Gilani unsuccessful at another forum: PPP’s first attempt to upend Sanjrani fails

ISLAMABAD: The first attempt by the Pakistan People’s Party (PPP) to get Yusuf Raza Gilani declared elected and Sadiq Sanjrani unseated as the Senate chairman through the Islamabad High Court (IHC) has met with failure. Chief Justice Athar Minallah has once again strictly upheld his long-standing opinion that parliamentary and political disputes should not be arbitrated by the judiciary.

Justice Minallah has held in a number of judgments that elected persons, who represent the will of the people, should resolve controversies in parliament and the superior courts should not be approached for the purpose. His refrain in the recent decision is also that parliament’s respect, prestige, dignity and independence, which is in the hands of elected representatives, be maintained and it is their duty to jealously guard against unwarranted intrusions by other branches into parliament’s affairs.

After the setback, the PPP has the option of challenging the ruling before a larger bench of the IHC. If it does not get relief from a larger bench, it can go to the Supreme Court.

The IHC order came at a time when the opposition alliance-- the Pakistan Democratic Movement (PDM)-- which had sponsored Gilani as its joint candidate, is engulfed by dissensions mainly in the wake of the Senate elections. The PPP was flying very high after Gilani’s success from the Islamabad seat of the Upper House of parliament. Tuesday’s verdict has turned out to be a damp squib for the party—at least for the time being.

Justice Minallah noted that the entire Senate election process was held and regulated internally by parliament without the involvement of any other outside entity such as the Election Commission of Pakistan (ECP). Article 69 explicitly bars the jurisdiction of the court and is one of the privileges, powers and immunities of parliament expressly guaranteed under the Constitution.

Emphasising the importance of parliament, that he has repeatedly stressed in several judgments, the IHC chief said that it is the supreme legislative organ of the state. It represents the people of Pakistan and maintaining its dignity, respect and independence is of paramount importance and a constitutional duty of other branches of the state.

Justice Minallah wrote that parliament is the highest forum for resolving national issues and political disputes. The parliamentary privileges, powers and immunities have been expressly incorporated in the Constitution. The language used by the framers of the Constitution is unambiguous and effective in order to prevent a court from encroaching upon the independence of parliament. It is based on the principle of constitutional separation between the three branches of the state - the judiciary, legislature and the executive.

The privileges and powers embedded in the Constitution are aimed at protecting the integrity of the parliamentary proceedings so that parliament is enabled to perform its functions with the appropriate degree of independence. Parliament is empowered to regulate its proceedings and the Constitution clearly prevents the courts from inquiring into its validity. Any attempt by a court to interfere in its proceedings by calling into question its validity is likely to undermine the dignity, prestige and independence of parliament on the one hand while, on the other, it exposes the apex constitutional legislative forum to undesirable and unwarranted criticism.

The top judge said that any encroachment by the judicial branch in the realm of the validity of the parliamentary proceedings inevitably has consequences, which adversely affects public interest. It erodes the sanctity of the supreme legislative constitutional forum besides weakening the sovereignty, independence and prestige of parliament. Such intrusions by the courts profoundly affect the confidence of the people in parliament. Simultaneously, it has consequences for the judicial branch of the state as well because it essentially exposes the courts to deal with matters having political content.

Justice Minallah wrote that in a politically polarised environment, intervention by the courts and that too in disregard to the constitutional privileges, powers and immunities of parliament is likely to have profound ramifications in the context of the confidence of the people relating to impartiality of the judicial branch, which is not only to perform its functions impartially but has to be seen as such by the stakeholders i.e. the people of Pakistan. It is for this reason that courts ought to exercise greater restraint in disputes which could be resolved by Parliament itself. An effective, independent and functional parliament is the sole panacea for ensuring the well-being and prosperity of the nation. The security and integrity of the state also depends on the institutional strength and sovereignty of parliament.

The judge noted that the success, effectiveness and independence of parliament rests on the commitment of the chosen representatives to prevent breaches of the constitutional privileges, powers and immunities embedded in the Constitution. It is an onerous duty of the political leadership and every chosen representative to prevent the judicial branch from exercising the power of judicial review relating to the proceedings of parliament, which are privileged and protected under Article 69 of the Constitution.