ISLAMABAD: The Islamabad High Court (IHC) on Friday dismissed a petition filed against the presidential ordinance that required lawmakers to take the oath within 60 days after the first sitting of a legislature.

       The opposition Pakistan Muslim League-Nawaz (PML-N) invoked the jurisdiction of this court challenging the vires of the Election (Third Amend-ment) Ordinance, 2021, which was notified in the official gazette on Sept 3.

       The counsel for the opposition party argued that President Dr Arif Alvi sig-ned the ordinance on Sept 1 to amend Section 72 by adding proviso 72A that states: “Seat becoming vacant on not making oath within 60 days: The seat of a returned candidate shall become vacant if he wilfully does not make an oath within 60 days from the date of first sitting of the National Assem-bly, Senate, Provincial Asse-mbly or Local Government or within 40 days of the promulgation of this Ordin-ance as the case may be.”

       He argued that the presidential ordinance was passed less than a month after the National Assembly was prorogued on August 12, 2021, while the next general elections and Senate elections were scheduled to be held in 2023 and 2024, respectively. “As such, it represents one piece of legislation in a broader pattern of using ordinances to circumvent the constitutionally mandated, democratic legislative process in the Parliament,” he added.

       Before the promulgation of the ordinance, the National Assembly had already passed a bill titled Elections Amendment Act, 2020 that was also laid before the Senate for its consideration, the attorney pointed out, adding that the bill was currently before the Senate Standing Committee on Parliamentary Affairs. Clause 25 of the bill seeks to insert section 72A to the Elections Act, which is almost identical, in language, to the impugned ordinance.

       IHC Chief Justice Athar Minallah observed that Section 72A in the Election Act, 2017 through the Amendment Ordinance, 2021, persuaded this court that it was in public interest as it was intended to ensure that no elected office remained vacant and the electorate unrepresented for an indefinite period. Any interference by this court would be contrary to public interest and the guaranteed fundamental rights of the people, the court observed.

       Justice Minallah noted that Section 72A inserted in the Election Act, 2017 showed that the legislation had been promulgated to ensure that no elected office remained vacant and the constituents unrepresented for an indefinite period.

       The ordinance obviously intended to achieve an object based on the established democratic principle i.e. no elected office ought to be left vacant so that the actual stakeholders, the people of Pakistan, did not suffer by remaining unrepresented, the court order explained.

       Subsequently, it would not be in consonance with the fundamental rights of the electorate and definitely not in public interest for this court to exercise its extraordinary discretionary jurisdiction vested under Article 199 of the Constitution, the chief justice observed.

       However, the court admitted that the petitioner party had a significant presence in both houses of the parliament. “It has also been conceded that the ruling political party in the upper House i.e. the Senate of Pakistan does not enjoy the majority,” it stated.

       Ordinances be laid before parliament

       Since the opposition parties were in the majority in the upper house, it was a constitutional obligation under Article 89 of the Constitution to lay every ordinance promulgated by the president before both houses of the parliament, the high court order said, adding that obviously the petition and other opposition parties had a constitutional remedy of disapproving any ordinance.

       The court noted that this court had consistently observed that its involvement in matters which otherwise could be resolved by the parliament, was in violation of the scheme of the Constitution. The scheme was based on the principle of trichotomy of powers, the court order read, adding that political questions raised before courts by parties having representation in the parliament undermined its sanctity and supremacy. It stated the parliament was the supreme legislative organ and the scheme of promulgation of an ordinance under Article 89 was subject to the oversight of public representatives in both houses.

       Reiterating his stance of refraining from interfering into the parliament’s domain, Justice Minallah asserted, “The trend of involving the judicial branch of the State in matters having political content is one of the factors which has contributed towards the weakening of the parliament on the one hand, and on the other it has exposed the judicial branch to unnecessary controversies.”

       He observed that it was an obligation of the political parties and their respective leaderships to ensure that political disputes were resolved within the Parliament instead of involving courts.

       In the case in hand, it noted, each house was vested with the constitutional power and remedy for disapproving the Ordinance, 2021. This court was also informed that the party in power did not enjoy majority in the Senate. If the petitioner party and other opposition parties did not disapprove the ordinance despite having majority, then this court had no reason to interfere and thus usurp the constitutional authority vested in the forums representing the people of Pakistan, the court order noted.

       “For the foregoing reasons, this court is not inclined to exercise its extraordinary discretionary jurisdiction vested under Article 199 of the Constitution and consequently the petition is accordingly dismissed,” the court ruled.

       Published in Dawn, October 2nd, 2021