The Islamabad High Court (IHC) on Friday dismissed a petition against an ordinance that made it mandatory for an elected representative to take oath of office within 60 days, otherwise the seat would become vacant.
The decision clears the first legal hurdle for the ruling Pakistan Tehreek-e-Insaf (PTI) to unseat Pakistan Muslim League-Nawaz (PML-N) Senator Ishaq Dar, who has not taken oath so far since his election in 2018 and get incumbent Finance Minister Shaukat Tarin elected in his place.
Dismissing the petition of PML-N’s Parliamentary Party Leader in Senate Azam Nazir Tarar, IHC Chief Justice Athar Minallah ruled that the court’s involvement in parliamentary matters was in violation of the scheme of the Constitution and a factor in weakening of parliament.
“The court has consistently observed that its involvement in matters which otherwise could be resolved by the Majlis-e-Shoora (parliament), is in violation of the scheme of the Constitution,” the chief justice stated in his ruling.
“The trend of involving the judicial branch of the State in matters having political content is one of the factors which has contributed towards the weakening of the Majlis-e-Shoora (parliament) on the one hand and on the other, it has exposed the judicial branch to unnecessary controversies,” he noted.
The PML-N had challenged the vires of the Election (Third Amendment) Ordinance, 2021, saying it was person-specific with the sole purpose to target the PML-N and that ordinances could not be used to create permanent consequences.
The Election (Third Amendment) Ordinance was notified in the official gazette on September 3, 2021. Through the ordinance, the government inserted Section 72A (seat to become vacant on not taking oath) in the Election Act, 2017.
Section 72-A states, “Seat of a returned candidate shall become vacant, if he wilfully does not make oath within 60 days from the date of the first sitting of the assembly, the Senate or the local government or within 40 days of the commencement of the Elections (Third Amendment) Ordinance, 2021, as the case may be.”
In the order, Chief Justice Minallah stated that the political question raised before the courts by political parties having representation in parliament undermined its sanctity and supremacy, adding that it was an obligation of the political parties to ensure that political disputes were resolved within parliament instead of involving the courts.
The chief justice stated that the courts should show utmost restraint in matters, which fell within the domain of parliament or had a political content, adding that the two houses of parliament were the highest national forums for debating and resolving political disputes and for formulating policies that were in the best interest of the people of Pakistan.
Interestingly, the court noted that the ruling party did not enjoy majority in the Senate and despite having majority, the opposition parties did not disapprove the ordinance “then this Court has no reason to interfere and thus usurp the constitutional authority vested in the forums”.
He noted that Section 72A persuaded the court that it was in public interest that no elected office remained vacant and the electorate unrepresented for an indefinite period, adding that any interference from the court would be contrary to the public interest and the guaranteed fundamental rights of the people.
The chief justice stated, “For the foregoing reasons, this Court is not inclined to exercise its extra ordinary discretionary jurisdiction vested under Article 199 of the Constitution and consequently the petition is accordingly dismissed.”
Chief Justice Minallah said that the court expected that the political parties would endeavour to strengthen parliament by resolving political disputes in accordance with the constitutional provisions and the principles of democracy, adding that they would show restraint in unnecessarily involving the judicial branch of the state to resolve disputes having political content.
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