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September 28, 2022
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What does the ECP ruling mean for the PTI? Legal experts weigh in

Over seven years after the case was filed, the Election Commission of Pakistan (ECP) ruled on Tuesday that the PTI did indeed receive prohibited funding and issued a show-cause notice to the party.

The notice seeks a response from the PTI “as to why the aforementioned funds may not be confiscated”. Besides, the order also directs for the initiation of “any other action under the law, in the light of this order of the Commission”.

So what could this further action be? Here’s what our legal experts and political pundits have to say:

Lawyer Abdul Moiz Jaferii

The ECP has finally decided what should have been an open and shut case, after several years of delays caused by various interventions, both legal and political.

In a nutshell, the ECP says the PTI has received prohibited funding, such as from foreign nationals and companies. It has given the party a show cause notice, asking it to explain why these funds may not be confiscated.

In a country where political leaders have been outed as having received funding from Osama bin Laden, and where investigations led by the Supreme Court have found that an entire generation of politicians were bankrolled by the ISI, this should be the end of the matter.

However, in the finding given by the ECP, there is the necessary corollary — because as per law, a party leader must promise that his books are in order every year, and because the PTI’s books are so clearly not in order, its leader has promised falsely.

And in a country where you don’t get disqualified for being funded by intelligence agencies or by Osama bin laden, but you are knocked out for having ‘unwithdrawn receivables’ because you are less than the standard of honesty required by the Constitution, this is the red flag.

If the rule of law was consistent, and if the Supreme Court ousted Nawaz Sharif correctly on being less than Sadiq and Ameen, then the same standard applied today would land Imran Khan in hot water.

Yet there is already no uniform standard, which the Khwaja Asif case proves. After the Islamabad High Court said it was bound to follow the Supreme Court’s precedence in the Nawaz Sharif case and disqualified Khwaja Asif for a procedural error of mis-declaration, the Supreme Court reversed track and applied a newer standard where immaterial errors were now not automatic disqualifiers.

The rule of law is inconsistent, the verdicts of courts are inconsistent. As such, all that is important from today is that those that are very consistent now have a hook to try and hang another former prime minister on — based on an understanding of righteousness they inserted into the Constitution for exactly this eventuality, which no democrat had the brains or heart to remove.

Political analyst Fauzia Yazdani

Article 6 of the Political Parties Order (PPO) 2002, elaborates who can be a donor/contributor to a political party, what is prohibited funding, and what happens to prohibited funding. In short, no foreign national, government or agency can fund a political party in Pakistan. If prohibited funding is proven as per PPO Article 6(4), the said funds are to be confiscated by the state.

The PTI’s case, whose ruling was announced by the ECP earlier today, was about prohibited funding that lingered on for over seven years.

Yet the judgement is the weakest it could have been.

Funds have been proven to have come from undisclosed and prohibited sources. Once proven, they should have been ordered to be confiscated by the state — which is not the case; rather another show cause notice has been issued to explain it further. This will be played up by the PTI’s social media team and pressure will increase for the Chief Election Commissioner to resign.

Linked to prohibited funding is Article 13 of the PPO that requires political parties to submit audited financial accounts every year, which are to be certified by the head of the political party.

In this case, that certification has also been adjudged as false. This goes against Article 62 of the Constitution for a member of parliament to be Sadiq and Ameen. Secondly, the firm that undertook the audit should also be penalised and placed under scrutiny.

The federal government has a ripe case in hand to file against the PTI on the following counts:

  • File a reference in the Supreme Court against Imran Khan under Article 62. It’s time for the Supreme Court to consciously review its earlier judgement of declaring Imran Khan Sadiq and Ameen.
  • File a reference with the ECP to initiate fiscal inquiry for funds received post 2013, in line with the *Financial Times* story.
  • Initiate an inquiry against the auditing firm for intellectual impropriety.

Barrister Asad Rahim Khan

As regards the PTI, the ECP has confined the scope of its ruling to confiscation of funds under Article 6 of the PPO and Rule 6(3) of the PPR, which will require a subsequent hearing.

It has nowhere held that the PTI falls under the express prohibition of a ‘foreign-aided party’ — which would have been attracted if it had received such funds from a foreign government or political party.

It is again a ‘foreign-aided party’ that merits dissolution under Article 15 of the PPO, and the ambit of which, again, the PTI doesn’t fall within as a result of this ruling. The distinction between receiving prohibited funds and functioning as a foreign-aided political party has already been settled by the Supreme Court in Hanif Abbasi vs Imran Khan.

When it comes to Imran Khan, the ECP has squarely taken issue with his filing inaccuracies in his certificate, declaring that the party was operating as per Pakistani statutes. It remains to be seen, however, whether this constitutes an intentional misdeclaration — the Supreme Court has laid down in its recent jurisprudence that it is the intention of the lawmaker that is considered, and not just the fact of omission, before warranting a declaration of dishonesty or otherwise.

That declaration, in any event, may only be issued by a court of law under Article 62, and not the ECP.

Lawyer Mirza Moiz Baig

With the ECP concluding that the PTI received foreign funding and asking the party to show cause as to why such funds should not be confiscated, the PTI’s legal woes are far from over.

In addition to the confiscation under Article 6 of the Political Parties Order 2002, Article 2 of the same law defines a “foreign-aided political party” as a party that “receives any aid, financial or otherwise, from any government or political party of a foreign country, or any portion of its funds from foreign nationals”.

Article 15 of the PPO states that where the federal government is satisfied that a political party is a “foreign-aided party”, it shall make such a declaration and within 15 days, refer the matter to the Supreme Court. If the court upholds the declaration, such party shall stand dissolved.

While Article 15 stipulates a detailed mechanism before a party may be dissolved, given the political tensions that have engulfed the country, the federal government is unlikely to not explore this option, thus, thrusting the court in the midst of a political storm once again.

Most importantly, however, the ECP’s decision, in paragraph 46 thereof, observes that PTI Chairman Imran Khan’s declarations and statements with respect to his party receiving funds in line with all applicable laws, are inaccurate and inconsistent with account information.

Paragraph 46 thus gives rise to questions as to whether the party chairman continues to remain honest and truthful in terms of Article 62(1)(f).

It would, therefore, be unsurprising if the PML-N and other political parties approach the courts to declare that Imran Khan is no longer honest and truthful and should therefore be disqualified as a parliamentarian.

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