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ISLAMABAD: The Islamabad High Court (IHC) on Monday rejected a plea by Fawad Chaudhry, a former federal minister, challenging the appointment of Nisar Ahmed Durrani, a member of the Election Commission of Pakistan (ECP).
“It is not a case in which this court is inclined to exercise its jurisdiction under Article 199 of the Constitution,” observed Chief Justice Athar Minallah while dismissing the petition in limine.
He said the petition was not competent and, even otherwise, the high court would have exercised restraint because the Constitution had already prescribed the procedure for removal of a member of the commission from office.
Fawad Chaudhry, who had served as minister in the government of former prime minister Imran Khan, had resigned as member of the National Assembly a few months ago, but since the resignation was not accepted, he invoked quo warranto jurisdiction of the high court, challenging the appointment of Nisar Ahmed Durrani, one of the four ECP members besides Chief Election Commissioner (CEC) Sikandar Sultan Raja. The other three are Shah Muhammad Jatoi, Babar Hassan Bharwana and retired Justice Ikramullah Khan.
A three-page order issued by the Islamabad High Court on Monday explained that it was an admitted position that Nisar Ahmed Durrani was appointed as member of the commission pursuant to recommendations made by the Parliamentary Committee under Article 213 (2B) of the Constitution.
Article 215(2) of the Constitution, the order said, explicitly prescribes the manner in which a commissioner can be removed.
Article 215 deals with the term of office of a commissioner and members, who will hold office for a term of five years.
Sub-section 2 of Article 215 says the commissioner or a member will not be removed from office except in the manner prescribed in Article 209 (Supreme Judicial Council).
The court asked Abu Zar Salman Khan Niazi, who represented the petitioner, to satisfy it regarding the maintainability of the petition. He argued that Article 215(2) came into play only when a commissioner was accused of misconduct.
During the hearing the court also went through Article 215(2) of the Constitution and observed that if the argument raised by the counsel were accepted, the high court would be reading into the Constitution — something beyond its jurisdiction.
Constitutional protection
The order explained that Article 215(2) provides a constitutional protection to the commissioner that cannot be bypassed by the high court while exercising its constitutional jurisdiction.
Moreover, the power vested in the court under Article 199 has been expressly made subject to the Constitution.
In case the court was satisfied that the law had provided any other adequate remedy, it may refuse to exercise its jurisdiction.
The commission is a creation of the Constitution and this court ought to exercise restraint in exercising powers under Article 199, particularly when the manner regarding removal of a commissioner has been expressly spelt out under Article 215(2).
The IHC order recalled a 2013 Supreme Court judgement in the Ilyas Begum case, which held it was a settled law that what cannot be done directly, can also not be done indirectly. “The petition, therefore, is not competent.”
Published in Dawn, September 20th, 2022
