Unique case coming up before court

ISLAMABAD: Opinion differs on whether or not the process involving the Senate chairman’s election constituted ‘parliamentary proceedings’ that, under the Constitution, cannot be challenged in a court of law.

Prominent constitutional expert Wasim Sajjad is of the view that the Senate Chairman’s election constituted House proceedings. But another noted lawyer Kamran Murtaza believes that this election can be termed parliamentary proceedings only by stretching its definition.

Other legal experts attach credence to Presiding Officer (PO) Syed Muzaffar Shah’s observation, repeated more than once while rejecting seven votes of opposition candidate Yousaf Raza Gillani.

The PO had ruled the stamp was placed on the name of the Pakistan Democratic Movement (PDM) nominee. They say by stating so, the PO had no doubt in his mind that these senators actually voted for Gillani but in his view they should have done so in the specific box on the ballot paper.

They point out that in the case of another ballot, the PO clearly said that the concerned senator voted for both aspirants, which he could not do without rendering his ballot invalid. Its rejection was justified because of the stamp having been affixed on the names of both contestants, the experts say.

They feel that the PO’s observation about the seven discarded ballots would be raised in the court where the Senate chairman’s election would be challenged. It would obviously be stressed that the PO did not hold the view that the seven senators were double-minded about choosing between the two competitors, they say.

Wasim Sajjad said that it would be the first time that the issue of rejected votes in an election for the Senate chairman is contested in a superior court. “This will be a unique case and its adjudication will set a new judicial precedent.”

He referred to Article 69 of the Constitution, which says the validity of any proceedings in parliament will not be called into question on the grounds of any irregularity of procedure. No officer or MP in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining order in parliament will be subject to the jurisdiction of any court in respect of his exercise of those powers.

Kamran Murtaza said the question whether or not the Senate chief’s election amounted to House proceedings would definitely come up in the hearings of the petition in the court.

He said there were two judicial options available to question the discarded votes as no remedy was available in the law to agitate it at any other forum. A writ can be filed in the high court under Article 199. Or a petition can be submitted to the Supreme Court under Article 184(3). In his view, it is better to approach the high court.

However, the lawyer said that the issue of rejected votes in other elections has already been conclusively settled by the Supreme Court which held in the Dr Sher Afgan case that the intention of the voter, expressed on the ballot paper, has to be given weight and accepted.

“When the voter’s intent is clear, his/her vote can’t be declared invalid. Nobody can be disenfranchised under the Constitution. When there is a doubt about the intention of the voter, the ballot can be rejected,” Kamran Murtaza said.

Wasim Sajjad said that if the voter’s identity was disclosed on the ballot by any mark or indication, the paper would become invalid as per the case law. There is no precedent showing that the election of the chairman or speaker was ever challenged in a court of law on the basis of rejected votes.

However, he said a superior court can intervene in any matter on three grounds: if the act done is mala fide, is without jurisdiction or is coram non judice. All this has to be established to the satisfaction of the court, which is quite a difficult job, he said.

The expert said that the question of the presiding officer’s powers to throw out seven votes would come under discussion in the judicial proceedings. The onus on proving his mala fide would be on the shoulders of the opposition, he said.