Supreme Court’s judgment on foreign funding

There is a perception that the Supreme Court verdict announced on December 15 limits the powers of the ECP to scrutinize accounts of political parties. A deeper look at the verdict speaks otherwise. Instead of curtailing the powers of the ECP, the verdict emphatically empowers the ECP to regulate political parties under the law.

The issue of foreign funding of political parties emanates from the case I filed in the Election Commission of Pakistan in November 2014 against alleged illegal funding and corrupt practices in managing political donations by PTI leadership.

For over three years, the PTI and its leadership employed all the tricks in the world to dodge scrutiny of its accounts by the ECP. From questioning my locus standi or membership of the party to challenging the jurisdiction of the ECP to undertake scrutiny, the PTI thrice challenged the jurisdiction in the ECP and twice in Islamabad High Court. Proceedings were delayed on the flimsiest of grounds for months on end. At least 30 ECP orders have been defied ranging from submission of accounts to summons for appearance in person by the PTI Chairman and the Central Finance Secretary.

From November 2015 until February 2017, the PTI stalled proceedings in the ECP on the grounds that the October 8, 2015 ECP Judgment declaring its jurisdiction over the case was challenged in the Islamabad High Court albeit without any written restraining order. One of the arguments made by Imran Khan in his signed affidavit before the IHC stated that “accountability cannot be done based on a complaint filed by a citizen of Pakistan” and “there is no concept of scrutiny by the public and there is no concept of the public filing complaint based on their scrutiny.”

The IHC remanded the case back to the ECP in February 2017 to review jurisdiction and locus standi or my membership of PTI. On May 8, 2017, the ECP through another unanimous decision reasserted its jurisdiction over the case as well as my locus standi with words “there is not an iota of reference to the effect that he (ASB) has been ousted from the party and the membership thereof…(and) we…have no other choice but hold that the petitioner is still member of the party and has locus standi under Article 5(4) of the PPO 2002.”

Again the PTI challenged the May 8, 2017 ECP verdict in the Islamabad High Court which remains un-adjudicated to this day. Meanwhile, as a riposte to the PTI challenge in the Panama Case, the PML (N) filed cases against Imran Khan seeking his disqualification on three grounds. One of the grounds cited was the alleged false certificate filed by him while submitting accounts that included funds from allegedly illegal and prohibited sources.

Almost the entire evidence in the foreign funding case filed with the ECP was used in support of the case regarding alleged illegal funding in the Supreme Court. A closer look of the Supreme Court verdict on foreign funding reveals reiteration of the almost unfettered constitutional powers to the ECP long challenged by PTI to scrutinize finances of political parties. It also empowers the ECP to regulate political parties and make their leadership accountable for any wrongdoings.

On page 57, Para 42 of the verdict, the judgment states that “Specific and complete power has been conferred upon the ECP to decide whether contributions or donations accepted by a political party are prohibited.” On page 59, Para 45 of the verdict regarding PTI’s refusal to provide banks statements and other financial information and data to scrutinize its accounts, the Supreme Court verdict states that “the ECP must necessarily possess the power to collect facts, information and data that enable it to properly and effectively perform such duty. Such capability represents the constitutional and inherent legal power of the ECP.”

On page 60, Para 47, on the PTI objection about regulatory powers of the ECP, the verdict states “We find it hard to fathom the contention that the intention behind the PPO and the Rules is to take away the administrative and regulatory power of the ECP derived from the Constitution, to call for any record, information or data from a political party to ascertain the sources of its contributions and donations; and to place such power exclusively in the hands of a party appointed chartered accountant.”

On page 61, Para 48 regarding the PTI claim that published statement of accounts are ‘past and closed transaction,’ the verdict states that “We are not persuaded to hold that the principle of past and closed transaction would be attracted to the audited statements of accounts of a political party which have been duly published. This is because neither the PPO nor the Rules contain a provision imposing a time bar on action being taken by the ECP under Article 6(3) or Rule 6.”

On page 62, Para 49 of the verdict regarding the PTI claim that once a chartered accountant has verified party accounts and the same published in the official gazette, it cannot be questioned by the ECP or any third party. The verdict states “to our mind the publication of accounts of a political party have the effect of placing these (statements of accounts) in the public domain and thereby make an invitation for bona fide comment from the concerned persons to apprise and intimate the ECP if such statement of account are not in accordance with law or contains contributions and donations from prohibited sources.”

On page 62, para 50 regarding the PTI contention that no third person can initiate inquiry into the accounts of a political party or there is a time bar to do so, the verdict states “The above mentioned power of the ECP under Article 6 of the PPO read with Rule 6 is in our view a continuous supervisory power which may be exercised at any time by the ECP, either upon an application by a third party or suo moto.”

On page 63, Para 51, the verdict reiterates that “the ECP has the jurisdiction to determine whether a political party has received contributions or donations from prohibited sources under Article 6(3) of the PPO read with Rule 6, which jurisdiction it can exercise at any reasonable point in time even after the allotment of symbol to a political party but upon receipt of reliable and verifiable information from a third party or on its own motion…We consider it reasonable, if the record or information that precipitates the said penal action against a political party is entertained within five years of the date on which its objected account was published in the official Gazette.”

On page 66, Para 55, regarding legal action against the head of political party for submitting a false certificate before the ECP, the verdict states “before any finding by a Court of law can be given as to whether a certificate issued by a head of a political party under Article 13(2) of the PPO is false or not, the question whether that political party has either received contributions or donations prohibited under Article 6(3) or is a foreign aided party in terms of Article 2 (c) must be addressed and determined by the competent forum. Subject to an adverse finding and corresponding penal action taken under the PPO, the issue of falsity of the certificate under Article 13(2) would then be ascertainable as a secondary fact by a competent Court of Law.”

In summary, the Supreme Court verdict on foreign funding has conclusively rejected all the arguments made by PTI to-date challenging the powers of the ECP to investigate, probe, collect data, and scrutinize PTI accounts either on third party intervention or suo moto.

The verdict has also conclusively removed all hurdles and PTI delaying tactics to stall ECP scrutiny of its accounts under the foreign funding case filed in November 2014.

As against the perception of doubts, the historic Supreme Court verdict on foreign funding will go a long way in transforming political parties from mostly individual fiefdoms into transparent and accountable public institutions, the first step on which to build a responsive and accountable democratic system.

  (The petitioner in PTI foreign funding case is PTI founding member)