ISLAMABAD: Election for chairman Senate is reviewable and can be challenged on the plea that the voter was disenfranchised which is violative of his/her fundamental rights as laid down in the Constitution of Pakistan.
This was the consensus of a Business Recorder anecdotal survey of constitutional experts.
Parliamentary proceedings cannot be challenged in any court of law but if the opposition moves a petition in the Supreme Court or any High Court that seven voters were disenfranchised in the election of the Senate chairman then the matter can be heard, experts contended.
Speaking to Business Recorder, President Sindh High Court Bar Association Salahuddin Ahmed said, "If the failure to count votes in the chairman senate election is perceived as mala fide then the matter is reviewable."
He added that it is up to the Supreme Court or High Courts to decide on the maintainability of a petition on Senate election. Former Vice Chairman Pakistan Bar Council and newly-elected Senator of Jamiat Ulema-e-Islam Fazl (JUI-F) Kamran Murtaza said the question of maintainability would arise if the opposition decides to move Islamabad High Court (IHC) or Supreme Court keeping in view the fact that parliamentary proceedings cannot be challenged in any court of law under Article 69.
"But the Supreme Court or IHC has to determine whether the fundamental rights of voters were violated. If any superior court is convinced that voters were disenfranchised then it can hear the petition accordingly," he said.
Murtaza said the petition against the chairman Senate election could be filed in Supreme Court or IHC under Article 184 or Article 199 of the Constitution. The two Articles respectively grant the Supreme Court and High Courts the powers to hear any matter related to fundamental rights, he said.
Former secretary ECP Kanwar Dilshad said Article 69 of Constitution of Pakistan makes it clear that no court can inquire into the proceedings of Parliament. However, he said, the superior judiciary has the power to hear any case concerning fundamental rights. Article 69 reads, "Courts not to inquire into proceedings of Majlis-e-Shoora (Parliament).
(1) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure.
(2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."
Dilshad argued that affixing the stamp on the name of a candidate does not lead to the rejection of the vote as superior courts have issued verdicts in this regard in some cases.
"There's the law that says parliamentary business cannot be questioned in any court and there's the question of violation of fundamental rights. It's entirely up to the courts to decide on the maintainability of the opposition's petition regarding chairman Senate election, if and when it is moved," he said.
In a major setback to opposition's Pakistan Democratic Movement (PDM) on Friday, the federal government-backed candidates Sadiq Sanjrani and Mirza Muhammad Afridi grabbed the slots of chairman and deputy chairman Senate, by defeating the Yousuf Raza Gilani and Abdul Ghafoor Haideri, respectively.
In the tightly contested chairman Senate election, Sanjrani was re-elected as Chairman Senate with 48 out of a total 98 votes cast.
The PDM-backed candidate Gilani received 42 votes with eight votes rejected of which seven were cast in Gilani's favour (with stamp affixed on Gilani's name instead of in the box and one vote was rejected as the affixed stamp was on both the names).
Copyright Business Recorder, 2021