PTI 'premature' petition against ECP notice in prohibited funding case rejected

• IHC asks ECP to hear PTI arguments with "open mind".
• Court says possible that ECP might withdraw notice.
• IHC says PTI can approach court after ECP's final decision.

The Islamabad High Court (IHC) on Thursday dismissed Pakistan Tehreek-e-Insaf’s (PTI) petition against the ruling of the Election Commission of Pakistan (ECP) regarding the prohibited funding case, saying that it was "premature" at this stage.

"...we find that this petition is premature and not yet ripe for adjudication. The petitioner has been issued a show-cause notice to answer the tentative findings re breach of law recorded in the Fact Finding Report," the judgement mentioned.

In August 2022, the election commission issued a show-cause notice to the PTI after it concluded — based on the fact-finding report — that the party received funding from prohibited sources. The notice was later challenged in the IHC.

A larger bench of the IHC — comprising Chief Justice Aamer Farooq, Justice Miangul Hassan and Justice Babar Sattar — had reserved its verdict on January 11 after arguments were completed.

The judgement read that Khan has the right to raise all its objections to seek corrections or reversal of findings recorded in the report, including by raising any jurisdictional objections before the ECP during the show-cause proceedings with regard to findings recorded in excess of its authority.

"...the ECP would be under an obligation to consider all factual and legal assertions with an open mind and decide the same through a reasoned order in accordance with law and without being interested in reaffirming the findings in the [...] report or otherwise seeking to produce any predetermined outcome."

The court mentioned that as the report is tentative and will only be formalised after PTI is given a "fair opportunity" to record its statements, it is "not inclined to judicially review the preliminary findings regarding the truthfulness of the certificate furnished by Chairman PTI in terms of Article 13(2) of the PPO".

The high court also said that it is within the realm of possibility that the show-cause notice may even be withdrawn if PTI satisfies ECP that it received no prohibited funding.

The court said it is confident that as repositories of public authority in a country sustained by rule of law, the ECP and the federal government will not act in disregard of the rights of PTI and its chairman as guaranteed by the law and the Constitution.

"In the even[t] that PTI is aggrieved by the final decision rendered by ECP after conclusion of the show-cause proceedings, the petitioner will be at liberty to avail appropriate remedies under law, including the remedy of seeking judicial review before a constitutional court, if so advised. We dismiss the instant petition accordingly for being premature."

PTI can lose its election symbol

While speaking to Geo News, former ECP secretary Kanwar Dilshad termed the verdict “an important development” which can have several consequences for the party.

Dilshad said that PTI had approached the high court against ECP’s ruling in the prohibited funding case under sections 204 and 210 of the Election Act 2017 which allows the commission to seize funds.

When asked about the implications of the IHC verdict, Dilshad said the ECP can now withhold the assets of the party under the law.

The ECP can also withdraw the election symbol issued to the PTI.

Last hearing

During the hearing, the court had observed that the ECP’s responsibility was merely to do what the Constitution permitted — which was limited to the confiscation of funds.

While the ECP during the hearing claimed that it had no power to change its decision, the court had observed that should the PTI present in the court satisfactory evidence — proving the legitimacy of the funds — the amount would not be confiscated.

The PTI counsel had argued during that hearing that the ECP had declared it a “foreign-aided” party and had rejected the declaration of PTI chief Imran Khan false.

“Political parties’ finances are looked after by a chartered accountant,” he argued. “The ECP has targeted PTI.”

The chief justice had said that the ECP had not made any declaration in its report, “the decision of the ECP is sometimes called an order, sometimes a report and sometimes just an opinion. In my opinion, this was a fact-finding report,” he said.

However, the ECP’s representative insisted that it was not just a report but a decision.

“The ECP could not have issued a show-cause notice without giving a decision,” he said.

During a hearing of the case, IHC Chief Justice Aamer Farooq said: "Are you afraid that Imran Khan will be disqualified on this issue? The ECP will not make any declaration in this show-cause notice, nor will take criminal action against Khan. Its authority extends only to the extent of confiscation of funds.”

Moreover, the court in the previous hearing had also criticised the ECP for taking the matter to the federal government, as doing so had led to a number of cases being registered against PTI by the FIA.

Now, if the court rules in favour of PTI, the notice will be retracted and the cases against the party will be withdrawn. It is also likely that the court will advise the electoral body to reassess the matter.

PTI challenges ECP ruling

On August 10 last year, the PTI challenged the ECP’s ruling in the IHC, seeking annulment of the order in the prohibited funding case.

In his petition filed with the IHC, PTI Additional Secretary-General Omar Ayub asked the court to not only nullify the August 2 ruling, but also revoke the ECP's show-cause notice sent to PTI Chairman Imran Khan.

The petitioner said he was "grossly aggrieved" by the fact-finding report — which revealed that the PTI had obtained funds from foreign sources — and demanded that it be declared "perverse, incorrect and in excess of authority and jurisdiction".

In his petition, Ayub also asked the court to "declare that any action suggested by the ECP is beyond its authority and that no action can be taken on the basis of a fact-finding report".

The PTI also made the ECP a party in the case.

ECP verdict in prohibited funding case

On August 2, 2022, the ECP, in a unanimous verdict, announced that the PTI received prohibited funding. The case was earlier referred to as the "foreign funding" case, but later the election commission accepted the PTI's plea to refer to it as the "prohibited funding" case.

The commission found that donations were taken from America, Australia, Canada and the UAE.

The PTI received funds from 34 individuals and 351 businesses including companies, the ECP verdict stated.

Thirteen unknown accounts also came to light, said the commission in the verdict, adding that hiding accounts are a "violation" of Article 17 of the Constitution.

The funds were also in violation of Article 6 of the Political Parties Act.

Moreover, the ECP found that Khan submitted a false Nomination Form I and that the affidavit provided regarding party accounts was also not authentic.