The Islamabad High Court (IHC), Friday turned down Senator Yousaf Raza Gilani’s intra-court appeal (ICA) challenging the rejections of seven votes in the chairman Senate elections.

A division bench of Justice Aamer Farooq and Justice Tariq Mahmood Jahangiri announced the decision, which it had reserved after hearing the arguments in the ICA filed by Pakistan Peoples Party (PPP) leader and Senator Yousaf Raza Gillani against the IHC single bench’s decision a day ago. The single bench had rejected the PPP leader’s petition challenging the result of the elections for the chairman Senate.

The court said it has no jurisdiction to interfere in the Parliamentary proceedings, adding even if the appellant felt aggrieved of being declared unsuccessful candidate due to an erroneous ruling of the Presiding Officer then he had the remedy of moving a resolution in the Senate for seeking vote on the same and whoever had the majority would have decided the fairness of the election process.

The court said that like many other countries, the constitutional scheme of Islamic Republic of Pakistan (Pakistan), is based on trichotomy of power viz that there are three organs of the State; the legislature, the executive, and the judiciary. This aspect of the Constitution and our system has been reiterated by the superior courts time and again; reliance is placed on case reported as “Ziaur Rehman Vs The State” (PLD 1973 SC 49).

It also said the underlying principle of this constitutional aspect of the governance in Pakistan means that no organ of the State should encroach on the domain and powers of the other State organ; however, judiciary though, as such, cannot encroach upon the powers and functions of the Legislature and/or Executive but has unique feature of exercising power/jurisdiction to check the actions/inactions of the executive by means of judicial review.

“This jurisdiction has been granted to the superior courts in Pakistan under Article 199 of the Constitution (in case of High Courts) and under Article 184 (in case of the Supreme Court of Pakistan). The possession of jurisdiction of judicial review by the courts does not mean a “blanket power” to examine the actions/inactions of the Executive rather it is subject to conditions and parameters laid down in the Constitution or conceived by the courts over a period of time in various pronouncements,” said the IHC bench.

It continued that the sole issue before this Court, in the instant appeal, is whether the ruling of the Presiding Officer, falls within the “irregularity of procedure” for the jurisdiction of this Court to be ousted within the meaning of Article 69(1) of the Constitution and also whether ruling of the Presiding Officer, is protected within the meaning of Article 69(2).

The bench mentioned that though learned counsel for the appellant did question that Presiding Officer was biased, as he was from alliance of the ruling party yet since no prayer has been made challenging his appointment as Presiding Officer, no finding is required to be rendered on the said issue, however, as noted earlier, Article 69(2) of the Constitution, provides immunity to the Presiding Officer with respect to business qua the procedure.

However, it also said; the above discussion does not, by any means, amounts to the effect that no decision of the Speaker of National Assembly or Chairman Senate or the Deputy Chairman Senate, as the case may be, cannot be assailed, come what may; the actions or inactions of the said office bearers if are of administrative nature or do not fall within procedural irregularity in proceedings, can be judicially reviewed on the touchstone of settled principles as well as grounds as noted in cases reported as PLD 1994 SC 738 as well as PLD 1999 SC 57 supra that where action is without jurisdiction, coram non judice or is based on malafide, it can be assailed. It added that the referred judgments do not come to the aid of the appellant in the instant matter.

The story was originally published in Business Recorder on April 02, 2022.