ISLAMABAD: The Islamabad High Court’s (IHC) dismissal of a plea against the PTI lawmakers’ return to the National Assembly, terming it a political matter, caused a stir in political circles.

“Political questions are out of the jurisdiction of this court, under Article 199 of the Constitution,” stated the 37-page judgment of a division bench of IHC, authored by Justice Athar Minallah.

Former PML-N Senator Zafar Ali Shah had filed a petition before the IHC, seeking the disqualification of the PTI lawmakers who had resigned their seats last year. However, the National Assembly Speaker Ayaz Sadiq had not accepted the resignations submitted during the PTI’s 125 day long sit-in last year, protesting alleged rigging in the 2013 elections.

Over the weekend, former Chief Justice Iftikhar Muhammad Chaudhry wrote a letter to the Speaker “as a citizen”, stating that under Article 64 of the Constitution, the resignations had “become effective”. The PTI, which had previously accused the former chief justice of facilitating the alleged election rigging, reacted strongly to his contention.

However, the IHC judgment stated, “It is the exclusive domain of the speaker to, independently and judiciously, apply his mind when deciding on the resignation of a legislator. Neither can this court usurp the powers vested in the speaker, nor make him go through the rigours of adducing evidence in the court, inevitably expressing a lack of respect for the office of the speaker and the representative forum of the people of Pakistan i.e. the National Assembly.”

“This is clearly hit by the doctrine of political question,” it added.

States it is a political matter; the court cannot usurp the speaker’s powers

Meanwhile, a judicial commission has been formed under the Chief Justice of Pakistan Nasir-ul-Mulk to probe allegations of rigging. The commission is set to start formal proceedings on April 16.

The judgment, referring to the petitioner, also noted that “Only the candidates of the concerned seat may challenge the election of a returned candidate, with evidence, beyond the shadow of doubt”.

In such a case, the judgment noted, the court must protect the interests of a lawmaker’s constituents who may be affected by his resignation.

“In other words, the law relating to elections, filling of seats in the assemblies or setting aside the elections provides for highly stringent requirements, particularly for declaring an election void and resultantly allowing the seat to fall vacant,” observed the judgment.

It emphasized that “the constitution and the law unambiguously intended and envisaged” that once a person was elected, then the vacation of the seat was not taken for granted.

Referring the lawmaker as a stakeholder, the judgment stated that “He or she acts on behalf of, or as an agent for, the hundreds and thousands of constituents who are the real occupants and claimants of the seat. The will of the people is sacrosanct.”

It noted that the 342-member National Assembly, elected by eligible voters represents the 180 million people of Pakistan.

Therefore, it added, wrongful vacation of the seat cannot be compensated through by-elections because the law leans in the favour of keeping the seats filled once the returned candidate has been notified.

Acknowledging that 70 million eligible citizens voted PTI members to the parliament, the judgment said it would be unjust if the mandate of these 70 million was brushed aside.

The judgment noted that “the people of Pakistan have been made to suffer for long, 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 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.”

The IHC judges expressed confidence that “at this juncture of our history the political forces would settle their grievances in the political forums rather than taking the precious time of the bona fide litigants awaiting justice to be dispensed expeditiously.”

“We also expect that the political forces will strive to create harmony and refrain from undermining the prestige of the parliament, a symbol of unity of the federation and the peoples’ will,” they said.

The judgment concluded by observing that the Parliament “deserves utmost respect because the 342-members occupy the seats on behalf of the people of Pakistan”.

Published in Dawn, April 14th, 2015

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