Monday Jun 27 2022

PTI’s foreign funding case: What could ECP decide?

A file photo of the Election Commission of Pakistan building, — Facebook
A file photo of the Election Commission of Pakistan building, — Facebook

Pakistan has a written constitution and 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. But the million-dollar question is what if a political party is formed on the basis of foreign aid or funding received from abroad?

In 2014, a former member of the PTI, Akbar S. Babar, approached the Election Commission of Pakistan (ECP) by filing a petition seeking the details of the foreign funding given to his party. He further sought a declaration that the PTI be declared a “foreign-funded/foreign aided” political party and as a result be banned from taking part in any political activities.

As the ECP probed the foreign funding case, the PTI filed writ petitions and appeals before the Supreme Court of Pakistan and the Islamabad High Court seeking to delay the proceedings on the pretext that the Election Commission should also conduct an inquiry and investigation into the foreign funding of other political parties, such as the PPP, the PML-N and others, rather than singling out only the PTI.

Objections were even raised by the party regarding the composition of the ECP that was hearing the matter.

When the ECP was directed to decide PTI’s foreign funding case within 30 days, by the Islamabad High Court in April, the said order was challenged through an intra-court appeal by the PTI. In June, a division bench of the Islamabad High Court set aside its earlier order that time-barred the ECP.

But all this kept culminating in delaying the proceedings even further.

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? 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 to political parties and election candidates.

The prohibition, which was first spelt out in the erstwhile Political Parties Act (PPA) 1962, continued in the Political Parties Order (PPO) 2002 and has now been included in the Elections Act 2017.

As per Article 17 (3) of the constitution: “Every political party shall account for the source of its funds in accordance with the law.” While as per 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.”

With 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 favour of the government in such manner as may be prescribed.”

A bare perusal of the above-quoted provisions of law would lead to the conclusion that although foreign-aided funding is prohibited under the Election Act, however the possible effect or outcome of the same would only be “confiscation” of any contribution or donation rather than the imposition of a ban on a political party.

It is a well-established principle of law that words are to be given their plain and ordinary meaning and where there are two interpretations possible, the one which favours the taxpayer/litigant shall be given preference.

Pansota is an advocate of the high court, practising in Islamabad. He tweets @pansota1