ISLAMABAD: The Islamabad High Court (IHC) on Wednesday dismissed Senator Syed Yousuf Raza Gilani’s petition against his defeat in the recent election for Senate chairman’s post.

The court pointed out that the Pakistan Democratic Movement (PDM) could remove Chairman Sadiq Sanjrani through a no-confidence move.

Reacting to the IHC’s decision, Pakistan Peoples Party (PPP) chairman Bilawal Bhutto-Zardari vowed to challenge the result of the election, which he termed “foul play”, at every appropriate forum.

Mr Gilani’s lawyer Senator Farooq H. Naek however told Dawn that an appeal against the order of the single-member bench would be filed before a two-member bench of the IHC by next week.

IHC says parliament’s proceedings can’t be challenged in court; PPP leader to file intra-court appeal

Dismissing the petition, IHC Chief Justice Athar Minallah observed that the parliament’s proceedings could not be challenged in the court. He termed the petition against the internal proceedings of the upper house and said it was not maintainable due to the constitutional bar.

Besides, the court ruled that an alternative option of tabling a no-confidence motion to remove Mr Sanjrani was also available to the PDM.

Mr Naek said Mr Gilani, a former prime minister, was nominated as a joint candidate of the PDM to contest the election against Mr Sanjrani.

According to the petition, the PDM had the required numerical strength to elect Senate chairman but rejection of seven votes deprived Mr Gilani of the majority of its constitutional right. The petition alleged that the presiding officer was biased and that the seven votes were rejected malafidely and illegally.

The seven voters had stamped the ballot papers on the name of Mr Gilani instead of the space in front of it.

Justice Minallah asked advocate Naek to assist the court over two crucial questions: “whether the validity of the election to the office of the Chairman of the Senate could be called into question and whether any other adequate remedy was available to the petitioner under the Constitution to remedy the alleged wrong without involving the judicial branch of the State.”

Mr Naek contended that the election process did not fall within the ambit of the bar under Article 69 of the Constitution. He also argued that no adequate remedy was provided under the law to correct the alleged wrong.

To support his contention, Mr Naek cited two judgements of the superior courts: one related to disqualification of the then prime minister Gilani by the Supreme Court and the other related to qualification of former president Asif Ali Zardari.

Deliberating upon the case of Mr Zardari, Justice Minallah noted that the apex court in that case examined Article 69 “in the context of a ruling of the Speaker under Article 62 (2) ibid. To the extent of the ruling of the Speaker given under Article 62(2) it was held that the same was not part of the parliamentary process.”

The court observed: “The Parliament is the supreme legislative organ of the State. It represents the people of Pakistan and maintaining its dignity, respect and independence is of paramount importance and a constitutional duty of other branches of the State…Any attempt by a court to interfere in the proceedings of the Houses by calling into question its validity is likely to undermine the dignity, prestige and independence of the Majlis-e-Shoora (Parliament) on the one hand while, on the other, it exposes the apex constitutional legislative forum to undesirable and unwarranted criticism.

“Any encroachment by the judicial branch in the realm of the validity of proceedings of the Majlis-e-Shoora (Parliament) inevitably has consequences, which adversely affects public interest.”

Referring to the claim of Mr Naek about the PDM’s numerical strength in the Senate, the chief justice wrote in the judgement: “It is the case of the petitioner that he was a joint candidate of the PDM which commands a majority in the Senate of Pakistan and that he ought to have been declared as a returned candidate because of the numerical strength. It has been asserted in the memorandum of the petition that the PDM has the support of 51 worthy Senators as against 47 who had supported Sadiq Sanjrani.

“It is thus obvious that the majority cannot only remove respondent no.6 [Sanjrani] but, simultaneously, elect the Petitioner to the office of the Chairman. If that is the case, then a democratic and adequate constitutional remedy is available to the Petitioner.”

According to Justice Minallah, the constitution provides the remedy to remove the Senate chairman through no-confidence move. Therefore, he dismissed the petition saying that even if there would be provisions for interference, he would prefer to exercise judicial restraint in this matter.

PPP’s reaction

PPP chairman Bilawal Bhutto-Zardari has said that his party believes in supremacy of the Constitution, which bars calling into question the proceedings of Parliament or the ruling of National Assembly speaker or Senate chairman. In a statement, the PPP leader said his party also respected independence of judiciary and fought for it in the past but the PDM candidate Gilani had challenged the decision of a presiding officer of the polling station in the Senate hall who rejected seven votes identifying them as the ones obtained by Mr Gilani.

Mr Bhutto-Zardari said: “The theft of Chairman Senate elections through foul play by a Presiding Officer is a litmus test for the system as it may get replicated in the future thus undermining the very credibility of the democratic institutions.”

He said the PPP would knock every door and raise the issue at every forum as this “electoral theft” would not be allowed to sustain and Mr Gilani would become Senate chairman because he was the genuinely and legally elected chairman.

Published in Dawn, March 25th, 2021