Legal experts believe that the alleged foreign funding case against the ruling Pakistan Tehreek-i-Insaf (PTI) is widely mispresented and misunderstood. Technically, this case is about prohibited funding not foreign aid as media and some anti-government critics are terming it to be.
The Election Commission of Pakistan (ECP) has ordered to conduct hearing of the case on a daily basis after the joint opposition submitted an application, urging the Chief Election Commission (CEC) to conclude the case at the earliest.
Well done Usman Dar. Brilliant explanation on PTI foreign funding case.
— Shoaib Khan Sudozai (@DrShoaibSudozai) November 21, 2019
PTI’s founding member Akbar S. Babar had filed the case in 2014, alleging that nearly $3 million in illegal foreign funds were collected through two offshore companies and that money was sent through illegal ‘hundi‘ channels from the Middle East to accounts of ‘PTI employees’. He had also alleged that the foreign accounts used to collect funds were concealed from the annual audit reports submitted to the ECP.
The case became relevant in the current political context when opposition parties have apparently failed to achieve the intended objectives through a Long March led by Maulana Fazlur Rehman. Analysts believe that the opposition now wants to put more pressure on the government by creating a context in which it can also influence the ECP and courts. In this regard, some factions of media are creating unnecessary hype to create a narrative as if PTI was funded by the Jewish lobby or any other anti-Pakistan force.
— Radio Pakistan (@RadioPakistan) November 23, 2019
Foreign Funding Case: Supreme Court’s Landmark Judgment
It is worth noting that 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 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 the case on December 16, 2017, to the ECP for a probe.
If PTI took only funds from individuals, including foreign nationals, then there was no infraction of law as was clear from a plain reading of Article 6(3) of PPO 2002 and elaborated in detail above. https://t.co/aD4pYPRgmg
— Dr. Ikramul Haq (@DrIkramulHaq) November 20, 2019
The judgment had noted that it is the duty of the ECP to scrutinize 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.
The PML-N 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.
Mr. Akram 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.
The PML-N’s lawyer wanted the court to disqualify Imran Khan for not being honest and truthful. “These certificates make misdeclaration of fact and thus the respondent (Imran Khan) has proven himself to be not sagacious, righteous, honest or ameen. 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 organized 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.
Foreign funding case: If found guilty, PTI may only face confiscation of funds. https://t.co/QYqy2c0mMZ
— Hasnaat Malik (@HasnaatMalik) November 22, 2019
Rather, the allegation is that PTI has been receiving financial contribution 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.
Foreign Aided Political Party
The judgment had noted that under 1962 Act, ‘foreign aided’ political party means a party which has been formed or organized 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.
Moreover, the court noted that “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.”
What if the Party Receives Prohibited Funding?
The court had declared that any contribution or donation which is prohibited under the PPO shall be confiscated in favor 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 favor of the state to be deposited in government treasury or sub-treasury.
Future of PTI
The judgment had said alleged falsity of the certificates issued by Imran under Article 13(2) of the PPO is secondary fact, ascertainable by a competent court of law after the ECP gives its findings whether any prohibited funding has been received and collected by the PTI in terms of Article 6(3) of the PPO.
Now the ECP is hearing the matter to determine whether the PTI got funded through prohibited sources. During the hearing on August 1, 2017, former CJP Nisar had observed that the penal consequence of a collection of funds through prohibited sources is confiscation and not disqualification of party’s chief.
However, the PML-N counsel Akram Sheikh had referred Arshad Lodhi case judgment in which a parliamentarian was disqualified for submitting a false affidavit.
— Dunya News (@DunyaNews) November 23, 2019
Legal experts believe that after Khawaja Muhammad Asif’s case, new jurisprudence has been evolved wherein the courts examine the intention of any lawmaker before giving declaration under Article 62 (1)(f) of Constitution, whose punishment is lifetime disqualification.
The court in 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 labeled 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.
Read more: PTI’s foreign funds to be audited
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.