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Petitioner: Mian Muhammad Shafique VS Respondent: Azad Government Of The State Of Jammu &
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Sadaqat Hussain Raja Title:Mian Muhammad Shafique vs Azad Government Of The State Of Jammu &
JUDGMENT
Reported As: PLJ 2022 AJK 1 Result: Appeal dismissed Judgment
JUDGMENT The above titled writ petitions have been filed under Article 44 of Azad Jammu and Kashmir Constitution, 1974. 2. As the common questions of facts and law are involved in all the captioned writ petitions, therefore, these are clubbed and disposed of through this single Judgment. 3. Brief facts forming background of writ petition No. 1736-A/2021 are that petitioner is 1st class State Subject of State of Azad Jammu & Kashmir and permanent resident of Jhaag Sharif. District Neelum, besides being a social and political activist and Member of Pakistan Tehreek-i-Insaf, Azad Kashmir. It is averred that being a member of P.T.I, Azad Kashmir applied for party ticket for upcoming general elections of Legislative Assembly of AJ&K. The application of the petitioner has been considered by the party Election Board alongwith other applications and the petitioner was also interviewed by the Parliamentary Board at Central Secretariat Islamabad. It is further averred that petitioner, prior to initiating political and social activities was posted in AJ&K Assembly in capacity of. Reporter (B-16) but thereafter he resignated/left the aforesaid job on 01.09:2021. It is contended that petitioner decided to contest the 'General Election from Constituency LA-26 District Neelum and received marvelous response from general public/voters, due to this reason, respondents, iri connivance with each other, to interrupt his political career, introducing Ordinance VIII of 2021, whereby an amendment has been made by amending Section 31 in the Election Act through Section 5 of "impugned ordinance" by way of imposing of expiry of two years from the date
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of retirement in order to participate in the General Elections. It is contended that, the respondents, after admission of this writ petition for regular hearing and suspension of Section 5 of "impugned Ordinance" by this Court vide order dated 26.05.2021 introduced the impugned Ordinance in Azad Jammu and Kashmir Assembly on 28.05.2021 which was passed as Act XIII of 2021, 'dated 03.06.2021, whereby Section 31 of Act XVIII of 2020 has been amended, by directly challenging the proprietary and authority of this court. It is further contended that Section 5 of the impugned Ordinance and impugned Act have snatched the vested rights of the petitioner especially those enshrined in Article 24 read with Article 4(4)(15) of Interim Constitution, 1974, therefore, same is not maintainable. It is maintained that the impugned Ordinance has been issued on 10.05.2021 without approval of the cabinet which is evident from the letter of Secretary Law, Justice, Parliamentary Affairs and Human Rights dated 20.05.2021 (Annex.PF). It is zealously contended that it has been conclusively settled by the Apex Court of Pakistan in case reported as "PLD 2016 SC 808, while interpreting Article 89 of Constitution of Islamic Republic of Pakistan, 1973 that any Ordinance, promulgated without approval of Cabinet is ultra vires of constitution and has no value in eyes of law. It is further contended that Article 89 of Constitution of Islamic Republic of Pakistan, 1973 is a ditto copy of the Article 41 of AJ&K Interim Constitution, 1974 therefore, rule of law laid down by Supreme Court of Pakistan is equally applicable under AJ&K Constitution. It is averred that the impugned Ordinance has been issued in clear violation of Rules 23(1)(b) and 25(1) & (6) of Rules of Business 1985, hence, same is not sustainable. It is further averred that the Election Act, 2020, was in existence at the time of resignation of petitioner from his service, placed no restriction upon retired government servants for participation in election prior to expiry of two years from the date of their retirement/relinquishing the job. It is prayed that by accepting the writ petition, the impugned Ordinance (Ordinance VIII of 2021) and impugned Act (Act XIII of 2021) generally and Section 5 of impugned Act and impugned Ordinance specifically (whereby Section 31 of Azad Jammu and Kashmir Election Act, 2020 has been amended) may kindly be quashed by declaring the same as illegal, ultra vires of Interim Constitution, 1974 and being violative of vested/accrued constitutional rights of the petitioner, in the larger interest of justice. 4. The writ petition was admitted for regular hearing on 26.05.2021 and written statement were sought from Respondents and needful has been done on behalf of respondents. Later on amended writ petition was filed with permission of the Court which was accepted and amended written statement was also filed on behalf of private-respondent, wherein the claim of the petitioner has been refuted in toto. 5. Brief facts forming background of writ petition No. 1793/2021 are that petitioner being member of PML(N), Azad Jammu & Kashmir applied for the party ticket of Pakistan Muslim League (N) Azad Jammu & Kashmir for upcoming General Elections of Legislative Assembly of Azad Jammu and Kashmir on 06.04.2021. The application of the petitioner has been considered by the party Election Board alongwith other applications and the petitioner was also interviewed by the parliamentary Board at Central Secretariat Islamabad (PMLN). It is contended that the petitioner has served in local Govt. and Rural Development as community Development Officer/incharge Project Manager and thereafter resigned/left the aforesaid job on 01.09.2020, whereas the actual retirement dated was 01.01.2024 but for the purpose to contest the election, got retirement earlier. It is further contended that the petitioner, being cognizant of the law, enforcement in Azad Jammu and Kashmir Election Act, 2020 (enforced on 24.06.2020), herein, after shall be referred as "Election Act", was fully qualified for contesting upcoming General Elections of Legislative Assembly as no barrier existed under law for the retired Government servant who had left the job to participate in the General Elections prior the expiry of two years from the date of quitting the government job. It is contended that amending the Election Act, 2020 through impugned amendment vide ordinance dated 10.05.2021 by imposing the restriction, the petitioner and other State Subjects are restrained
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from contesting the election, which is against the fundamental rights guaranteed by Interim Constitution, 1974. It is further contended that Ordinance was issued on 10.05.2021 without fulfilling the procedure and due process of law, while the said summary for the cabinet approval was presented before Cabinet on 20.05.2021 by Respondent No. 2. It is prayed that by accepting the writ petition, the impugned Ordinance (Ordinance VIII of 2021) may kindly be quashed by declaring the same as illegal, ultra wires. 6. Brief facts of writ petition No. 2055/2021 are that being member of Pakistan Tehreek-e-Labaik Azad Kashmir applied for the party ticket of Pakistan Tehreek-Labaik AJ&K for upcoming General Election of Legislative Assembly of Azad Jammu and Kashmir. He was considered by the party and he was also interviewed by the Parliamentary Board and petitioner is nominated by the party as candidate of Tehreek-e-Labaik. It is contended that prior to initiating political and social activities, was performing as Deputy Custodian in the office of Custodian Evacuee Property and was retired from service on 16.03.2020. It is contended that according to Azad Jammu and Kashmir Election Act, 2020, he was qualified person for upcoming general election of Legislative Assembly as no barrier existed under law for retired government servants who had retired from service for General Election prior the expiry of two years from the date of quitting the government job. The petitioner decided to contest the General Election from LA-2 District Mirpur and received marvelous response from General Public/Voters due to this reason, respondents, in connivance with each other, to interrupt his political career, enforced Ordinance VIII of 2021 and now through impugned Act has been passed, whereby an amendment has been made by amending Section 31 in the Election Act through section of impugned ordinance by way of imposing of expiry of two years from the date of retirement in order to participate in the general election. The petitioner has almost taken same stands as adopted in other connected writ petitioner and finally prayed by accepting writ petition, the impugned Election Amended Act, 2021 (Act XIII of 2021) dated 03.06.2021 generally and its Section 5 specifically may kindly be quashed by declaring the same as illegal, ultra wires of Interim Constitution, 1974 and being violative of vested/accrued constitutional rights of the petitioner, in the larger interest of justice. 7. Respondent No. 8 in reply of writ petition filed written statement wherein it is contended that the petitioner remained failed to establish any substantial legal right on the basis of which he stand legally entitled to file the writ petition, furthermore, no such proof is appended with the writ petition, therefore, writ petition is liable to be dismissed on this sole ground. It is further contended that a valid statute enacted by the legislature cannot be declared unconstitutional lightly. Finally, it is prayed that the writ petition may be dismissed. 8. In writ petition No. 2143/2021 the petitioner Muhammad Siddique Raja has also taken same stand as adopted by the other petitioners in the abovementioned identical writ petitions hence, need not to be incorporated in detail herein. It is prayed that by accepting the writ petition the impugned legislation i.e. Article 5 of Ordinance VIII of 2021 & Section 5 of Act XIII of 2021 whereby 'Section 31 of Azad Jammu and Kashmir Election Act, 2020 has been amended, may kindly be declared ultra- vires to interim constitution 1974 and same may be set-aside. 9. Written statement has been filed on behalf of respondents, wherein they refuted the stance of the petitioner and finally prayed for dismissal of the writ petition. 10. Mr. Barrister Humayun Nawaz Khan, the learned counsel for petitioner Mian Muhammad Shafique reiterated the facts and grounds taken in the writ petition and contended that in light of Article 24 read with Article 4(4)(15) of Interim Constitution, 1974, through Section 5 of the impugned Ordinance and impugned Act, the vested rights of the petitioner has been snatched. He further contended that the impugned Ordinance has been issued on 10.05.2021 without approval of the cabinet which is evident from the letter of Secretary Law, Justice Parliamentary Affairs and Human Rights dated 20.05.2021 (Anex.PE). He argued that it has conclusively been settled by the Apex Court
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of Pakistan while interpreting Article 89 of Constitution of Islamic Republic of Pakistan, 1973 that any Ordinance, promulgated without approval of Cabinet is ultra vires of Constitution and has no value in the eye of law. The learned counsel placed reliance on the case titled "Mustafa Impex vs. Government of Pakistan & others reported as PLD SC 2016 SC 808. He further argued that the impugned Ordinance has -been issued in clear violation of Rules 23(1)(b) and 25(1) & (16) of Rules of Business, 1985, hence, same is not sustainable. He maintained that Section 5 of the impugned Act could never have been presented in the Legislative Assembly as the impugned Ordinance was presented in the Legislative Assembly on 28th Day of May, 2021 under Article 41(2) of AJK Interim Constitution, 1974 read with Rule 34 of AJ&K Rules of Business, 1985 and not as separate Bill under Rule 32 of AJ&K Rules of Business, 1985. He further maintained that the impugned Ordinance as well as the impugned Act, the Respondents introduced sub-Section 2-A in Section 31 of the Election Act which impliedly allowed and bestowed the power to the Election Commission to disqualify a candidate on the rational of any sort of conviction which ex-facie amounts to creation of a parallel system for adjudication which is against the principle of trichotomy of powers under constitution, hence, the impugned ordinance is liable to be set-aside. The learned counsel contended that the impugned ordinance and impugned Act offend the Article 56 (C) of the Interim, Constitution which provides that if any law is going to be repealed it will have no effect upon accrued rights already created in favour of the beneficiaries by virtue of repealed law, likewise how by way of amendment through temporary piece of legislation a right to participate in election created in favour of the petitioner under an Act of Assembly can be snatched and extinguished, therefore, keeping in view this aspect of the matter the impugned ordinance is liable to be quashed, Moreover, section of General Clauses Act, 1897 also protects the accrued rights of the petitioner. The learned counsel finally prayed that by accepting the instant writ petition, the Impugned Ordinance (Ordinance VIII of 2021) and Impugned Act (Act XIII of 2021) generally and Section 5 of impugned Act and Impugned Ordinance specifically (whereby Section 31 of Azad Jammu and Kashmir Flection Act 2020 has been amended) may kindly be quashed by declaring the same as illegal, ultra wires of Interim Constitution, 1974 and being violative of vested/accrued constitutional rights of the petitioner, in the large interest of justice. The learned counsel in support of his submission, placed reliance upon the following case law: PLD 1985 AJK 95, relevant page 128, 2001 SCR 380. 11. Syed Shafqat Hussain Gardezi, the learned counsel for petitioner Ch. Muhammad Khalique Zaman owned and supported the arguments of Barrister Humayun Nawaz, Advocate and also referred the case law i.e. PLJ 2005 Karachi 163 and PLD 2012 Bal. 57. 12. Mr. Muhammad Saqib Javed, Advocate representing Muhammad Siddique Raja (petitioner) also supported the arguments advanced by Barrister Humayun Nawaz Khan, Advocate and contended that his client was retired from service on 08.11.2019 whereby at the relevant time, AJ&K Election Act, 2020 was in the Held hence, the impugned amendment is against the law and rules, which may be set-aside. The learned counsel prayed that by accepting the petition, the impugned legislation i.e. Section 5 of Ordinance VIII of 2021 and Section 5 of Act XIII of 2021 whereby Section 31 of Azad Jammu & Kashmir Election Act, 2020 has been amended, may kindly be declared ultara- vires to interim constitution 1974 hence, may be set-aside. 13. Syed Abdul Basit Gillani, Advocate appeared on behalf of Kh. Muhammad Akbar for petitioner Raja Fatehullah Khan, owned the arguments of Barrister Humayun. Nawaz Khan, learned counsel for the petitioner-Mian Muhammad Shafique and prayed for acceptance of the writ petition. 14. Mr. Tahir Aziz Khan, the learned Legal Advisor for respondent-AJ&K Election Commission while controverting the arguments of the learned counsel for the petitioner contended that petitioners are not aggrieved person as they failed to point out any infringement of their legal grievances by filing these petitions. He argued that petitioners remained failed to substantiate that a valid statute
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enacted by the legislature cannot be declared unconstitutional lightly. He further argued that without violation of the constitutional provisions, the law made by Assembly/Parliament or a state legislature is not declared bad. The learned counsel in support of his submission referred the following case law: 1. 2011 SCMR 1537. 2. 2019 SCMR 859. 3. 2018 SCMR 1885. 4. 2010 PLD 983. 5. 2013 SCMR 34. 6. 2016 SCMR 69. 7. 2001 SCR 380. 15. Mr. Sagheer Javed, the learned counsel for intervene Ehsan Ul Haq, Advocate that the contesting of Election is not an absolute fundamental right, it is a right, guaranteed with certain conditions, subject to some qualification and disqualification and the fundamental rights which are guaranteed under certain condition can be amended by the Legislature and the Court cannot act as the Legislature. He emphasized that right of service is guaranteed on the basis of Educations, age and other qualifications mentioned in the Civil Servants Act. Similarly, right of vote is also subject to prescribed age and other qualifications as mentioned in the Constitution and Electoral Laws. He further argued that similarly, right to contest Election is also restricted with certain conditions. Finally, the learned counsel prayed for dismissal of the writ petitions. 16. Raja Ayaz Farid Khan, the learned A.A.G appearing on behalf of official-Respondents argued that the qualification for Member of Legislative Assembly is mentioned in Article 24 of the Azad Jammu and Kashmir Interim Constitution, 1974 where disqualification is also mentioned and according to aforesaid Article 24(2)(f) "a person shall be disqualified to be elected as, and to be, a Member of the Assembly if he is otherwise disqualify from being a Member of the Assembly by the Constitution or by under any other law. He further argued that the petitioners are not qualified to contest election according to Section 5 of the Election VIII of 2021. He contended that same Article is also incorporated in the Constitution of Pakistan, 1973 as Article 63(k) and this section was also borrowed from the Constitution of Pakistan, hence, it is not based on any mala fide nor any illegality has been committed by the legislature. He submitted that the petitioner, Mian Muhammad Shafique, in (Writ Petition NO. 1736-A/2021) placed his resignation on 12.08.2020 before Secretary, AJ&K Legislative Assembly Muzaffarabad, which was accepted vide order dated 08.09.2020, he was relieved from service w.e.f 01.09.2020. He further submitted that according to the contents of resignation, the petitioner resigned due to his personal engagements. The learned A.A.G mentioned that in Rule 23. sub Rule (2) it is provided, that the Prime Minister, in cases of urgency or other exceptional circumstances, can give directions as to the manner of disposal of a case without prior reference to the Cabinet, but such case shall be reported to the Cabinet at the earliest opportunity thereafter. He maintained that at the time of promulgation of Ordinance, the case was presented before the Prime Minister in light of Rule 23 ibid, revised by the Azad Govt. of the State of Jammu and Kashmir Rules of Business 1985, in Rule 25 and the Ordinance was issued on 10.05.2021 and the matter was presented before the Cabinet in the first earliest opportunity on May, 2021 and the Cabinet approved draft bills with the direction to place it before the Assembly. He also placed before the Court the decision of Cabinet of AJ&K, held on 24th May 2010. He argued that in the light of decision of Cabinet, the Ordinance was presented before Assembly on 26.05.2021. He maintained that it is not bad piece of Legislation. He maintained that the Constitution empowers the Legislature to make laws for the territory of Azad Jammu and Kashmir, according to Article 31 and the restrictions have been imposed in the same Article. He argued that the impugned
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Act is not against the restrictions imposed by the Constitution and principles laid down in pronouncements of the Superior Judiciary. He requested for dismissal of the instant writ petitions. 17. I have heard the learned counsel for the parties and gone through the record with utmost care. 18. The moot points which need resolution are; whether the impugned Ordinance placed before the Legislative Assembly was valid or not? and whether the impugned Act is against the fundamental rights of the petitioners or not? 19. I have summoned the record from the Law Department and perusal of file reveals that official- Respondents introduced Ordinance VIII of 2021, whereby an amendment has been effected in Section 31 of the Election Act. 2020. Through Section 5 of "impugned Ordinance" by way of imposing restriction on ex-civil servants to contest elections before expiry of two years from the date of retirement. The moot point raised by the learned counsel for the petitioners that the impugned Ordinance has been issued on 10.05.2021 without approval of the cabinet which is evident from the letter of Secretary Law, Justice, Parliamentary Affairs and Human Rights dated 20.05.2021 (Annex.PF). 20. To dig up the truth, Rule 23 of Rules of Business, 1985 is hereby reproduced as under: '"23. Cases to be brought before the Cabinet: (1) The following cases shall be brought before the Cabinet: (a)........................................................................................................... (b) promulgation and withdrawal of Ordinance; (c) ........................................................................................................... (d) ........................................................................................................... (e) ........................................................................................................... (f) ........................................................................................................... (g) ........................................................................................................... (h) ........................................................................................................... (i) ........................................................................................................... (2) Notwithstanding the Provisions of sub-rule (1), the Prime Minister may, in cases of urgency or other exceptional circumstances, give directions as to the manner of disposal of a case without prior reference to the Cabinet, but such case shall be reported to the Cabinet at the earliest opportunity thereafter." {underlining is mine) 21. A perusal of above-reproduced Rule shows that the Prime Minister, in cases of urgency or other exceptional circumstances, may give directions as to the manner of disposal of a case without prior reference to the Cabinet, but such case shall be reported to the Cabinet at the earliest opportunity thereafter. It shows from the record that at the time of promulgation of Ordinance, the case was presented before the Prime Minister in light of Rule 23 ibid, revised by the Azad Govt. of the State of Jammu and Kashmir Rules of Business 1985, in Rule 25 and same Ordinance was issued on 10.05.2021 and therefore, the matter was presented before the Cabinet in the earliest opportunity on 24th May, 2021 i.e the 1' meeting and the Cabinet approved draft bills with the direction to place it before the Assembly and decision of with the direction to place it before the Assembly and decision of cabinet of AJ&K, held on 24th May 2021 is available on the file which is also reproduced as under- AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (CABINET WING) "Muzaffarabad" 25th May, 2021. To The Secretary,
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Law, Justice, Parliamentary Affairs & Human Rights Department, Azad Govt. of the State of J&K, Muzaffarabad. Subject: Decision of Cabinet taken in 48th Meeting of AJ&K Cabinet dated 24th May, 2021 on Draft Bills to be presented in upcoming Election of Legislative Assembly. I am directed to refer to the subject cited above and convey that following draft bills were presented in the 48th Meeting of Cabinet dated 24th May. 2021; the Cabinet has unanimously approved draft bills with direction that following Bills may be presented in upcoming session of the Assembly without waiting for the issuance of the minutes: REGULAR AGENDA ITEMS i) The Repeal of Azad Jammu & Kashmir-Council Laws Act, 2021 (Presented by Law Department) ii) The President's Pension (Amendment) Act, 2021 (Presented by Law Department). iii) The Azad Jammu & Kashmir Elections (Amendment) Ordinance, 2021 (Presented by Law Department) iv) The West Pakistan Epidemic Diseases (Amendment) Ordinance, 2021 (Presented by Law Department). EX-AGENDA ITEMS i) ........................................................................................................... ii) ........................................................................................................... iii) ........................................................................................................... iv) ........................................................................................................... v) ........................................................................................................... 2. In view of the above, aforesaid decisions of the Cabinet are conveyed for further necessary action on the part of Law Department Signature (Muhammad Nadeem Abbasi) Deputy Secretary S&GAD (Cabinet) 22. In the light of decision of Cabinet, the bill was…
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