ISLAMABAD: The Islam­­abad High Court (IHC) on Thursday dismissed a PTI petition challenging the ECP’s report in the prohibited funding case as “premature” and “not yet ripe for adjudication”.

An IHC division bench comprising Chief Justice Aamer Farooq, Justice Miangul Hassan Aurangzeb and Justice Babar Sattar announced the judgement on the petition filed by the Pakistan Tehreek-i-Insaf against the Aug 2, 2022 fact-finding report issued by the electoral watchdog on the party’s prohibited funding.

While presenting his arguments, PTI’s counsel Anwar Mansoor Khan narrowed down the focus on two questions; one, whether the Election Commission of Pakistan had exceeded its jurisdiction by declaring that the matter fell within the scope of Article 2(c)(iii) of Political Parties Order (PPO) before forwarding the case to the federal government. And two, whether the watchdog exceeded its jurisdiction when it held that PTI chairman had failed to discharge his obligation in terms of Article 13(2) of PPO related to filing a truthful certificate. He submitted that scrutiny of funds related to a period prior to the promulgation of Elections Act, 2017. And while Section 212 of the Act vested authority in ECP to move the government against a political party on the basis that it is a foreign-aided party, no such power was vested in the ECP under the PPO.

Consequently, he argued, the ECP’s finding that the matter fell within the domain of section 2(c)(iii) and the direction to refer the matter to the government was liable to be expunged.

He then submitted that the question of whether or not PTI had received prohibited funds was the subject-matter of show-cause proceedings, which were pending decision before the ECP.

While quoting PPO articles, he argued that the declaration about lack of truthfulness of the certification made by the PTI chief or his failure to abide by his obligations was liable to be expunged.

ECP counsel Ahsan Pervez said PPO endowed the watchdog with the duty to scrutinise the sources of funding.

He argued that ECP had decided to issue the show-cause notice to PTI pursuant to the scheme prescribed under Article 6 of the PPO read with Rule 6 of Political Parties Rules.

He said ECP would afford PTI an opportunity to show cause as to why prohibited funds ought not be confiscated, adding that PTI during the hearing could contest the “factual determinations” recorded in the fact-finding report.

The court observed that PPO is the law that regulates the manner in which political parties are to discharge their reporting requirements about receipt of funds. The ECP, it said, enjoys regulatory and supervisory control over such information and has the duty to scrutinise it to ensure compliance with PPO’s provisions.

According to the judgement, the fact-finding report was not a declaration but a tentative assessment and “forming a tentative view that a political party has received prohibited funds is a pre-requisite for the issuance of a show-cause notice”.

The bench concluded that the PTI’s petition was “premature” and not yet ripe for adjudication.

While referring to the show-cause notice, it ruled that the petitioner will… have a right to raise all its objections to seek the correction or reversal of findings recorded in the fact-finding report.

“Once we have found that the findings in the Fact Finding Report are tentative and will only be formalised after the show-cause proceedings affording PTI a fair opportunity to be heard, we are 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 verdict states.

The court observed that Elections Act empowers the ECP to file a reference with the federal government for dissolution of a party if it believes that the party is foreign-aided or otherwise working in a manner prejudicial to Pakistan’s sovereignty or integrity.

The bench said, “We are 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 Chairman PTI as guaranteed by the law and the Constitution”.

The court, however, suggested that in case PTI felt aggrieved of any decision of the ECP or the government it can avail “the appropriate remedies under law, including the remedy of seeking judicial review before a constitutional court, if so advised”.

Published in Dawn, February 3rd, 2023

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