IHC throws out Gilani's plea challenging Senate top slot election

Islamabad High Court says parliamentary proceedings are immune to judicial interference

Saqib Bashir March 24, 2021


The Islamabad High Court (IHC) has thrown out former prime minister Yousuf Raza Gilani's petition against rejection of seven votes – cast in his favour – by a presiding officer on March 12 election for the slot of Senate chairman, stating that Senate proceedings are immune to judicial interference.

"The grievance of the petitioner in the matter in hand exclusively pertains to questioning the validity of proceedings of the upper house of the parliament and thus it is immune from interference by this Court under Article 69 of the Constitution,” said the court in its written order.

The 13-page order was authored by IHC Chief Justice Athar Minallah, who on Wednesday took up Gilani’s plea. A joint candidate of an 11-party opposition alliance – the Pakistan Democratic Movement (PDM) – for the position of Senate chairman, Gilani had requested the court to declare the polls void.

On March 12, the ruling PTI-backed candidates grabbed the top slots of the Senate in a “controversial contest” marred by the discovery of “spy cameras” in the polling booths.

In the polls, incumbent Senate Chairman Sadiq Sanjrani was re-elected. He had defeated Gilani.

Also read: PML-N, PPP at loggerheads over Senate slot

Ninety-eight senators had exercised their right to vote, out of which seven votes were rejected. Sanjrani who had received 48 votes as opposed to 42 votes of Gilani was later declared the winner by the presiding officer, Senator Muzaffar Hussain Shah. Gilani had later moved the IHC.

Dismissing the petition, the IHC noted that the parliament is the supreme legislative organ of the state, which 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.

“It is the highest forum for, inter alia, resolving national issues and political disputes. The parliamentary privileges, powers and immunities have been expressly incorporated in the Constitution.

“The language used by the framers of the Constitution is unambiguous and effective in order to prevent a court from encroaching upon the independence of the Majlis-e-Shoora (Parliament),” it said.

The court said the privileges and powers embedded in the Constitution are aimed at protecting the integrity of the parliamentary proceedings so that the parliament is enabled to perform its functions with the appropriate degree of independence.

“The Houses of the Majlis-e-Shoora (Parliament) are empowered to regulate their respective proceedings and the Constitution clearly prevents the courts from inquiring into its validity.

Also read: PPP seeks JI’s support for key Senate slot

“Any attempt by a court to interfere in proceedings of the houses by calling into question their validity is likely to undermine the dignity, prestige and independence of the 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 parliament inevitably has consequences, which adversely affects public interest,” it added.

According to the court, such judicial interference will erode the sanctity of the supreme legislative constitutional forum besides weakening their sovereignty, independence and prestige.

The verdict said such intrusions by the courts profoundly affect the confidence of the people in the parliament. Simultaneously, it has consequences for the judicial branch of the state as well because it essentially exposes the courts to deal with matters having political content.

In a politically polarized environment, intervention by the courts and that too in disregard to the constitutional privileges, powers and immunities of the parliament is likely to have profound ramifications in the context of the confidence of the people relating to impartiality of the courts.

“The judicial branch is not only to perform its functions impartially but has to be seen as such by the stakeholders – the people of Pakistan. It is for this reason that courts ought to exercise greater restraint in disputes which could be resolved by the Majlis-e-Shoora (Parliament) itself.

Also read: Takeaways from the Senate circus

“An effective, independent and functional Majlis-e-Shoora (Parliament) is the sole panacea for ensuring the well-being and prosperity of the nation. The security and integrity of the state also depends on the institutional strength and sovereignty of the Majlis-e-Shoora (Parliament).

“Article 69 is, therefore, to be understood and interpreted in this context and on the touchstone of the cardinal principle of constitutional separation of powers between organs of the state.”

The verdict said the respect, prestige, dignity and independence of the parliament is in the hands of the chosen representatives and thus it is their duty to jealously guard against unwarranted intrusions by other branches in its proceedings.

“Every member solemnly swears to perform functions honestly, to the best of his or her ability, faithfully and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan.

“Every word of the oath taken in the name of Allah, the most Beneficent and the most Merciful, has to be given respect. The success, effectiveness and independence of the parliament rests on the commitment of the chosen representatives to prevent breaches of the constitutional privileges, powers and immunities embedded in the Constitution.”

The order said the process of election to the office of chairman of the Senate is definitely not administrative in nature. It is, rather, a formal transaction of business of the upper house and can be fairly described as its internal proceedings.

“The entire process is thus wholly outside the corrective jurisdiction of a high court. Even if it was not so, this court would have exercised restraint because of its deference to the independence, dignity and prestige of the Majlis-e-Shoora (Parliament).”

It said the very nature of the composition and status of the two houses is such that the court has to presume that it has the ability to resolve the most difficult and complex disputes without involving the judicial branch. The Petition is, therefore, not maintainable.

"The petition is neither maintainable nor is this court inclined to exercise its extraordinary jurisdiction under Article 199 by issuing notices. Consequently the petition is accordingly dismissed.

“This court expects that, in order to maintain the dignity, integrity and independence of the parliament, the chosen representatives and political leadership will endeavour to resolve disputes without involving the judicial branch of the state."

Also read: After the Senate vote

The court noted that the petitioner asserts that, as a joint candidate of the PDM, he has the support of the majority of the worthy members of the Senate.

“It is thus obvious that the majority cannot only remove respondent No 6 [Sadiq 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.

“Adopting such a course of remedy would affirm the support of the majority of the worthy members of the Senate and, simultaneously, enhance the dignity and independence of the parliament.

“This court is satisfied that an adequate constitutional remedy is indeed available for establishing that the seven worthy Senators had actually intended to cast their votes in favour of the petitioner,” it said.


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