THE Election Commission of Pakistan (ECP) decision in the prohibited funding case against the Pakistan Tehreek-i-Insaf (PTI) does not pose an imminent danger to the political party, though it may not bring glad tidings for party chairman Imran Khan in the days to come.

On the political front, the decision has given its arch-rivals ammunition that may help them launch a vilification campaign against the party, especially by “putting the ball” into the federal government’s court.

The government can wait for a proper reference from the commission or move on its own to declare the PTI “a foreign-aided party” if satisfied on the basis of available information on the decision.

For the time being, the commission that has show-caused the party will commence proceedings whether to impose the penalty of confiscating the funds, held to be declared as foreign funds, commented senior counsel Mansoor Usman Awan.

Confiscation of funds

Under the rules governing political parties, the commission can decide whether the contributions or donations, which a political party accepted, were prohibited under Article 6(3) of Political Parties Order (PPO-2002) and after giving an opportunity of hearing, can direct confiscation of the funds in favour of the state to be deposited in the government treasury, according to him.

“I believe there is a strong case for the confiscation of the party funds,” commented a senior counsel on condition of anonymity but said the judgment also carries a serious implication and may put the party head into deep trouble.

The party head cannot absolve him or hide behind the excuse that he was not responsible for the accounts, because he gave a “certificate or affidavit under his signature” before the ECP claiming the party did not receive any funds that may fall into the category of prohibited financing.

New round of litigation

But whatever the implication may have in store for the senior party members, the decision has opened up a new round of litigation before the superior courts since the PTI intends to challenge the issuance of show cause notice by the commission before the high court.

The Supreme Court will have a final word on party’s fate, because any such declaration by the federal government, if taken, will be subject to endorsement by the apex court that can uphold federal government’s declaration or reject the same but after a complete satisfaction of its own through proper hearing into the matter.

If the apex court upholds federal government declaration, then according to Section 15(3) of PPO-2002, the foreign-aided political party will stand dissolved forthwith. In addition, the members who contested elections on the tickets of the party will also be disqualified for the remaining term. But it is far-fetched idea as legally the ECP decision is “too weak” and any federal government move to declare the party foreign-funded will not be a prudent decision, according to him.

Danger not over

But Mr Awan believes the danger for party leaders is not over especially in view of the 2017 Hanif Abbasi case.

A three-judge Supreme Court bench had absolved Imran Khan of the allegations of corruption in that case but had held it was ECP’s duty to scrutinise accounts of political parties on the touchstone of Article 6(3) PPO, read in the light of Article 17(3) of the Constitution, according to him. The allegation that the PTI received prohibited funding can be declared by no one but the federal government, through a reference to the apex court, the judgment had explained, adding that the commission must act transparently, fairly and justly, without discrimination among different political parties seeking election symbols to contest the elections to the constitutional legislatures of Pakistan, it had declared.

The alleged falsity of the certificates signed by Mr Khan and submitted to the ECP about the party funds under Article 13(2) PPO is a secondary fact, ascertainable by a competent court after ECP gives its findings whether any prohibited funding has been received and collected by the party, the judgment had commented.

Advocate Faisal Fareed cited 2018 Khawaja Mohammad Asif case in which the Supreme Court had held that an elected member could not be disqualified for life by invoking Article 62(1)(f) of the Constitution unless dishonesty was established in an appropriate judicial proceedings.

Attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the parliament while incorporating Article 62 (1) (f) in the Constitution, the SC had observed, while setting aside the Islamabad High Court disqualification of PML-N stalwart Khawaja Asif under Article 62(1)(f) of the Constitution for not disclosing salary drawn from a UAE firm.

The certificates on part of Mr Khan before the ECP that no foreign funding was received by the party could have brought problems for him if he had furnished “unaudited accounts” before the ECP, according to the lawyer. Besides the affidavits were not deposited by the party head “on oath”, he said.

Intention of party head

Thus the superior courts will definitely go into the “intention of the party head” before handing down any damning penalty upon the party head, the attorney believed. Also, it would have to be established before the Supreme Court, in case any reference on part of the federal government landed into the court that the ECP decision was not biased, not based on any “political vendetta” and that the commission had not overstepped its jurisdiction.

Senior counsel Hafiz Ahsaan Ahmad Khokhar somehow agreed when he said as far as the endorsement certificate submitted by party head to the ECP was concerned, it would not have the same legal repercussion as that of an affidavit submitted in court of law.

Options in front of govt

In case the funding matter lands at the Supreme Court through a challenge to ECP’s decision, he said, the moot point before the court would be the words mentioned in law, the receipt of substantial or portion of foreign funding or the application of the Elections Act, 2017 with prospective or retrospective effect.

Section 204 of the Elections Act legally obliges a political party to provide complete information about the sources of fund to submit details of accounts to the ECP within 60 days from the close of a financial year with a consolidated statement of its accounts audited by a chartered accountant, including information of annual income and expenses, sources of its funds and assets and liabilities, with the declaration that no funds from any source prohibited under the Elections Act was received by the party.

Section 212 of the act explains that where the federal government is satisfied on the basis of a reference from ECP or information received from any other source that the 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 can, by a notification in the official gazette, make such declaration.

Within 15 days of making such a declaration, the government can refer the matter to the Supreme Court and if it upholds the declaration, such political party shall stand dissolved forthwith, he explained.

Section 212 of the Elections Act also speaks of legal consequences that where a political party is dissolved under Section 212, then any member of such political party, and if he is a member of the Parliament or a Provincial Assembly or a local government, will be disqualified for the remaining term to be a member parliament, provincial assembly and local government.

Published in Dawn, August 3rd, 2022