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Understanding ECP judgment on PTI’s funding case

A strong ground on the basis of which the Judgment rendered by the ECP in the Foreign Funding case can be set at naught is whether it even possesses the attributes of being termed as a Court of Law - opines Barrister Pansota in a hard-hitting piece.

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Pakistan is a country that has a written Constitution. A country that is governed by codified law. It goes without saying that the right to vote and the right to form a political party is an inalienable right of every citizen as guaranteed by Article 17 of the Constitution of the Islamic Republic of Pakistan 1973.

But the million-dollar question is what if a political party is formed on the basis of any foreign aid or funding received from abroad? Are there any repercussions for the same? In writing this article I would also shed some light as to whether the findings of the ECP are legally sustainable as regards the foreign funding received by Pakistan Tehreek-e-Insaaf. These are some of the questions which I wish to address while I write this article.

It was not until 2014 when a former member of Pakistan Tehreek-e-Insaaf Mr. Akbar S. Babar approached the Election Commission of Pakistan by filing a Petition seeking the details of the foreign funding given to Pakistan Tehreek-e-Insaaf and seeking a declaration that Pakistan Tehreek-e-Insaaf is declared as a “foreign-funded”/foreign aided” political party and as a result of which it is banned as a political party and from taking part in any political activities and any foreign funding be confiscated.

Read more: PTI foreign funding case explained

The never-ending litigation

It is a well-established principle of equity that “Delay defeats Equity” or “Equity aids the vigilant and not the indolent” or “Vigilantibus, non dormentibus, jura subvenient”. It is often said that “Justice delayed is justice denied”. Successive hearings were conducted by the Election Commission of Pakistan however; the same was resisted by Pakistan Tehreek-e-Insaaf on one pretext or the other.

Successive Writ Petitions, and Appeals were filed by Pakistan Tehreek-e-Insaaf before the Supreme Court of Pakistan, Islamabad High Court, seeking to postpone, or delay the proceedings before the Election Commission of Pakistan on the pretext that the Election Commission of Pakistan should also conduct an inquiry and investigation into the foreign funding of other political parties such as the Pakistan People’s Party, the Pakistan Muslim League (N) and others rather than singling out Pakistan Tehreek-e-Insaaf only. Objections were even raised by Pakistan Tehreek-e-Insaaf regarding the composition of the Election Commission of Pakistan hearing the matter.

Even the Election Commission of Pakistan was stopped from deciding the matter within a period of “thirty days” as directed by the Islamabad High Court vide its Order dated 1st April 2022 passed in Writ Petition No 958/2022. The said order was challenged through an Intra Court Appeal by Pakistan Tehreek-e-Insaaf and a Division Bench of the Islamabad High Court vide its order dated 14th June 2022 set aside the order dated 1st April 2022 to the extent of deciding the matter within a period of “30 days”. All this culminated in delaying the proceedings even further.

Read more: IHC tells ECP to decide PTI’s foreign funding case in 30 days

What will be the outcome?

Since the time the matter has been taken up by the Election Commission of Pakistan the million-dollar question which has been the talk of the town is what would be the likely outcome/consequence of any foreign funding given to any political party i.e. does it lead to the banning of the political party or does it only lead to the confiscation of any funding?

Pakistani laws have all along prohibited foreign funding of political parties and election candidates. The prohibition, which was first spelled out in the erstwhile Political Parties Act (PPA) 1962, continued in the Political Parties Order (PPO) 2002 and has now been included in the present Elections Act 2017.

As per Article 17 (3) of the Constitution of the Islamic Republic of Pakistan 1973 “Every political party shall account for the source of its funds in accordance with law”. Chapter XI of the Election Act 2017 which is the governing law regarding elections in Pakistan deals with political parties.

Previously it was the Political Parties Order 2002 which dealt with elections. As per the language ordained in Article 204 (3) of the Election Act 2017 “Any contribution or donation made, directly or indirectly, by any foreign source including any foreign government, a multi-national or public or private company, firm, trade or professional association or individual shall be prohibited”.

As per the clear and explicit language ordained in Article 204 (3) it can be said that an absolute bar/restriction has been imposed upon any kind of foreign aid, funding, contribution, and donation. Furthermore, as per Article 204 (4) of the Election Act 2017 “Any contribution or donation which is prohibited under this Act shall be confiscated in favor of the Government in such manner as may be prescribed”.

Read more: Fawad Chaudhry schools media on PTI foreign funding case

A bare perusal of the above-quoted provisions of law would lead to the irresistible conclusion that although any kind of foreign aided funding is prohibited under the Election Act 2017 however; as per the clear and explicit language ordained in Article 204 (4) of the Election Act 2017 the possible effect or outcome of the same would only be “confiscation” of any contribution or donation rather than an imposition of a “ban” on a political party.

As per the language ordained in Article 204 of the Election Act 2017 the same does not provide for the word “banning” and it only provides for the term “confiscated”. It is a well-established principle of law that “Words are to be given their plain and ordinary meaning” and “Where there are two possible interpretations possible the one which favors the taxpayer/litigant shall be given preference or shall prevail”.

Any finding or interpretation given by the Election Commission of Pakistan would be contrary to the scheme and mandate of the said provision of law as the Election Commission of Pakistan cannot read into or look into something which the law does not provide for!

Discrimination of Constitution

A strong ground on the basis of which the Judgment rendered by the ECP in the Foreign Funding case can be set at naught is whether it even possesses the attributes of being termed as a Court of Law.

The Apex Court in numerous pronouncements such as Imran Ahmed Khan Niazi Versus Mian Muhammad Nawaz Sharif reported as PLD 2017 SC 265, Samiulllah Baloach Versus Abdul Karim Nousherwani and others reported as PLD 2018 SC 405, Sardar Yar Muhammad Rind Versus Election Commission of Pakistan reported as PLD 2019 SC 137, Allah Dino Khan Bhayo Versus Election Commission of Pakistan reported as PLD 2020 SC 591 has already held that for Article 62 (1) (f) to apply there has to be a declaration by a “Court of Law”.

 

Another strong ground on the basis of which the Judgment rendered by the ECP in the Foreign Funding case can be set at naught is on the basis of Article 25 of the Constitution of the Islamic Republic of Pakistan 1973 which provides for equality before the law.

As per the specific directions given by the Apex Court as well as by the Islamabad High Court, the ECP has only rendered its judgment to the extent of PTI rather than giving its findings across the board as regards foreign funding i.e. also in respect of the accounts of Pakistan Muslim League Nawaz, Pakistan People’s Party.

Another strong ground on the basis of which the Judgment rendered by the ECP in the Foreign Funding case can be set at naught is that it has not conducted any cross-examination on the persons mentioned in its findings. This by itself is a strong ground for setting the judgment of the ECP aside.

Read more: Foreign Funding Case: Is PTI out of troubled waters?

Is ECP court of law?

Another strong ground on the basis of which the Judgment rendered by the ECP in the Foreign Funding case can be set at naught is that the entire findings rendered by the ECP are based upon the Scrutiny Committees Report. No independent analysis has been conducted by the ECP itself.

In wake of the Foreign Funding Judgment, the Pakistan Tehreek-e-Insaaf has challenged the Judgment rendered by the Election Commission of Pakistan before the Islamabad High Court with the prayer to set the same aside.

I would like to conclude by saying that indeed any kind of foreign funding is prohibited under the laws of Pakistan however; the likely consequences of the same are “confiscation” of any such foreign funding rather than “banning” of the political party.

Read more: Achilles heel for PTI: The foreign funding case

Any contra interpretation would be a rather strict interpretation of the same and the same would be uncalled for! Even otherwise, since the ECP does not possess the attributes of being termed as a “Court of Law” it is highly likely that its findings on this sole ground alone may not sustain and the same may well be set aside by the Islamabad High Court.

The writer is an advocate high court practicing in Lahore and is a founding partner of Ahmed & Pansota (Advocates & Legal Consultants). He started his career with Cornelius, Lane & Mufti after doing Bar-at-Law from Inns of Court School Law, London, and was called to the bar at Lincolns Inn, London, in the year 2005.

Barrister Pansota also figures as a legal analyst in a weekly talk show called Zanjeer-e-Adal on Capital TV, and appears on other national TV channels. He also writes for various newspapers on current legal issues. He tweets @pansota1.

The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space. 

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