IHC dismisses Fawad’s plea challenging Durrani’s appointment as ECP member

ISLAMABAD: The Islamabad High Court (IHC) on Monday turned down Pakistan Tehreek-e-Insaf (PTI) leader Fawad Chaudhary’s petition challenging the appointment of Nisar Ahmed Durrani as member of the Election Commission of Pakistan (ECP).

A single bench of Chief Justice Athar Minallah heard the petition invoking constitutional jurisdiction of the court under Article 199 of the Constitution, and seeking a writ of quo warranto.

The PTI leader had challenged the appointment of Durrani as Member ECP.

The IHC bench noted in its written judgment that the petition is not competent and even otherwise, the Court would have exercised restraint because the Constitution has prescribed the manner in which a Commissioner may be removed from his office.

It added, “It is not a case in which this Court is inclined to exercise its jurisdiction vested under Article 199 of the Constitution. The petition is, therefore, accordingly dismissed in limine.”

The PTI leader stated in his petition that he was elected as a Member of the National Assembly and his resignation has not been accepted as yet. He, therefore, continues to enjoy the status as an MNA.

He informed the bench that it is an admitted position that Durrani was appointed as a Member of the Commission pursuant to recommendations made by the Parliamentary Committee constituted under Article 213 (2B) of the Constitution. The bench said that sub-article (2) of Article 215 explicitly prescribes the manner in which a Commissioner or a member can be removed.

The court, therefore, asked the counsel for the petitioner to satisfy the Court regarding the maintainability of the petition. The counsel argued that sub-article (2) of Article 215 is attracted only when misconduct has been alleged against the Commissioner.

Justice Minallah observed in the verdict that with the able assistance of the counsel, Article 215(2) has been carefully perused and in case the argument raised by the counsel is accepted, then the Court would be reading into the Constitution something not provided therein.

He added that Article 215(2) is a constitutional protection and it cannot be bypassed by this Court while exercising constitutional jurisdiction. “Moreover, the power vested in the Court under Article 199 of the Constitution has been expressly made “subject to the Constitution”. Moreover, in case the Court is satisfied that other adequate remedy is provided by law, then it may refuse to exercise its jurisdiction.”

He continued that the Commission is a creation of the Constitution and, therefore, this Court ought to exercise restraint in exercising powers under Article 199 of the Constitution, particularly, when the manner regarding removal of a Commissioner has been expressly provided under Article 215(2) of the Constitution.

The IHC chief justice said that it is settled law that what cannot be done directly, can also not be done indirectly.

Copyright Business Recorder, 2022