Prohibited funding case: Fingers crossed as ECP pronounces ruling today

Legal experts reckon former ruling party will escape disqualification

Hasnaat Malik August 02, 2022


ISLAMABAD: The Election Commission of Pakistan (ECP) on Tuesday (today) will hand down its much-awaited ruling in the prohibited funding case that has been looming over the Pakistan Tehreek-e-Insaf (PTI) for eight years, as the party continues to voice its misgivings over the "biased" handling of the case proceedings by the top election supervisory body.

A three-member bench of the ECP will announce the verdict — reserved in June earlier this year — at 10am today, according to the top electoral body’s cause list issued on Monday.

Will ECP disqualify PTI?

With the ECP’s ruling hours away, legal experts weigh in on the relevant laws regulating the funding of political parties, reckoning that in case prohibited funding is proved, PTI will still escape disqualification.

Article 6(3) of the Political Parties Act 2002 is very relevant in the case. The provisions say: "any contribution made, directly or indirectly, by any foreign government, multi-national or domestically incorporated public or private company, firm, trade or professional association shall be prohibited and the parties may accept contributions and donations only from individuals".

Also read:  PTI set to file ‘judicial reference’ against CEC over ‘unlawful’ meeting

According to the provision, there is no bar for individuals to donate funds to a political party. Interestingly, there is no allegation that the PTI received funds from any other state institution or agency.

Likewise, the Election Act 2017 will not be applicable to the PTI case. The party accounts that are being scrutinised pertain to the year preceding 2013.

SC judgment on foreign funding

The Supreme Court has already discussed in detail the question of foreign funding in its 2017 judgment on a petition filed by Pakistan Muslim League-Nawaz (PML-N) leader Hanif Abbasi, who had sought the disqualification of Imran Khan.

The SC bench led by the former chief justice of Pakistan (CJP) Mian Saqib Nisar, while making a distinction between a ‘foreign aided’ party and ‘prohibited funding’, referred to the case on December 16, 2017, to the ECP for a probe.

The judgment noted that it is the duty of the ECP to scrutinise accounts of political parties on the touchstone of Article 6(3) of the PPO read in the light of Article 17(3) of the Constitution.

Also read: 'PTI directly benefited from foreign funding'

PML-N’s counsel Akram Sheikh had submitted that the PTI is a ‘foreign-aided’ political party in terms of Article 2(c) (iii) of the Political Parties Ordinance (PPO) 2002 as it received contributions prohibited under Article 6(3) thereof read with Article 17(3) of the Constitution.

He had argued that despite the above-stated position, Imran Khan personally issued certificates to the ECP in terms of Article 13(2) of the PPO to the effect that PTI “does not receive funds from prohibited sources”, meaning thereby that it is not a foreign-aided political party.

These certificates make a misdeclaration of fact and thus the Respondent (Imran Khan) has proven himself to be not sagacious, righteous or honest.

“He is, therefore, liable to be disqualified from holding elective office or being elected thereto under Articles 62(1) (f) and (g), and 63(1)(p) of the Constitution,” he had said.

However, the apex court in its judgment had noted that it is not the case that the PTI was formed or organised at the instance of any government or political party of a foreign country or is affiliated to or associated with any government or political party of a foreign country, or receives any aid, financial or otherwise, from any government or political party of a foreign country.

Rather, the allegation is that the PTI has been receiving financial contributions and/or a portion of its funds from foreign nationals as not only the directors of the PTI USA LLC are American citizens, but contributions have been collected from individuals and the companies that are admittedly foreign nationals.

What if a party is foreign-aided?

The judgment had noted that under the 1962 Act, ‘foreign aided’ political party means a party which has been formed or organised at the instance of any government or political party of a foreign country; or is affiliated to or associated with any government or political party of a foreign country; or receives any aid, financial or otherwise, from any government or political party of a foreign.

It stated that where the federal government is satisfied that a political party is a foreign-aided party or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism, it shall make such declaration by notification in the official gazette.

“Within fifteen days of making a declaration under Clause (1), the federal government shall refer the matter to the SC whose decision on such reference shall be final. Where the Supreme Court upholds the declaration made against a political party under Clause (1), such party shall stand dissolved forthwith.

In case of prohibited funding

The court had declared that any contribution or donation which is prohibited under the PPO shall be confiscated in favour of the state in the manner as may be prescribed.

It had also referred to the relevant law, which says where the ECP decides that the contributions or donations, as the case may be, accepted by the political parties are prohibited under Clause (3) of Article 6, it shall, subject to notice to the party and after giving an opportunity of being heard, direct the same to be confiscated in favour of the state to be deposited in government treasury or sub-treasury.

During the hearing on August 1, 2017, former CJP Nisar observed that the penal consequence of a collection of funds through prohibited sources is confiscation and not disqualification of the party’s chief.

However, PML-N counsel Akram Sheikh had referred to the Arshad Lodhi case judgment in which a parliamentarian was disqualified for submitting a false affidavit.

Legal experts believe that after the Khawaja Muhammad Asif case, new jurisprudence has evolved wherein the courts examine the intention of any lawmaker before giving a declaration under Article 62 (1)(f) of the Constitution, whose punishment is a lifetime disqualification

The court in the Khawaja Asif case laid down an ‘objective criteria’ to test the honesty of lawmakers by declaring that Article 62(1)(f) cannot be applied to every omission or non-disclosure of assets.

“Mere omission to list an asset cannot be labelled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings,” said the judgment authored by Justice Faisal Arab.

Chaudhry Faisal Hussain advocate, who has appeared on behalf of PTI in this case, also said it is not a foreign funding case but a prohibited funding case and both have different penal consequences.

He said similar allegations of getting funds through prohibited sources are being faced by other major political parties. Therefore, the ECP must also examine the details of their accounts.

In the Faisal Vawda case, the court is also examining whether ECP is the court of law to issue a declaration under Article 62 (1) (f) of the Constitution.

If it is established that PTI received funds through prohibited sources then only a show cause would be issued to explain its position.

As the PTI brace for the ruling – that could potentially tank its political fortunes – with bated breath, it is anticipated that even if the case is over and done, the consequences would only be beginning as Imran Khan ups the ante against the electoral body he has accused of bias and renews calls for fresh protests against it on the eve of verdict's announcement.

Nonetheless, the beleaguered coalition government, smarting from a shocking defeat in Punjab at the hands of the former ruling party they muscled out from power just three months ago, has indicated they are not ready to rest on their laurels, adamant on turning the case into 'political albatross' for the PTI.

On the other hand, the PTI has denied the funds it raised were underhanded or illegal and has stressed that all other political parties should also be investigated for foreign funding, deploring the “discriminatory” treatment meted out to it.

It should be noted that the foreign funding case was filed by PTI founding member Akbar S Babar, who is no longer part of the party, alleging serious financial irregularities in the PTI’s funding from Pakistan and abroad.

On January 4 this year, an ECP scrutiny committee report unearthed that the PTI had concealed several accounts and around Rs310 million between 2008 and 2013 from the electoral body.

It had further disclosed that the party had received $44,000 from 88 foreign donors during this period.

The undisclosed accounts have been mentioned in a report by the State Bank of Pakistan. The scrutiny committee had also included its analysis of the bank accounts in the report.

Govt presses ECP to give verdict

The development came as constituent parties of the coalition government led by Pakistan Muslim League-Nawaz (PML-N) had been calling upon the ECP to announce the verdict in the case at the earliest.

Leaders of the ruling coalition from the Pakistan Democratic Movement (PDM) and Pakistan Peoples Party (PPP) on Friday met senior officials of the ECP, including the chief election commissioner (CEC), in an effort to convince the electoral body to announce its verdict reserved in the prohibited funding case involving the PTI.

Addressing a news conference after the meeting, PML-N leader and former prime minister Shahid Khaqan Abbasi said that the joint delegation spoke with the ECP officials, urging them to “decide the case of prohibited foreign funding as soon as possible”.

“The prohibited funding case has been ongoing for eight years,” he had said. “The election law says that if a party takes money from a foreign individual, it has to be declared.”

Subsequently, the PTI announced to file a ‘judicial reference’ against CEC Sikander Sultan Raja and other members of the ECP for allegedly violating the code of conduct.

Imran announces 'peaceful protest' outside ECP

Meanwhile, PTI chief and former prime minister Imran Khan continued his tirade against the electoral body Monday and announced to hold a peaceful protest outside of the ECP on Thursday, demanding Chief Election Commissioner (CEC) Sikandar Sultan Raja’s resignation.

Addressing the members at the PTI's national council meeting in the federal capital, he demanded that the election commission refrains from conducting the next general elections under any circumstances.

The party chairperson said that he will hold elections within his party after the general elections to ensure meritocracy.

The former prime minister said that he wanted electronic voting machines (EVMs) for free and fair elections but the chief election commissioner (CEC) tried every way possible to sabotage it.

"The ruling parties disagreed with holding elections through EVMs because they wanted to rig the elections. Before the by-elections in Punjab, our party was the only one preparing to stop the polls from getting rigged," he added.

A day earlier, the PTI chief had a day earlier formally directed his legal team to initiate the process of filing the reference against the CEC and ECP members for meeting a delegation of the ruling alliance and discussing the prohibited funding case against PTI with them.


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