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Petitioner: Pakistan Tehreek-e-Insaf (PTI) through its Additional Secretary General Mr. Omer Ayub Khan VS Respondent: Election Commission of Pakistan and another
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb, Babar Sattar Title:Pakistan Tehreek-e-Insaf (PTI) through its Additional Secretary General Mr.
Omer Ayub Khan vs Election Commission of Pakistan and another Case No.: Writ Petition No. 2998 Of 2022 Date of Judgment:2023-01-11 Reported As: 2023 IHC 1, PLJ 2023 Islamabad 153, PLD 2024 Islamabad 1 Result: Petition Dismissed Judgment JUDGEMENT BABAR SATTAR, J. The petitioner has impugned the Fact Finding Report dated 02.08.2022 ("Fact Finding Report") issued by Election Commission of Pakistan ("ECP") for being in excess of authority and jurisdiction for making a declaration insinuating that Pakistan Tehreek-e-Insaf ("PTI") is liable to be declared a foreign-aided political party under section 2(c)(iii) of the Political Parties Order, 2002 ("PPO") and further holding that Chairman, PTI has failed to discharge his obligation under Article 13(2) of the PPO to file a truthful statement certifying that the party did not receive any funds from any prohibited sources. 2. Mr. Anwar Mansoor Khan, Sr. ASC, learned counsel for the petitioner, took the court through the factual background of the matter culminating in the Fact Finding Report. He initially sought to impugn the findings of fact included in the Fact Finding Report with a view to establish that such findings were perverse and incorrect. But he subsequently submitted that the ECP had issued a show-cause notice to PTI pursuant to the Fact Finding Report in terms of Rule 6 of the Political Parties Rules, 2002 ("Political Parties Rules"), to explain as to why prohibited contributions and donations ought not be confiscated in favour of the State. And the objections as to the factual observations made in the Fact Finding Report would be raised within such show-cause proceedings. He submitted that it would still remain for this Court to decide two questions. One, whether ECP exceeded its jurisdiction by making a declaration in the Fact Finding Report that the matter fell within the scope of Article 2(c)(iii) of PPO and thereafter forwarding the case to the Federal Government. And two, whether ECP exceeded its jurisdiction when it held that Chairman PTI had failed to discharge his obligation in terms of Article 13(2) of PPO. He submitted that in view of
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Article 15 of the PPO read together with Article 17 of the Constitution, the authority and jurisdiction to declare that a political party was a foreign-aided political party, as defined under section 2(c)(iii) of the PPO, fell within the domain of the Federal Government subject to scrutiny by the august Supreme Court, as had been held by the Apex Court in Muhammad Hanif Abbasi Vs. Imran Khan Niazi and 3 others (PLD 2018 SC 189). He submitted that the scrutiny of funds that formed the subject-matter of the Fact Finding Report related to a period prior to the promulgation of Elections Act, 2017. And while section 212 of the Elections Act, 2017, vested authority in the ECP to make a reference to the Federal Government against a political party on the basis that it is a foreign-aided political party, no such power was vested in the ECP under the PPO. Consequently, ECP's finding that the matter fell within the domain of section 2(c)(iii) and the direction to refer the matter to the Federal Government was liable to be expunged. In relation to question No.2, he submitted that the question of whether or not PTI had received prohibited funds was the subject-matter of show- cause proceedings, which were pending before ECP. Therefore, no declaration for purposes of determination with regard to Article 6(3) and 6(4) as well as Article 13(2) of PPO could be made against PTI and Chairman PTI, respectively, without affording the party and its Chairman an opportunity to be heard. Consequently, the declaration with regard to lack of truthfulness of the certification made by Chairman PTI or his failure to abide by his obligations under PPO was liable to be expunged. 3. Barrister Ahsan Pervez, learned counsel for ECP, submitted that the petition seeking judicial review of the Fact Finding Report was premature. The ECP had rendered the Fact Finding Report pursuant to powers vested in it under the PPO, which endowed ECP with the duty to scrutinize the sources of funding of political parties. Pursuant to findings recorded in such Fact Finding Report a decision had been reached to issue a show-cause notice to PTI pursuant to the scheme prescribed under Article 6 of the PPO read together with Rule 6 of Political Parties Rules. He submitted that ECP would afford PTI an opportunity to show cause as to why prohibited funds ought not be confiscated in favour of the State as contemplated under Rule 6 of the Political Parties Rules. During such proceedings PTI would have the opportunity to contest the factual determinations recorded in the Fact Finding Report. However, ECP had no authority to review its decision and consequently as part of the show-cause proceedings ECP would not sit in review of the impugned Fact Finding Report. However, to the extent that PTI were to succeed in establishing that contributions and donations received were not from prohibited sources, such contributions and donations would be excluded from the list of funding determined by ECP to be from prohibited sources as reflected in the Fact Finding Report and the show-cause notice. 4. Syed Ahmed Hassan Shah, ASC, appeared on behalf of respondent No.2, who had been impleaded pursuant to the order of this Court dated 28.09.2022 as a respondent. He supported the right of PTI to be afforded a fair opportunity to confront findings rendered by the ECP in the Fact Finding Report. And to the extent that PTI succeeded in convincing the ECP that the funding was received from sources which were not prohibited under PPO, there would be no charge remaining against PTI and no question of confiscation of any fund would arise. He submitted that as the Fact Finding Report only resulted in issuance of the show-cause notice contemplated under Rule 6 of Political Parties Rules read together with Article 6(3) and 6(4) of PPO, the instant petition seeking judicial review of the Fact Finding Report was premature. 5. We have been asked to undertake judicial review of the Fact Finding Report on the basis that declarations that form part of the Fact Finding Report are without jurisdiction for not being backed by law. Before we address the arguments of the learned counsel for the parties, let us consider the legal framework within which the reporting and scrutiny of finances of political parties is undertaken by the ECP.
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6. Article 17 of the Constitution guarantees the freedom of association as a fundamental right of citizens and Article 17(3) states that, "every political party shall account for the source of its funds in accordance with law." For purposes of the time period that forms the subject-matter of the instant petition, the law referred to in the said Article is the PPO, which has been succeeded by the Elections Act, 2017. 7. Before we move to provisions of the PPO, let us note that Article 219 of the Constitution identifies the duties of ECP and includes within such duties such functions as may be prescribed by an Act of Parliament. The scope of the authority vested in the ECP in relation to the PPO came before the august Supreme Court in Muhammad Hanif Abbasi Vs. Imran Khan Niazi and 3 others (PLD 2018 SC 189), which held that "the law envisaged by sub-Articles (2) and (3) of Article 17 of the Constitution, is the PPO which stipulates the reasonable restrictions to be complied by political parties, the sources of prohibited funding and the process available to the Federal Government when a political party is formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan or is a foreign aided political party." The august Supreme Court further held that while the PPO was promulgated as the Chief Executive's Order No. 18 of 2002, it fell within the protection of Article 270AA(2) of the Constitution and has the status of law in the context of functions to be performed by the ECP pursuant to Article 219(e) of the Constitution. 8. The PPO provides for regulation of political parties including, inter alia, their finances. Article 2(c) (iii) of PPO includes within the definition of 'foreign-aided political party' a party that "receives any aid, financial or otherwise, ... or any portion of its funds from foreign nationals." Article 3(4) of PPO identifies the restrictions imposed on political parties. One such restriction is that a political party must not be a foreign-aided political party. Article 4 of the PPO creates an obligation for each political party to formulate its constitution and include within such constitution the "criteria for receipt and collection of funds for the party." Article 6 of the PPO regulates the membership fee and contributions received by parties and relevant for our present purposes are Article 6(3) and 6(4), which state the following: 6(3). 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 the parties may accept contributions and donations only from individuals. 6(4). 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. 9. Articles 10, 11 and 12 of PPO regulate functioning of political parties, including convening of intra- party elections. Article 13 creates an obligation for every political party to submit to the ECP within 60 days of closure of each financial year, a consolidated statement of accounts audited by a Chartered Accountant which is to include the sources of its funds. Article 13(2) obliges the party head of the political party to certify that the statement of accounts contains an accurate financial position of the party and that the party has not received any funds from sources prohibited under the PPO. Article 14 renders the entitlement of a political party to be granted an election symbol contingent on its compliance with the requirement to convene intra-party elections and to furnish financial statements on an annual basis, in compliance with the requirements of Article 12 and Article 13 of PPO, respectively. Article 15 then deals with the dissolution of a political party and vests in the Federal Government the authority to declare that a political party is a foreign-aided political party or is otherwise operating in a manner prejudicial to the sovereignty or integrity of Pakistan. Such declaration is required to be referred to the Supreme Court for approval within 15 days of its making. Article 19 of the PPO delegates to the ECP the authority to enact rules for purposes of the Act, to be exercised subject to the approval of the President. 10. In exercise of authority under Article 19 of PPO, Political Parties Rules, 2002, were enacted. Rule 4 provides for submission of the statement of accounts in a prescribed form. Such statement is to
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include, inter alia, sources of funds received by the party. Rule 6, which is pertinent in view of the subject-matter of the instant petition, provides the machinery provisions for confiscation of prohibited funds and states that, "where the Election Commission decides that the contributions or donations, as the case may be, accepted by the political parties are prohibited under clause (3) of Article 6, it shall, subject to notice to the political party concerned and after giving an opportunity of being heard, direct the same to be confiscated in favour of the State ..." 11. The scope of ECP's authority under the PPO and Political Parties Rules was considered by the august Supreme Court in Muhammad Hanif Abbasi and it was declared that "the ECP itself is a supervisory body which exercises regulatory and administrative powers under the Constitution and the law". And further that "in exercise of its powers under Article 6 of the PPO read with Rule 6, the ECP has all the necessary authority to ask for and collect the requisite information and facts that enable it to decide and determine whether the contributions or donations accepted by a political party are prohibited under Article 6(3) ..." It was further clarified that the "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." On the question of when a declaration can be issued against a party head under Article 62(1)(f) of the Constitution for having filed a false affidavit under Article 13(2) of the PPO, the Apex Court held that "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) supra or is a foreign-aided political party in terms of Article 2(c) supra must respectively be addressed and determined by the competent forum. Subject to an adverse finding and corresponding penal action taken under the PPO, the issue of the falsity of the certificate under Article 13(2) would then be ascertainable as a secondary fact by a competent Court of law." It was further noted that "the ECP is duly empowered under the PPO and the Rules to proceed of its own motion to determine the question of receipt of contributions or donations from prohibited sources by a political party." 12. In view of provisions of the Constitution, the PPO and the Political Parties Rules, as enumerated by the august Supreme Court in Muhammad Hanif Abbasi, it is evident that the PPO is the law that regulates the manner in which political parties are to discharge their reporting requirements in connection with receipt of funds. And it is the ECP that has regulatory and supervisory control over such information and the duty to scrutinize it to ensure compliance with provisions of the PPO. The Political Parties Rules endow the ECP with an obligation to afford a political party an opportunity to be heard prior to taking any penal action against such party, once it forms a tentative view based on statement of accounts filed by such party that funding received by such party includes funding from prohibited sources. It is in this context that we need to determine the scope of the show- cause proceedings pending before the ECP. The position taken by the learned counsel for ECP in this regard, while being assisted by Director General (Law) ECP, appeared to us to be contradictory. On the one hand it was submitted on behalf of ECP that the petition was premature as the question of receipt of prohibited funds by PTI was pending adjudication before the ECP and final decision for purposes of Article 6(3) and 6(4) was to be rendered upon culmination of the show-cause proceedings. But on the other hand it was also submitted that the ECP had no authority to review its own decision and the Fact Finding Report included a decision to issue a show-cause notice to PTI, reaching which was a requirement of Rule 6 preceding the issuance of show-cause notice which could not be reviewed. And thus while PTI would be afforded a fair opportunity of hearing, the scope of such hearing would be limited to that prescribed by Rule 6 of the Political Parties Rules. 13. It is the requirement of Article 4 of the Constitution that for an action of an administrative body or tribunal to be clothed with legality the public authority must not have exceeded its statutory power. There was a time when within the jurisprudence on administrative law a distinction was
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drawn between errors of law that did not create a jurisdictional defect versus errors of law that did. The distinction has however been discarded over time. In English Law, for example, since Anisminic Ltd. vs. Foreign Compensation Commission (1969) 1 ER 208, the distinction between errors of law committed by tribunals that go to their jurisdiction and errors of law within their jurisdiction has largely dissipated. It is now understood that an error of law made by tribunal is an illegality that renders the decision a nullity. This principle was reiterated in Utility Stores Corporation of Pakistan Ltd. Vs. Punjab Labour Appellate Tribunal (PLD 1987 SC 447), wherein it was held that, "it is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction ..." 14. The right to be heard as part of requirements of natural justice is well entrenched in our jurisprudence. It has now been etched within our fundamental law by virtue of inclusion of Article 10A, which guarantees the right of every person to a fair trial prior to determination of his civil rights and obligations or imposition of any penalty. 15. The scope of the right to be heard came before the august Supreme Court in University of Dacca Vs. Zakir Ahmed (PLD 1965 SC 90), wherein it was declared that "from a careful review of the decisions cited before us it appears that wherever any person or body of persons is empowered to take decisions after ex post facto investigation into facts which would result in consequences affecting the person, property or other right of another person, then in the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case." 16. In Rahim Shah Vs. Chief Election Commissioner (PLD 1973 SC 24) it was clarified that "under Article 201 certiorari will issue to any person performing in the Province functions in connection with the affairs of the Centre, Province or Local authority. It is not necessary that the `person' acts in a judicial or quasi-judicial capacity. High Court will interfere if the act done or the proceedings undertaken is in violation of law or any established principle of law..." 17. Further section 24A of the General Clauses, 1897, imposes a duty on every public authority to act in a fair, just and reasonable manner. The scope of section 24A of the General Clauses Act, 1897, was clarified by the august Supreme Court in Messrs Airport Support Services Vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) wherein it was observed that the said section of law "is founded on the premise that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution." 18. Clauses (3) and (4) of Article 6 of PPO are penal provisions as they call for confiscation of property vested in a political party in favour of the State. It is thus that Rule 6 of PPO obliges the ECP to issue notice to the political party concerned and give such political party an opportunity to be heard before any final determination is made as to whether any contributions or donations accepted by the political party qualify as prohibited funds and are liable to be confiscated. The requirements of fair trial and due process include the right of a party upon whom punishment can be inflicted to know the case against it and to correct or contradict the material or evidence on the basis of which any preliminary view has been formed that such party has rendered itself liable to a
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punishment prescribed by law. The right further obliges the adjudicator endowed with the responsibility to make such determination to act in good faith and afford the party a fair opportunity to defend itself. The right to a fair trial and due process in an administrative proceeding does not necessarily mean that the party is to be administered an oath or is to be provided an opportunity to cross-examine witnesses converting such proceedings into a trial with all its formalities. But what it does mean is that the adjudicator has a basic obligation to extend fair treatment to the party and an opportunity to enable it to correct or contradict the findings or allegations prejudicial to such party. The adjudicator therefore must sit with an independent and open mind without any bias. This means that a just adjudicator must shut its eyes to all considerations extraneous to the particular case and must have no interest in the outcome of the case that is to be decided. And the outcome must flow from the merits of the case. 19. In view of these requirements of natural justice and right to fair trial and due process guaranteed by Article 10A of the Constitution, the obvious conclusion with regard to the status of the Fact Finding Report is that it constitutes tentative findings by ECP and not a decision that has been crystalized and formalized at this point. Given that the ECP has issued a show-cause notice to enable PTI to correct or contradict the findings in the Fact Finding Report, in the event that ECP sits with a decided mind it would be acting in breach of its obligations as an adjudicator and would be denying PTI the right to fair trial and due process. Forming a tentative view that a political party has received prohibited funds is a pre-requisite for the issuance of a show-cause notice. There would thus be no occasion for the ECP to issue a show-cause notice unless it forms such tentative or prima facie view. But the formation of such prima facie view does not make it a final decision. And any correction of such view during show-cause proceedings would not amount to a review of a prior decision. Any tentative view on the basis of which a show-cause notice is issued merges with the final decision rendered at the end of the show-cause proceedings. And any correction or revision of the view formed as a preliminary matter does not qualify as a review of the prior decision. A contrary understanding of how the adjudicatory process works would create a chicken and egg problem. As no show-cause notice could be issued by a public authority unless it forms a tentative view and has some basis to drag a party through show-cause proceeding under a threat of penalty. And if such tentative view were to be treated as a final decision, it would render the show-cause proceedings redundant and undermine the party's due process right under Article 10A of the Constitution. This question came before the august Supreme Court in Suo Motu Case No. 04 of 2010 (PLD 2012 SC 553) where one of the objections raised by the recipient of the show-cause notice under the Contempt of Court Ordinance, 2003, was that the judges who had decided that the show-cause notice ought to be issued ought not sit in judgment over the matter as that would fall foul of the right of the accused guaranteed under Article 10A of the Constitution. While rejecting the objection a seven-member bench of the august Supreme Court clarified the connection between the right to due process in the context of issuance of a show-cause notice and the rendering of the subsequent decision as follows: "[A] Judge applies his mind before issuing notice to the respondent and later is to form a prima facie opinion after preliminary hearing whether or not to frame a charge and proceed with the trial. If it is held that a Judge holding a trial after having formed a prima facie or tentative opinion on merits of a case violates a litigant's fundamental right guaranteed under Article 10A, it would lead to striking down a number of procedural laws and well established practices, and may land our judicial system into confusion and chaos; a Judge, who frames a charge in every criminal case, will stand debarred from holding trial of the accused; a Judge hearing a bail matter and forming a tentative opinion of the prosecution case would then be disqualified to try the accused;
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a Judge expressing a prima facie opinion while deciding a prayer for grant of injunction would become incompetent to try the suit." 20. The principle explained by the august Supreme Court in the…
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