ISLAMABAD   -   The Islamabad High Court (IHC) Friday turned down Senator Yousaf Raza Gilani’s Intra Court Appeal (ICA) challenging rejection of seven votes in the chairman Senate elections.

A division bench of the IHC comprising Justice Aamer Farooq and Justice Tariq Mahmood Jahangiri announced the decision which it had reserved after hearing the arguments in the ICA filed by PPP leader and Senator Yousaf Raza Gilani against the IHC single bench’s decision wherein it rejected the PPP leader’s petition challenging the result of the elections for the Chairman Senate.

In this matter, Gilani moved the court through his counsel Farooq H Naek Advocate while Attorney General for Pakistan represented the Federation and Barrister Ali Zafar appeared before the court on behalf of Chairman Senate Sadiq Sanjrani. He adopted that parliamentary proceedings could not be challenged under Article 67 and even no court was authorized to raise question against any decision of the house.

The IHC bench stated in its written verdict that in the referred backdrop, it is only essential and proper that a resolution may be moved by the appellant, if he feels that he has been declared an unsuccessful candidate through an erroneous ruling of the Presiding Officer; making election or the process of election not fair, just and honest, which may be put to vote and whoever has the majority, shall carry the day. It further said, “In so far as findings of learned Judge-in-Chambers regarding maintainability of writ petition as well as alternate and adequate remedy is concerned, they do not suffer from any error calling for interference. For the above reasons, instant appeal fails and is accordingly dismissed.”

The bench observed that again, much emphasis was laid by counsel for the appellant that it is the “intention” of the voter that is to be gathered and in support of the same, reliance was placed on a number of cases; there is no cavil with the principles laid down in the said cases and as noted above that the ruling of the Presiding Officer might not be correct but since the matter falls within the domain of “internal proceedings” and/or “irregularity of the procedure” (which might not be written in the Constitution or the Rules) but is being adhered to or followed over a period of time, hence this Court does not have the jurisdiction to examine the matter.

It added, “The above findings, by no means, render the appellant without a remedy; he has the remedy by way of a resolution for removal of Chairman Senate i.e. respondent No.6 within the framework of the Constitution. In this behalf, Motion for removal can be tabled by requisite number of members and the House can vote on the same and if the motion, by majority, succeeds, respondent No.6 would cease to be the Chairman Senate.”

It said that the underlined 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.

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) ibid.

The court said, “As noted above, elaborate arguments were addressed by both the sides and learned counsel for respondents No.3 to 5 placed reliance on number of judgments from the jurisdiction of United Kingdom to substantiate his argument about ouster of jurisdiction of the courts qua internal proceedings of the Parliament.”

It maintained that since the parliamentary form of government, which we have as provided in the Constitution, is akin to the system in the United Kingdom, hence it would be an appropriate starting point, for rendering opinion, to consider these judgments and mentioned various judgments of the UK in this regard.

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 that 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.