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Petitioner: JAMMU AND KASHMIR TEHRIK AMMAL PARTY, AND 11 OTHERS VS Respondent: THE AZAD STATE OF JAMMU AND KASHMIR AND ANOTHERs
Court Name: High Court of Azad Jammu and Kashmir Judge(s):Sardar Muhammad Ashraf Khan, Abdul Majeed Malik, Raja Muhammad
Akram Khan Title:JAMMU AND KASHMIR TEHRIK AMMAL PARTY, AND 11 OTHERS vs THE AZAD STATE OF JAMMU AND KASHMIR AND ANOTHERs Case No.: Writ Petition No, 42 of 1985 Date of Judgment:1985-06-11 Reported As: PLD 1985 Azad J & K 95 Result: Order accordingly Judgment ORDER ' ABDUL MAJEED MALLICK, C J.-Jammu and Kashmir Tehrik Atnmal Party and Azad Jammu and Kashmir Muslim Conference, petitioners Nos. 1 and 2, are the political parties registered under the Azad Jammu and Kashmir Political Parties Ordinance, 1985 (hereinafter referred as Ordinance), petitioners Nos. 3 to 10, the returned members of the Legislative Assembly, were the nominees of Tehrik-i-Ammal Party and petitioners Nos. 11 and 12 were nominees of Azad Jammu and Kashmir Muslim Conference. Maj.-Gen. (Retd.) Muhammad Hayat Khan is the Chief of Tehrik-i-Ammal Party whereas Sultan Mahmood Chaudhry is the President of the Azad Jammu and Kashmir Muslim Conference. 2. In this petition, special jurisdiction of the Court is invoked to challenge the vires of section 8-A of the Azad Jammu and Kashmir Political Parties (Amendment) Ordinance, 1985 (hereinafter referred as section 8-A) and provisions of section 5 (2) (xii) of the Azad Jammu and Kashmir Legislative Assembly Election (Amendment) Ordinance, 1985 (hereinafter referred as clause (xii)), on the ground of their being inconsistent and derogatory to the provisions of the Constitution, prescribed under Fundamental Rights, Article 4 (4) 7 (hereinafter referred as Fundamental Right 7). 3. It is of interest to record that the last Legislative Assembly was dissolved in August, 1977 with the understanding that the general elections shall be held within 90 days i,e, 10 days after the general elections proposed to be held in Pakistan. This could not happen for reasons not necessary to be listed here and second time, general elections were announced to be held in October, 1979 but this time again, elections were postponed indefinitely. As the general elections were attached with the
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elections of Pakistan, consequently, after the general elections held in Pakistan in March last, the Chief Election Commissioner announced the schedule for holding general elections of the Legislative Assembly in Azad Jammu and Kashmir. The schedule was announced on. April 6, according to which nomination papers were to be filed on April 13, 14 & 15 and scrutiny was to be made on April 16 and the polls were to be held on May 15, 1985. Three days after the announcement of the schedule, i,e, on 9th April, the provisions of section 8-A and clause (xii) were enforced with immediate effect. As the enforcement of the new legislation was resented, to settle down the controversy, a meeting was convened by the Prime Minister of Pakistan in his capacity as Chairman of the Azad Jammu and Kashmir Council, on April 17. It was attended by the President, Chief Election Commissioner, concerned officers and leaders of various political parties, including Maj. Gen. (Retd) Muhammad Hayat Khan and Sultan Mahmood Chaudhry. As a result of deliberations in the meeting, section 6-A was enforced on April 18, with effect from April 6, 1985 i,e, the date of announcement of the schedule of the general elections. Section 6-A postulated chat any political party registered under section 5 or declared under section 6 of the Ordinance, to be eligible to participate in the elections to a seat in the Assembly, may, by resolution passed by Chief decision-making body, at the national level, of that party, decide to merge with another such political party so as to be absorbed by the latter party which retained its name and identity. It laid down a procedure for doing so under the authority of the Chief Election Commissioner. Thus, section 6-A provided an opening to political parties to merge into each other. 4. Five political parties. Namely, All Jammu and Kashmir Muslim Conference, Jammu and Kashmir Liberation League, Jammu and Kashmir Tehrik-i-Ammal Party, Azad Jammu and Kashmir Muslim Conference and Muslim Conference (Ghazi Group) participated in the elections. We understand that Muslim Conference (Ghazi Group) abstained from putting up any candidate in general elections. Thus, only four political parties, out of which Muslim Conference, Azad Muslim Conference and Tehrik-i-Ammal Party, registered and Liberation League, eligible under section 6, participated in the elections. Muslim Conference secured 19 seats, Liberation League 4, Tehrik-i-Ammal Party 8, and Azad Muslim Conference 2 seats. Seven seats were secured by independent candidates. Two seats reserved for women and to be elected by the directly elected members, were secured, one seat each by Muslim Conference and Tehrik-i-Ammal Party. The party position established, thus, in the general elections was as : Muslim Conference 20. Liberation League 4. Azad Muslim Conference. 2. Tehrik-i-Ammal Party 9, 5. The Political Parties Ordinance was enforced in Azad Jammu and Kashmir in September, 1979. It was in parameteria (except with necessary alternations and modifications) with the Political Parties Act, 1962 of Pakistan. Sections 4, 5, 6, 8, 8-A and 10 are relevant. The same are, therefore, reproduced : "4. Political Parties to submit accounts, etc.-Every Political Party shall, in such manner and form and at such time as may be provided by rules made by the Government, account for the source of its funds and submit its finances and accounts to audit by, an officer or authority authorised by the Commissioner in this behalf : ' Provided that every political party in existence at the time of commencement of this Ordinance, shall account for the source of its funds, and submit its finances and accounts to audit, within 15 days of the publication of the rules made under this. Ordinance.
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5. Registration of political parties.-(1) Every political party in existence at the commencement of this Ordinance shall, within one month of such commencement and every political party formed after such commencement shall, within one month of its being formed, apply to the Chief Election Commissioner for registration. (2) An application under subsection (1) shall be made on behalf of a political party by such person and in such form, and shall be accompanied by such documents besides a copy of its constitution, a list of the names of all its office-bearers at the national level and a statement of its total membership in such district, as the Chief Election Commissioner may, by notification in the official Gazette, specify. (3) The Commissioner shall register a political party applying for registration in accordance with subsection (2) if he is satisfied that the political party- (a) has published a formal manifesto, that is to say, the party's foundation document or constitution giving its aims and objects and provided therein for elections of its office-bearer being held periodically ; or (b) has undertaken to publish any amendment to any document referred to in clause (a) as and when such amendment is made; (c) has belief in the ideology of Pakistan or the ideology of the State's accession to Pakistan and the integrity and sovereignty of Pakistan ; and (d) has submitted its accounts required by section 4. (4) If a political party which has been registered under subsection (3)- (a) fails, or has failed to submit its accounts within the period specified in section 4 or the rules made thereunder ; (h) fails to hold election of any office-bearer within the time allowed by, and in accordance with, its constitution and rules ; (c) propagates any opinion, or acts in any manner prejudicial to the ideology of Pakistan or the ideology of State's accession to Pakistan, or sovereignty and integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan, or morality or the maintenance of public order, or the integrity or independence of the judiciary of Azad Jammu and Kashmir or Pakistan, or defame or brings it to ridicule the judiciary of Azad Jammu and Kashmir or Pakistan or the Armed Forces of Pakistan ; (d) receives any aid, financial or others i,e, from the Government or any political party of a foreign country, or any portion of its funds from foreign nationals ; or (e) does or omits to do any such act or thing as would have resulted in registration being refused to it in the first instance, then, without prejudice to any action that may be taken in respect of the political party under section 8, the Commissioner may, after giving the political party an opportunity of showing cause against the action proposed to be taken, cancel its registration or as the case may be, revoke declaration made in its favour under subsection (4) of section 6. (5) The cancellation of the registration of a political party under subsection (4) (5) shall be notified by the Commissioner in the official Gazette. (6) A political party which has not been registered under subsection (3) or the registration of which has been cancelled under subsection (4), shall not be eligible to participate in an election to a seat in the Legislative Assembly of Azad Jammu and Kashmir or the Azad Jammu and Kashmir Council or to nominate or put up a candidate at any such election. 6. Certain political parties to be eligible to participate in forthcoming elections.-(1) Save as expressly provided herein, the provision of section 5 shall apply mutatis mutandis where a political party seeks or has obtained declaration under subsection (4). (2) The Commissioner shall, by notification in the official Gazette, call upon the political parties which had complied with the provisions of section 4 but had not applied for registration under
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section 5 to furnish to the Commissioner within such times as may be specified in the notification answers to a questionnaire published therewith. (3) Answer to a questionnaire referred to a subsection (2) shall be furnished on behalf of a political party by such person and shall be accompanied by such documents besides a copy of its constitution and manifesto, a list of the " names of its office-bearers at the national level and a statement of its total membership in each District as may be specified in the notification published under the said subsection. (4) If after giving a political party which has furnished answers to the questionnaire as required by subsection (2) an opportunity of being heard, the Commissioner is satisfied that the party has fulfilled the requirements of subsection (3) of 'section 5, the Commissioner shall declare the political party by notification in the official Gazette to be eligible to participate in an election to a seat in Legislative Assembly and to nominate or put up a candidate at any such election. 7.............................................................................................................................. 8. Dissolution of political parties.-(1) Where the Government is satisfied that a political party is a foreign aided party or has been formed or is operating in a manner prejudicial to the Islamic ideology or ideology of State's accession to Pakistan or the sovereignty and integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan, or morality, or maintenance of public order or has contravened the provisions of section 4, it shall make such a declaration and publish the same in the official Gazette, and upon such publication, the political party concerned shall, subject to the provisions of subsection (2) stand dissolved, and its all properties and funds shall be forfeited to the Government. (2) Within fifteen days of the making of a declaration under subsections (1) the Government shall refer the matter to the Supreme Court whose decision on such reference shall be final. 8-A. The registration of a political party shall be cancelled by the Commissioner if the number of votes secured by it throughout Azad Jammu and Kashmir and Pakistan at a general election to the Legislative Assembly is less than twelve and half percent of the aggregate of the valid votes cast at the said election and less than five percent of the aggregate of valid votes cast in each district. Explanation.-The Districts in Pakistan for the purposes of this Ordinance shall mean one district comprising the seats enumerated in subsection (2) of the Delimitation of Constituencies Ordinance, 1970 and the second District comprising the seats enumerated in subsection (3) of the said Ordinance. 10. Certain disqualifications for being a member of Assembly or of the Council.-(l) A person who has : (a) at any time on or after the 16th day of April, 1975 been an office-bearer of a political party dissolved under subsection (2) of section 8 and has not after a declaration in respect of such party is made under subsection (1) of that section, resigned from or publicly announced his dissociation with such party; or (b) been convicted under section 9, shall be disqualified from being a member of Assembly or the Council or a local body and from being elected or chosen as such a member for a period of five years from the date of such dissolution, or conviction as the case may be. Explanation.-In this section, 'office-bearer of a political party' means an office-bearer at the national or district set up of that party otherwise than as a mere member of the working central, district or other committee of the party. (2) A person who has at any time on or after the 11th day of August, 1977 been a member of political party dissolved under subsection (2) of section 8 and convicted for an offence committed before such dissolution and punishable with imprisonment for a term which is not less than two years, shall be disqualified from being a member of Assembly or the Council or a local body and from
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being elected or chosen as such as a member for a period of seven years from the date of such dissolution:" 6. Section 5 (1) postulated that every political party in existence at the time of commencement of the Ordinance shall, within one month of such commencement and every political party formed after the enforcement of the Ordinance, shall, within one month of its being formed, apply to the Chief Election Commissioner for registration. Subsection (2) laid (2) No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities pre down a scheme for applying to the Chief Election Commissioner and desired the production of certain documents listed therein for the satisfaction of the the Chief Election Commissioner. Subsections (3) and (4) listed certain qualifications necessary for a political party for the purposes of its registration. Clause (e) of subsection (4) authorised the Chief Election Commissioner to cancel the registration of the political party, on the ground of one of the qualifications listed in subsections (3) and (4). Subsection (6) provided that a political party which was not registered or whose registration was cancelled, was not eligible to participate in general elections to a seat in Legislative Assembly, Azad Jammu and Kashmir or the Azad Jammu and Kashmir Council or to nominate or put up a candidate at any such election. Thus, subsection (6) laid down condition precedent that only those political parties were allowed and eligible to take part in the general elections of the Assembly and the Council which were registered in the light of the provisions of subsection (5) or declared eligible under section 6 (4) of the Ordinance. Therefore, in order to enter into the field of elections of the Assembly and Council, the registration or notification of eligibility as contemplated by the Ordinance, were prerequisites. Here, it may he stated that three political parties listed above got themselves registered with the object of participating in the elections, whereas Liberation League was declared eligible to participate in elections in the light of the provisions of the Ordinance. Thus, the participation in elections of the Assembly and Council necessitated registration of the political parties. 7. Section 8-A on the other hand, contemplates that registration of a political party shall be cancelled by the Commissioner if the number of votes secured by it throughout Azad Jammu and Kashmir and Pakistan at general elections of the Legislative Assembly is less than 12i percent of the aggregate of the valid votes cast at the said election and less than five percent of the aggregate of the valid votes in each district. The effect of cancellation of registration of a political party was given in the shape of clause (xii). It provided that a person shall be disqualified for being a member if he was elected as a nominee of a political party whose registration was cancelled by the Chief Election Commissioner as a result of operation of section 8-A of the Azad Jammu and Kashmir Political Parties (Amendment) Ordinance. Thus, the effect of deregistration, on one hand, was a disqualification of the member of the Assembly who was returned as a nominee of a deregistered political party and on the other hand, the political party also lost its status as such. 8. In view of the operation of the provisions of section 8-A, the petitioners invoked the jurisdiction of this Court to strike down the impugned provisions for their being inconsistent with the fundamental right 7. As necessary discussion shall relate to fundamental right. It will be useful to reproduce these provisions below : "7. Freedom of association.-Subject to this Act, every State Subject shall have the right to form association or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order judicial or detrimental to, the ideology of the State's accession to Pakistan". 9. The. Constitution guarantees the right to every State Subject to form association or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order. If further imposes a restriction in the manner that no person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental
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to, the ideology of the State's accession to Pakistan. The right to form an association is, therefore, subject to reasonable restrictions only on two grounds : (i) in the interest of morality; or (ii) in the interest of public order. ' The propagation or activities prejudicial or detrimental to the ideology of the State's accession to Pakistan are prohibited absolutely. 10. Mr. S. M. Zaffar, the learned counsel for the petitioners, content ended that section 8-A was inconsistent with the Fundamental Right 7 as according to him, the impugned provisions deprived a political party from political activities despite the fact that failure to comply with the conditions listed in the impugned provisions, did not fall within the ambit of reasonable restrictions contained in section 4 (4) (7) of the Constitution. Here it is relevant to state that the vires of the impugned provisions were challenged on various grounds, including- (i) that the impugned legislation was ultra vires to the Constitution ; (ii) that the impugned provisions were against the teachings of Qur'an and Sunnah ; till) that it was mala fide ; and (iv) that in the context of section 8-A, the word "and" was used disjunctively and under the accepted rule of interpretation of statutes, words '`and" and "or" are interchangeable, therefore, word "and" was to be read as "or", to avoid the absurd consequences. Likewise, the use of word "each" was interpreted as not to mean each and every district. ' The afore-listed grounds raised in the petition were dropped by the learned counsel as he confined himself only to the first ground of attack referred to above. 11. Before we approach the main proposition raised in the petition, it is also relevant to state that the respondents, in their written statements, raised certain preliminary objections and these objections were- (i) that the petitioners were not aggrieved persons as no order adverse to them was yet passed ; (ii) that the petitioners No, 3 to 12 were notified as being elected to the Legislative Assembly and were called upon to participate in the election of two seats reserved for women held on 1st June, 1985 thus the proposed relief was premature and anticipatory; and (iii) that by their conduct, the petitioners have waived their right to challenge the impugned legislation. ' In support of the preliminary objections, reference was made to the participation of petitioners Nos. 10 and 11 in the meeting presided over by the Prime Minister of Pakistan and press clippings containing the statements of petitioner No, 10. In replication to the written statement, the petitioners repudiated the allegations listed in the preliminary objections and averred that the petitioners participated in the elections as it was an objective of the petitioners as political parties and as politicians to further the, democratic process but that by itself did not debar the petitioners to get the law corrected, which, according to them, was in conflict with the Constitution and violative of the Fundamental Right. Their participation in the elections and challenging the vires of an invalid legislation, according the petitioners, were in the same direction, that is, to ensure full and healthy democratic process in the country. The press clippings containing the statements of Sultan Mamood Chaudhry dated 16th and 18th April, .1985 were appended therewith. 12. Ordinarily, a person is aggrieved when his interest or right I injured by an order or legislation, as such he has Suffered a legal grievance. A M. Munir, in his Constitution of Islamic Republic of Pakistan, at p. 390, discussed the scope of the expression "aggrieved party" as : "It may be Stated generally, that an aggrieved party is one; in prohibition whose rights are threatened, in mandamus whose rights are being denied, and in-certiorari whose rights have been affected by a decision. The word "right" here is not used in its strict juristic sense. It is sufficient if the person alleging to be aggrieved has a personal interest in the performance of a legal duty which is
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not performed, would result in the loss of some personal advantage. A party who stands to lose or gain an advantage by observance or non-observance of law is an aggrieved party." ' Mr. S. M. Zaffar invited our attention to Mian Fazal Din's case (1) wherein the scope of an 'aggrieved party' was described in the manner that the right considered sufficient for maintaining the proceedings in a writ jurisdiction was not necessarily a right in the strict juristic sense but it was enough if the applicant disclosed that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or the curtailment of a privilege of liberty or franchise. ' The aforesaid analysis leads to the inference that the petitioners are aggrieved persons in the sense that if the law which, according to them, is violative of the Fundamental Right, is allowed to remain on the statute book and the Chief Election Commissioner acts in a manner not permitted by the Constitution, it would result in the loss of their privilege, as Member of the Assembly, to adhere to the political activities to achieve the objective of their political parties. Mr. Qayum Malik, in support of his contention, cited Nisar Ahmad's case (2). That case is not helpful to the respondents as the petitioners in that case being tenants of the Evacuce Trust Board, were in occupation of an evacuee shop and a residential portion of the property and they had challenged the orders of transfer of the property to its allottee. The High Court declined to exercise writ jurisdiction as the petitioners being tenants were not considered aggrieved persons. The view of the High Court was maintained in the Supreme Court. There is no force in the objection. It is, therefore, repelled. 12. Next, it was contended that the action of the petitioners in invoking the writ jurisdiction of this Court was premature and anticipatory P I., D 1969 SC 271 (2) 1979 SCMR 299 as no adverse step was taken against them. In support of the objection, Mr. Malik cited National Steel Mill's case (1). He was asked to satisfy as to whether the respondents intended no action to cancel the registration of the political parties and to unseat the petitioners. His answer was indefinite as he had no instructions from his clients to make any commitment in this behalf. Be that as it may, the fact remains that impugned legislation if declared inconsistent with the Constitution, would be likely to be struck down irrespective of…
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