Justice Shafi ur Rehman to identify an Article 17 violation in this act of unjustified dissolution.[183] The Supreme Court decreed that the right ‘to form or be a member of a political party’ as encompassing not only the rights to constitute a party and contest elections ‘but also, after successfully contesting the elections, the right to form the Government if its members’, possessed the ‘requisite majority’.
The PPA 1962 was repealed and replaced by the Political Parties Order 2002 (PPO 2002). This alteration of law was again in anticipation of the national election that Musharraf was bound by the Supreme Court to call in exchange for a validation of his coup of 1999.[184] Having already ensured that local government elections were conducted on a non-party basis, the PPO 2002 was intended to ‘clean up’ the political sphere and to ensure that the assembly constituted would be subservient to Musharraf. At this time ‘public order’ was added alongside sovereignty and integrity of Pakistan as grounds for reducing the rights of association under Article 17.[185] Public order provides a lowered threshold for measuring threat, by establishing not only the continued existence of the state but any number of subsidiary criteria as needing protection. Additionally, a sub-Article 17(4) was inserted to read ‘Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders’.
Both changes to Article 17 accorded with innovations made in the regulation of political parties through the 2002 Order; Section 3 placed a prohibition on the promotion of sectarian views, bearing the name of a militant group and fostering militant factions within a party, but removed offences against Islamic ideology as possible grounds for dissolution. Offences to public morality and security were repeated as per the PPA 1962 and the fostering of terrorism was added as a further possible ground for dissolution. Additionally, the conduct of periodic elections to fill high office in political parties was made obligatory for the first time in Pakistan’s history. The irony that it was a military dictator who sought to ensure internal democracy within political parties was not lost on politicians.
Beginning in late 2001 a number of organisations, currently totalling 61, were officially banned in Pakistan on evidence of their link to sectarian violence or terror-related offences.
These prohibitions were undertaken through the Ministry of the Interior under the AntiTerrorism Act of 1997.[186] A number of these banned organisations were actively involved in electoral politics through the 1990s. For instance, the Sipahah-e-Sahaba, a virulently anti-Shia organisation headquartered in the district of Jhang, was briefly part of a coalition government in Punjab in 1993—1996. Rather than challenge the proscriptions for negating the safeguards of Article 17(2), which would require the Supreme Court to make a final determination, many of these groups have taken the route of rebranding themselves, so that the leadership and infrastructure of these groups reappear under a different name within the electoral landscape. Most famously, Lashkar e Taeba (LeT), banned in 2002, re-emerged as Jamaat ul Dawa and contested elections in Kashmir in the year 2005. By styling itself on organisations such as Hizbollah and Hamas, it was able to win greater public acceptance in a new welfare and service-oriented guise. The Mumbai attacks of 2008, in which 164 people were shot in multiple sites of the India city by gunmen, was almost immediately linked to the continued operations of the LeT in the guise of Jamaat ul Dawa. International pressure led in turn to the passage of a UN Security Council resolution calling for Jamaat ul Dawa to be dissolved. Instead, the Interior Ministry in Pakistan placed it ‘under observation’.[187]In contrast to the show of vigilance against sectarian and militant organsiations, the bar on militant wings of mainstream political parties has never been enforced, even as widespread evidence of the existence and operation of armed sections of a number of parties, particularly those that have a strong electoral base in Karachi, is readily apparent. In Watan Party v The Federation of Pakistan, commonly known as the Karachi Law and Order case of 2011, the possible recourse to the PPO 2002 provisions was noted, but left for the federal government to utilise.[188] Where the government has intervened, it has been a partisan manner and led to allegations of political victimisation.[189]
These, the ‘ground realities’ of Pakistan’s political sphere, are also reflected in the partial compliance with PPO 2002 requirements necessitating internal party elections. Even amongst political parties that once offered a radical critique of oligarchic power holders, internal succession from within families is an undeniable aspect of their current culture. In fact, in the lead-up to the 2013 elections, a Pakistani news magazine published the results of an empirical study that concluded, ‘dynastic politicians belonging to approximately 400 families have been instrumental in shaping policies, programmes and legislation that have impacted the lives of 176 million Pakistani citizens’.[190] Amongst the large contingent that are feudal or land-holding families, the most famous are the Bhuttos, who have uninterruptedly held top office in the Pakistan People’s Party (PPP) for more than 40 years and over three generations.
The holding of non-party elections in 1985 was anticipated to displace feudal elites from power, given the assumption that parties fielded these candidates because they brought with them a vote bank based upon customary loyalties. The election did in fact open the field to an ascendant class of businessmen and the independently wealthy, epitomised in the rise of the Sharif family. The Sharifs are heirs of the Ittefaq group of companies, built up over a generation by their father, and Nawaz Sharif has been leader of the Pakistan Muslim League—Nawaz (PML-N) since its founding in 1988.[191] What the study above also highlights is that in the period since then ‘business-owning, trading and professional elites have been as successful as their landowning counterparts, if not more, in forming dynastic families and that the power of capital appears to be as potent as the power of land’ in enabling political influence to be concentrated.
In these two major parties, as well as with the Muttahidi Qaumi Mahaz (MQM), Pakistan Tehrik-e-Insaf (PTI) and the Jamiat Ulema- e-Islam (JUI) intra-party elections have been periodically held, but in all, top office holders have contested their seats unopposed. The major exception to this ubiquitous pattern of dynastic control within parties has been the Jamaat-e-Islami. Scoring highest in independent studies of internal democracy, not only for the regularity with which top offices are filled by election, but also in sustaining internal party mechanisms for consultation and deliberation on matters of policy, the Jamaat’s practices reflect a long preoccupation with fostering a cadre of ideologically-committed party members. Not surprisingly, where the Jamaat’s practices are lagging is in reference to the inclusion of women and minorities indications, in which the PTI and PPP are both better performers.[192]
Although predicated on an abidance of norms of ‘good governance’ the contradictions of the Musharraf era, which included the continued fostering of militant elements by the state itself as well as the quick compromises drawn by Musharraf with a section of the existing political class, ensured that his changes were of minimal transformative impact. The existing political landscape continues to allow extremists space and the internal democracy of parties is far from being realised.
In 2010 the Eighteenth Amendment Act reverted Article 17 to the form it had taken after the passage of the First Constitutional Amendment. The PPO 2002 has been supplemented with some amendments. Significant amongst these amendments is a new provision to ensure that 10 per cent of the candidates fielded on general seats by all parties should be women.
B. Disqualification
A long history of enacting statutes and ordinances aimed at barring individuals from contesting elections for the legislature has been termed the ‘doctrine of disqualification’ by some commentators. The earliest encoding was by the first Constituent Assembly, which had itself been elected under a limited franchise under the 1935 Government of India Act. The highly centralised and elite composition of the ruling Muslim League under Liaquat Ali Khan sought to immunise itself against public opprobrium for general failures of governance and to punish those expressing regional autonomy or independence of mind against centralised dictate through the Public and Representative Offices (Disqualification) Act 1949 (PRODA).
The Act offered a mechanism for lodging a complaint against a Cabinet minister or an elected member suspected of corruption, nepotism, favouritism or bad management.[193] Until its repeal in 1954, PRODA was primarily made use of by politicians to ‘attack their rivals, giving rise to partisan vendettas’ and ultimately this made way for the discrediting of the political party system that was capitalised upon by the army and bureaucracy in coming years. However, with a judiciary keen to ensure procedural justice and with the relatively narrow criteria for disqualification, only five politicians were ever effectively debarred.[194]
Under Ayub, the disqualification of more than 6,000 politicians for the period 1959—1966 under the Electoral Bodies Disqualification Ordinance (EBDO) acted in tandem with the ‘restoration of democracy’ through the ingenious invention of the basic democracies system. Especially targeted under EBDO were those affiliated with parties that had actively protested the enactment of the One Unit.[195] With subsequent alterations members of the public service could also be charged and the grounds for disqualification were expanded to include any prior indictments under the Security of Pakistan Act. These changes were engineered to ensure that many leading members of the political class, those who had in the past held posts as high as Prime Minister, were in fact ‘EBDO’ed’—with disqualifications set to last until 1966.[196]
The transition to democratic government did not do away with attempts to constrain political organisation. Zulfiqar Bhutto’s preferred system of undermining rival politicians is detailed in Chapter 7 with regard to detention, but extended beyond that to banning rival political parties such as NAP.[197] In the 1973 Constitution, Articles 62 and 63, entitled Qualification and Disqualification respectively, were incorporated. They were each far more meagre than the current articles, which were expanded by way of Zia’s RCO of 1985, and then further supplemented with additional criteria by Musharraf.
The articles passed in the 1973 Constitution detailed qualification criteria that included possession of Pakistani citizenship, the age qualifications of 25 for National Assembly and 30 for the Senate and ‘any other requirement that may be mandated by law’. The list of Article 63 disqualifications at the outset included ‘being pronounced of unsound mind by a competent court’, ceasing to be a citizen, or acquiring citizenship in addition to Pakistan’s and being an undeclared insolvent. From the outset it is apparent that these disqualifications were envisioned as being operative both prior to and after an election. In the case of the latter, it was provided in Article 63(2) that the Speaker of the Assembly could choose to acknowledge that a question of disqualification had arisen and refer the matter to the Election Commission.
To the list of original qualifications, Zia added not only that the candidate be a Muslim but also that such person be of ‘good character’ and not known as ‘one who violates Islamic Injunctions’ in the package of 1985 reforms.[198] In addition, the person must have ‘knowledge of Islamic teachings and practice obligatory duties prescribed by Islam’ and be ‘sagacious, righteous and non-profligate and honest and ameen (righteous)’. These provisions, although widely-assailed for reasons to be discussed further below, have been retained in the Constitution even as other of Zia’s innovations were later revised. In part this reflects the general immovability of laws made in the promotion of Islam.[199] It also perhaps suggests that political parties themselves have remained open to maintaining laws through which rivals can be targeted.
Under Zia, numerous criteria were added to the disqualifications of Article 63. Some were framed as safeguards against conflicts of interest, and this included a deepening of the prohibition on the ability of state employees to contest elections.[200] Other new grounds for disqualification included prior convictions for crimes of moral turpitude and for defaming and bringing into ridicule the judiciary or the armed forces of Pakistan under Article 63(1) (g). In this period the list of criteria for disqualification grew to number 18 specific clauses.
In keeping with the generally fractious nature of politics through the 1990s, the disqualification criterion most often used to launch challenges against politicians was that which barred them from electoral contest following service in a state institution. The quick changeover in governments made it a regular occurrence that those displaced from office were seeking re-election in the next election. Broadly though, the systemic logic behind Zia’s criteria had no takers in terms of promoting an Islamic, or even corruption-free, political sphere.
This would change when Musharraf assumed power and endeavoured to refashion politics afresh through the Constitution and law. For qualifications, he removed the criteria of Article 62 that one be a Muslim, but retained the criteria related to Islamic knowledge and piety.[201] Musharraf also introduced an educational qualification through the Conduct of General Elections Order of 2002 that required prospective candidates to possess a bachelor’s degree. It broadened the list of disqualifications to include default on personal loans and on ‘government dues and utility expenses’ by either the prospective candidate or ‘his spouse or any of his dependents’ [sic]. Immediately after taking power, Musharraf passed the National Accountability Ordinance, which introduced accountability courts and an investigative and prosecutorial system in the National Accountability Bureau (NAB). Although applicable to all persons and not only public officials, it was in parts oriented to facilitating disqualification. Interestingly, such corruption within the ranks of the military is specifically indemnified from the oversight of the National Accountability Bureau.[202]
The educational qualification impacted vast numbers of politicians and is recounted here in detail both to illustrate the nature of elite anxieties about democracy in the country and also because it is of continuing impact, even though invalidated in 2008. In an early challenge, PML-Q v The Federation, the Supreme Court ruled that a minimal educational qualification did not offend against equality guarantees and was a reasonable restriction on the rights of association. The reasonability of this classification was tied to the legitimate object of changing the political culture of Pakistan. Recounting the ‘sad tale of failures on the part of the [sic] public representatives’ in previous episodes of political rule Justice Riaz Ahmed was quick to assume that the acquisition of a university education was a rational stand-in for merit and public-mindedness.[203] There was no corresponding discussion about the vast exclusions that this entailed.
The educational qualification was vigilantly enforced by the officers of the Election Commission in the lead-up to the 2002 elections and resulted in both pre-election disqualifications and, in some cases where false degrees were presented to the Commission during the vetting stage, to disqualifications of sitting members of the Assembly when the fraud was later discovered. However, if the aim of promoting this qualification was to denude the power of career politicians and the feudal class, it often had the converse effect of quickening the entry of a younger generation of heirs-apparent from dynastic political families into electoral politics. Additionally, a certificate of training from a Madrasa was considered equivalent to a bachelor’s degree, which allowed members of allied religious parties under the banner of the MMA to have a greater comparative advantage in these elections.[204]
When, in 2008, the educational qualification was once again challenged, the Supreme Court found no rational basis for this classification to have been employed.[205] In a complete turnaround from PML-Q, the qualification was found to unduly restrict the rights of association.[206] The judges found no evidence that more meritorious and capable legislators had formed the assembly of 2002—2007. In terms of discriminatory impact, the court took notice of the fact that less than 3 per cent of the population possessed the requisite qualification and that this included people currently employed in public service, itself a criteria of disqualification from political contest.
Other than the educational qualification, which continues to have resonance,[207] nearly all the changes introduced to Articles 62 and 63 by Zia and then Musharraf have carried forth. Only minor revisions to some of these were undertaken as a part of the Eighteenth Amendment Act in 2010. Changes at this time included the application of a time limit on disqualification for some of the offences cited under this provision, as well as a standard of evidence requiring a criminal conviction for some of them to become operative.
That the regime of disqualification has expanded and gained great consequence was apparent in one very sensational disqualification in the year 2012, when the Supreme Court acted to force Prime Minister Syed Yousaf Raza Gillani to relinquish his office and seat in Parliament. After convicting Gillani of contempt of court for not pursuing cases of corruption against President Asif Zardari, the Supreme Court notified the Speaker of the Assembly that a question of disqualification on the basis of Article 63(1) (g) had arisen against the Prime Minister.[208] Article 63(2) provides that in such circumstances ‘unless he [the Speaker] decides that no such question has arisen’, the Speaker must refer this question to the Election Commission within 30 days. In a tense face-off between the Supreme Court and the Peoples Party government, the Speaker refused to make a referral to the Election Commission. The Supreme Court ultimately assumed jurisdiction as per Article 184(3) and decreed that Gillani was indeed disqualified.
Dismay at the disqualification regime grew more acute when, prior to the 2013 elections Zia’s pietist Islamic criteria were used by officers of the Election Commission to compile character certificates of potential candidates. For the first time, the ascertainment of whether or not candidates possessed adequate ‘knowledge of Islamic teachings and practice obligatory duties prescribed by Islam’ was undertaken quite seriously. Resultant disqualifications, when challenged, confronted the appellate authorities ‘with no option but to overturn a large number’ of them. Some reversals turned on the finding that the junior officers of the Election Commission had overstepped their authority, others on the violation of ‘the larger fundamental right to contest elections and still others on the ground that several requirements of Article’s 62 and 63 necessitated convictions by a court of law’.[209]
Non-elected rulers have initially always instituted controls over the political party system and expansions of the disqualification regime to restrict the realm of an acceptable politics. It is important to note that these criteria neither reflect popular demand nor is the electorate necessarily respectful of paternalistic dictates on the question of who is fit to govern: the easiest measure of this is that the electorate regularly returns to public office contenders who are known to be financially corrupt. However, that politicians have not sought to reverse or limit these restrictions more effectively and have instead aimed their enforcement at rivals has reinforced the impression of politics as being waged in a gladiatorial arena, in which the slaying of opponents rather than the realisation of programmes is the end.
In many ways this deep personalisation works to disguise what is in fact a greater convergence between the major parties on the more potent issues of socio-economic policy and national security, amongst others. In the context of what has now long been a two-party system in which third parties have mostly gained their foothold either by reliance upon an ethnic constituency or in appealing to the goal of implanting Shariat, the prospects for new entrants have been low. These convergences in policy are also informed by broader issues, as discussed further below.
III.