ISLAMABAD - A Division Bench (DB) of the Islamabad High Court (IHC) Monday dismissed former Senator Syed Zafar Ali Shah's petition against return of Pakistan Tehrik-e-Insaf (PTI) Members National Assembly (MNAs) to Parliament.

The dual bench of IHC comprising Justice Athar Minallah and Justice Aamir Farooq issued the detailed verdict rejecting Syed Zafar Ali Shah's petition against return of PTI members to National Assembly and declared that it is within the powers of Speaker National Assembly and court cannot usurp these powers. The judges in the bench emphasized that the political issues should be resolved at political platforms, the separation of powers in the state pillars is utmost necessary and every pillar of the state has got scars from the past that needs to be cured.

In this matter, the IHC DB authored a 37 pages detailed judgment and has observed, "The prayer that the resignations of Pakistan Tehrik-i-Insaf (PTI) National Assembly Members were voluntary and genuine, and a declaration has been sought in this regard as well. Neither can this Court usurp the powers vested in the Speaker by the constitution, nor make him go through the rigours of adducing evidence in the court, inevitably expressing our lack of respect for the office of the Speaker and the representative forum of the people of Pakistan i.e the National Assembly.

It further noted, "This is clearly hit by the doctrine of political question. The prayers and the petition have become in fructuous as, admittedly, before the speaker could conclude the inquiry the resignations have been retracted, and have thus become ineffective and no more valid, as has already been held."

The dual bench added, "neither is the petition maintainable, nor does any matter placed before us requires our intervention in the exercise of the powers and jurisdiction vested in this court under Article 199 of the Constitution. The petition is accordingly dismissed."

It was April 06 when retired Senator of the ruling PML-N Syed Zafar Ali Shah had filed this petition seeking from the IHC to declare the PTI national assembly members as former members on the ground that resignations were genuine and voluntary.

He had also prayed to the court to direct the Election Commission of Pakistan (ECP) to announce the schedule of bye-elections, restrain the secretary national assembly from issuing the salaries to these members.

In the petition, Shah had contended that PTI members had verified their resignations scores of time through media. Petitioner had further contended that article 64 of the constitution is silent regarding the acceptance or rejection of the resignation tendered by a member of the Parliament.

He had contended that once the resignations were tendered and the members had absented themselves without leave of the house for 40 consecutive days, then their seats shall fall vacant.

The petitioner had informed the court that he raised his voice on this issue inside his party but no action was taken.

In it judgment, the DB noted referring to an apex court judgment of Mr. A. K. Fazalul Quader Chaudhury vs Syed Shah Nawaz & others that the apex court interpreted the duty of the Speaker in the case of resignation tendered by a member of the National Assembly.

The verdict stated, "I have no doubt in my mind that Speaker had the right and duty under the Constitution to satisfy himself as to the genuineness and the validity of the resignation by a member, before it is allowed to take effect".

Referring to the case of former Prime Minister Syed Yousaf Raza Gillani, IHC bench observed that a seven-member bench of the Supreme Court decided the contempt of court case. Court noted, "In this case the august Supreme Court, in line with its consistent view, had left the matter to be decided by the Speaker under Article 63(2) of the constitution, after sentencing a member of the national assembly for having committed contempt. The full court of the august Supreme Court, having regard to the principle of separation of powers, left the matter of disqualification to the Speaker, pursuant to the powers vested under Article 63(2) of the constitution. Pursuant to the said judgment, the speaker gave her decision and the same was challenged before the Supreme Court, culminating in the judgment titled 'Muhammad Azhar Siddiqui and others vs Federation of Pakistan. The said judgments had been delivered in the context of determining the role of the Speaker under Article 63(2) of the constitution. The principles enunciated in the two judgments unambiguously elucidate that it is the exclusive domain of the Speaker to apply his/her own mind judiciously".

By referring a judgment of Madras High Court, the IHC bench noted "to resign is not a matter of right..."

The IHC bench noted that it is obvious that for a resignation to take effect under Article 64 of the constitution, it is not enough that the member has written it under his or her name addressed to the speaker. The crucial test, or mandatory pre requisite for the seat to become vacant on resignation, is the fulfillment of the Constitutional duty of the Speaker to be satisfied.

It further noted, "while we appreciate his (petitioner's) zeal for protecting the constitution, at the same time we expect that he would appreciate that just as the courts jealously guard their own constitutional role, a duty is also owed by him, as a member of the bar, to likewise respect and uphold the role assigned by the constitution to the other two organs. We have been informed that PTI is the third largest party in the national assembly and almost 70 million eligible citizens had voted for it. It would be unjust an unfair if the mandate of these 70 million is brushed aside in such casual manner as has been argued by the petitioner, IHC bench further noted.

The bench added that further the people of Pakistan have been made to suffer for a long time by depriving them of their fundamental right to govern through democratic dispensation. The long spells of undemocratic regimes, at the expense of usurping the rights of the people of Pakistan through tyranny and despotism, has caused this country irreparable consequences. The greed for power of an elitist minority shattered the cherished dreams of the founding forefathers, who had achieved a free homeland through enormous sacrifices, IHC bench noted.

It also noted that the doctrine of separation of powers, as it was the only formidable hurdle in their path. The first constituent assembly, of which our great founder and Quaid Mohammad Ali Jinnah was the first President, was mercilessly sent packing, and with great respect and humility, it also left a scar on us i.e the judiciary. Institutions, particularly the three organs, the legislature, the judiciary and the executive, have to rise to the occasion and walk an extra mile by sacrificing their respective institutional egos, demonstrating grace and ensuring that the principle of separation of powers is not only respected but also enforced in its true spirit.

The IHC dual bench has further directed IHC registrar office to send copy of the judgment to the speaker national assembly as well.