ISLAMABAD - The Islamabad High Court (IHC) Friday turned down a petition of Pakistan Muslim League – Nawaz (PML-N) challenging the presidential reference which says that seat of a member of parliament would become vacant if he fails to take oath within 60 days.
A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah dismissed the petition filed by the PML-N through its parliamentary party leader in Senate of Pakistan.
The IHC bench stated in the verdict that this court has been informed that the political party in power does not enjoy the majority in the upper house, Senate. It added that despite having majority, if the petitioner’s party and other opposition parties do not disapprove the Amendment Ordinance, 2021, then this Court has no reason to interfere and thus usurp the constitutional authority vested in the forums representing the people of Pakistan.
Justice Athar said, “Moreover, a plain reading of the inserted section 72A in the Election Act, 2017 through the Amendment Ordinance, 2021, persuades this Court that it is in public interest because it is intended to ensure that no elected office remains vacant and the electorate unrepresented for an indefinite period. Any interference by this Court would be contrary to public interest and the guaranteed fundamental rights of the people.”
He noted, “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.”
The court observed that it would not be in consonance with the fundamental rights of the electorate and definitely not in public interest for this Court to exercise its extraordinary discretionary jurisdiction vested under Article 199 of the Constitution.
The bench said that it is, therefore, obvious that the petitioner party and other opposition parties have a constitutional remedy of disapproving any Ordinance. It noted that this 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.
It added that the scheme is based on the principle of trichotomy of powers. Moreover, political question raised before the courts by political parties having representation in the Parliament, undermines its sanctity and supremacy. “The Majlis-e-Shoora (Parliament) is the supreme legislative organ and the scheme of promulgation of an Ordinance under Article 89 is subject to the oversight of the representatives of the people in both the Houses. 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-eShoora (Parliament) on the one hand, and on the other it has exposed the judicial branch to unnecessary controversies,” maintained the court.
The bench continued that it is an obligation of the political parties and their respective leaderships to ensure that political disputes are resolved within the Parliament instead of involving the courts.
It further said that this court has profound respect for the elected representatives and, therefore, it expects that they would resolve their disputes within the Parliament rather than unnecessarily involving constitutional courts. In the case in hand, each House is vested with the constitutional power and remedy for disapproving the Amendment Ordinance, 2021.