Daily Times

Article 17 (3) of the Constitution, Articles 3, 4, 5 and 6 of Political Parties Order 2002, Section 200,204, 207, 210, 212, and 2013 of Election Act 2017 and Rule 160 of Election Rules 2017 precisely deal with the situation and state the process of establishment of political parties, their membership fee, contributions and donations, information about the sources of funds, confiscation of prohibited funds and dissolution of a political party and its effect of dissolution.

Every political party shall account for the source of its funds in accordance with the law. Section 200 of Election Act 2017 allows it shall be lawful for anybody of individuals or association of citizens to form, organize, and continue or set up a political party. Section 200 of Election Act 2017 states that every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party or be otherwise associated with a political party or take part in political activities or be elected as an office-bearer of a political party.

According to Political Parties Order 2002, a member of a political party can pay a membership fee as provided in the party’s constitution and can also make voluntary contributions towards the party’s funds. However, any contribution made, directly or indirectly, by any foreign government, multinational or domestically incorporated public or private company, firm, trade or professional association shall be prohibited and any contribution or donation which is prohibited under this Order shall be confiscated in favour of the State in the manner as may be prescribed.

Section 204 of Election Act 2017 permits with certain conditions that a member of a political party can pay a membership fee, if provided in the political party’s constitution and can also make contributions or donations towards the political party’s funds. However, the fee, contribution or donation made by a member or a supporter of a political party shall be duly recorded by that political party.

The section further explains that any contribution or donation made, directly or indirectly, by any foreign source including any foreign government, multi-national or public or private company, firm, trade or professional association or individual shall be prohibited and any contribution or donation which is prohibited under this Act shall be confiscated in favour of the government.

Section 204 of Election Act 2017 legally obliged a political party to provide complete information about the sources of funds to submit details of accounts to the Election Commission within sixty days from the close of a financial year with a consolidated statement of its accounts audited by a Chartered Accountant including information of annual income and expenses, sources of its funds and assets and liabilities with declaration no funds from any source prohibited under Election Act received by a political party.

Section 212 of Election Act 2017 further explains that where the Federal Government is satisfied on the basis of a reference from the Election Commission or information received from any other source that a political party is a foreign-aided political party or has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is indulging in terrorism, the Government shall, by a notification in the official Gazette, make such declaration. (2) Within fifteen days of making a declaration under sub-section (1), the Government shall also within fifteen days of making a declaration refer the matter to the Supreme Court, and where the Supreme Court upholds the declaration made against the political party such political party shall stand dissolved forthwith.

Section 212 of Election Act 2017 speaks for the legal consequences that where a political party is dissolved under section 212, then any member of such political party, and if he is a member of the Parliament or a Provincial Assembly or a local government, he shall be disqualified for the remaining term to be a member Parliament, Provincial Assembly and local government.

The Election Commission being regulator of political parties has vast legal powers to take action against a political party, who is found as foreign aided political party can recommend action through a reference to the federal government under Election Act 2017. However, in the present case, instead of applying the Election Act 2017, the Election Commission retained their other legal options and decided the complaint only under Article 6 (3) of Political Parties Order 2002, by issuing a show cause notice to a political party for confiscation of such funds. However, such punitive action taken under the Election Act 2017 would be subject to the decision of Supreme Court.

Any political party aggrieved by the order of Election Commission can challenge the same before the Supreme Court. The moot point before the Supreme Court would be the words mentioned in law, the receipt of substantial or portion of foreign funding or the application of Election Act 2017 with prospective or retrospective effect in case the order of Election Commission would be challenged before Superior Courts. However, in the present case as only a show cause notice has been issued by Election Commission after the complaint proceedings that’s why the prohibited funding which is proven on record and obtained against the law should not be confiscated, therefore there would be a little chances of success against only issuance of show cause notice before the court of law until some other important and substantial questions of law would be agitated and brought before the attention and determination of Superior Court.

The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: hafizahsaan47@gmail.com.