‘Courts can’t make Senate party in a case’

Barrister Ali Zafar argues before IHC against ICA moved against Senate chairman’s election

Our Correspondent July 15, 2021


Counsel for Senate Chairman Sadiq Sanjrani has contended before the Islamabad High Court (IHC) that the upper house cannot be made a party to any writ petition or court proceedings.

Ali Zafar, counsel for the Senate chairman, was presenting his argument on Wednesday before an IHC division bench hearing an intra-court appeal (ICA) moved by Senate Leader of Opposition Yousuf Raza Gillani against the election of Sanjrani as the Senate chairman.

Gilani had filed the ICA against the order of IHC Chief Justice Athar Minallah who had earlier quashed Gilani’s petition challenging election of the Senate chairman held on March 3, 2021. In the polls, Senator Sadiq Sanjrani had defeated Senator Gillani by 5 votes.

Ali Zafar argued the case in length and informed the bench that the Constitution has two “no tanks on the lawn” arrangement to keep the parliament and the courts off each other’s territories.

“The parliament could neither interfere with sub judice matters nor question any court proceedings and, similarly, the courts could not interfere in any parliamentary proceedings in any manner."

He argued that under the Constitution, the parliament is supreme and not subordinate to the courts. Neither the courts nor the Senate has the jurisdiction to send notices or directions to each other. Hence, the Senate cannot be made a party to any writ petition or any other court proceedings.

“These are privileges enjoyed by the Senate, its members, the chairman and any presiding officer, conducting the elections of the Senate chairman.”

He said Senator Gillani, who is also the opposition leader, had himself breached this very privilege by challenging the election of the chairman, which is considered to be an internal proceeding of the Senate.

“It was in fact barred under the Constitution to interfere with the proceedings of the parliament. If the court decides to issue any notices to the Senate or pass any directions, it will be in violation of the independence of the organs of the state, concept of separation of powers and amount to contempt.”

He said both the institutions have to recognize each other's constitutional roles.

Barrister Zafar, in his arguments, relied on jurisprudence from all over the world, including the landmark English case of Bradlaugh v Gossett (1889). In this case it had been held by the British courts that they could not interfere in the internal management of the house and its procedures.

Barrister Zafar by providing references to the British law, as well as laws of several other constitutionally governed states of the world, where there is the concept of parliament, argued that all these states envisaged, in their constitutions, mechanisms for parliaments to regulate their own procedures, and the Court did not have the jurisdiction to interfere in any Parliament.

He referred to the famous judges of the English court who had said what is said or done within the walls of the parliament cannot be inquired into in a court of law or elsewhere, even if the matter was for the purpose of supporting a cause of action.

“The jurisdiction of the houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.”
 In the end, Barrister Zafar submitted that the sources of parliamentary privileges enjoyed by the Pakistan Parliament emanate from those enjoyed by members of the House of Commons in the UK.

He referred to the Constitution to argue that it is abundantly clear and absolute that the privileges of the UK House of Commons are applicable to Pakistan.

“The parliament can make its own rules or procedures to regulate its proceedings and the conduct of its business. The parliamentary proceedings cannot be questioned on any grounds of irregularity in courts. The courts have no jurisdiction to examine the decisions made in Parliamentary proceedings.

 Zafar argued that the decision of the presiding officer in rejecting the votes and the decision of the presiding officer in declaring the results of Senate chairman, are all proceedings “in Senate” and “of Senate” and are decisions and actions taken in the conduct of Senate’s own business.

“Hence, no court has the jurisdiction to interfere,” he said.

Zafar was still on his legs when the case was adjourned till July 27 for his remaining arguments.


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