SHC ends ban on NGOs’ foreign donations   

Sindh High Court in Karachi on Friday undid a ban imposed on Non-Governmental Organizations (NGOs) on receiving financial assistance from international donors.

A two-member bench headed by Chief Justice Ahmed Ali M Sheikh set aside the policy for regulation of organizations receiving foreign contributions issued vide notification of November 28, 2013.

M/s Marie Stopes Society had assailed the notification and the policy being devoid of any force of law.

The petitioner stated that in November, 2013, the Economic Coordination Committee (ECC) vide Notification No.I (5)INGO/05 introduced a policy for regulation of organizations receiving foreign contributions requiring any organization registered outside/inside Pakistan and desirous of utilizing foreign economic assistance to have prior registration with the government and, subject to concurrence, sign a Memorandum of Understanding MoU containing the information specified by the government.

The petitioner mentioned that it applied for registration in terms of the policy on March 6, 2014 but its case was allegedly placed in cold storage. On September 22, 2017 the petitioner stated it again applied for signing the MoU, however, the federal government in a summary manner did not approve the same, following which the petitioner on February 28, 2019, submitted an appeal under clause 7 of the policy but the same was also declined.

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The counsel for the petitioner submitted that the policy purports to determine the legal character and obligations of the organizations receiving foreign funding, issued through a notification, is, prima facie, an attempt by the Executive Branch of the State to legislate, which amounts to a violation of the constitution.

He further submitted that the policy itself recognizes the need for legislation and is nothing but a stop-gap arrangement, bereft of any force of law but is nonetheless being implemented so as to curtail the petitioner’s operations.

He argued that the Article 4 of the Constitution stipulates that no person can be compelled to do something or be hindered from doing something other than in accordance with law.

According to the counsel, the Policy is bereft of legal force and is ultra vires the Constitution in terms of impinging on Fundamental Rights.

While emphasizing on Article 4 of the Constitution, the counsel urged with vehemence that every individual has a right to be dealt with in accordance with law and no person can be compelled to do or hindered from doing so unless it is under the sanction of law.

He also contended that the Policy was issued pursuant to the decision of the Economic Coordination Committee of the Cabinet while it is settled law that the governmental decisions are to be taken by the Cabinet as a whole and not by a part thereof.

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Presenting the case of federation, Deputy Attorney General opposed the petition on the premises that the Article 90(2) of the Constitution allows the Prime Minister to perform his functions either directly or through Federal Minister, the ECC committee of the Cabinet (constituted pursuant to Rule 17(2) of the rules of Business, 1973), therefore, the Notification/Policy issued in pursuance of the decision of the ECC Committee was lawful.

The bench in its 11-page judgment authored by the Chief Justice observed it is a settled principle of law that the executive has no inherent power except that has been vested in it by the law, a source of power and duty.

The bench pointed out that it is an admitted position that the impugned Notification/Policy was framed/issued by the Economic Coordination Committee of the Cabinet sans Cabinet as a whole.

The bench observed, “Interestingly enough the Notification was issued in the November 2013 and till date no legislation for a regulatory framework for foreign economic assistance flowing outside governmental channels is enacted nor there anything on the record or submitted by the learned DAG that the Policy was placed before the Cabinet for decision/approval, as the case may be.”

The bench held that the impugned Notification/Policy of November 28, 2013, was a stop-gap and therefore is of no legal effect. Consequently, the bench declared, any action/step taken against the petitioner pursuant to the impugned Notification/Policy is declared to be without lawful authority and of no legal consequence.