ISLAMABAD - The Islamabad High Court (IHC) Friday turned down the two identical petitions of Pakistan Muslim League (Nawaz) and Pakistan People’s Party challenging the vires of the Prevention of Electronic Crimes (Amendment) Ordinance, 2022.
A single bench of IHC comprising Chief Justice of IHC Justice Athar Minallah conducted hearing of the petitions and dismissed the same after hearing the arguments of both the sides.
Justice Athar said in his written verdict that the political parties represent the people and they are expected to resolve their disputes in the Majlis-e-Shoora (Parliament), rather unnecessarily involving the judicial branch of the State.
He noted, “It is their obligation to demonstrably show obedience to the Constitution without inviting interference by the constitutional court. Such interference weakens the Majlis-e-Shoora (Parliament) besides having profound consequences for the judicial branch itself. The intervention by courts in matters that can otherwise be resolved by political parties by resorting to democratic principles and processes, undermines the authority of the Majlis-e-Shoora (Parliament).”
The IHC Chief Justice also said that the matter raised by both the petitioner political parties has already been challenged by several important stakeholders by invoking the constitutional jurisdiction of the Court. The political parties have an important role under Article 89 of the Constitution and an effective remedy has been provided thereunder.
He maintained, “For the above reasons, particularly having regard to the crucial role of the political parties contemplated under Article 89 of the Constitution, the Court is not inclined to exercise its extra ordinary discretionary jurisdiction under Article 199 of the Constitution. The petitions are, therefore, accordingly dismissed.”
However, he noted, “This order shall not in any manner prejudice the proceedings pending before the Court in W.P.No.216 of 2021, titled ‘Kanwal Shauzab vs. Learned Justice of Peace, etc”, and other connected petitions.”
The court also appointed Mansoor Awan Advocate as an amicus curiae to assist the court in the aforementioned pending constitutional petitions, inter alia, regarding the nature and scope of the power conferred under Article 89 to promulgate an Ordinance and the jurisdictional pre conditions required to be met in order to justify circumventing the process of law making through Majlis-e-Shoora (Parliament) and avoiding playing fraud upon the Constitution.
In this matter, PML-N and PPP invoked the jurisdiction of the Court vested under Article 199 of the Constitution of Pakistan, 1973 and challenged the vires of the Prevention of Electronic Crimes (Amendment) Ordinance, 2022.
The IHC bench noted that both the aforementioned political parties have a significant representation in the Majlis-e-Shoora (Parliament). It stated that the impugned Ordinance has been promulgated by the President in exercise of powers conferred under Article 89 of the Constitution while a plain reading of Article 89 unambiguously shows that there is a constitutional obligation to lay an Ordinance before both the Houses of the Majlis-eShoora (Parliament), if it does not contain provisions dealing with any of the matters referred to in sub paragraph (i) of Article 89 (2)(a), as is the case relating to the impugned Ordinance. Either of the House is empowered to disapprove the impugned Ordinance by passing a resolution.
The court said that the power conferred under Article 89 of the Constitution is extraordinary and is subject to fulfilment of prescribed jurisdictional pre conditions. It enables the executive branch to circumvent the scheme of legislation prescribed under the Constitution through the Majlis-e-Shoora (Parliament).
The court maintained that the political parties have a pivotal role in ensuring that the affairs of the Parliament are governed in accordance with the scheme prescribed under the Constitution.
The bench also said that it is their collective duty to uphold the Constitution by making it workable. When a political party invokes the jurisdiction of a constitutional court, it, prima facie, manifests that the Constitution has not been made workable.