1. The petitioner through the instant writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, has prayed to the Court for a direction to restrain the official respondents from appointing Respondent No. 4 as Member of the Election Commission of Azad Jammu and Kashmir as he has crossed the upper age limit provided in the Azad Jammu and Kashmir Members of the Election Commissioner (Terms and Conditions) Act, 2019. It has further been prayed to direct official responde nts to consult Chief Election Commissioner of Azad Jammu and Kashmir before appointment of a Member of the Election Commission.
2. Precise facts of the case are that the petitioner is First Class State Subject of Azad Jammu and Kashmir and is a practicing member of Central Bar Asso ciation Muzaf farabad. It is contended that the petitioner believes in supremacy of law and merit. It is conte nded that under Article 50 of the Azad Jammu and Kashmir Interim Constitution, 1974, Election Commission shall consist of Chief Election Commissioner and two Members. It is further contended that in order to determine the terms and conditions of the service of Members Election Commission the Azad Jammu and Kashmir Members of the Election Commission (Terms and Conditions) Act, 2019 was promulgated vide Act XIV of 2019. Section 4 of the mentioned Act provides 65 years maximum age limit for appointment as Member Election Commission. The sole claim of the petitioner is that the official respondents quite contrary to the mentioned Act issued the Azad Jammu and Kashmir Members of the Election Commission (Terms and Conditions) (Amendment) Ordinance, 2020, whereby the respondents with mala fide intention and for ulterior motive enhanced the upper age limit for appointment as Member Election Commission from 65 to 66 years just to accommodate Respondent No. 4 who has crossed the age of 65 years. It is submitted that Ordinance No. VI of 2020 is liable to be struck down as having been issued with mala fide intention and in contravention to the provision of Interim Constitution, 1974 and Act XIV of 2019.
3. Respondents contested the petition by filing written statement wherein they refuted the stance of the petitioner and submitted that the petitioner has no locus standi to file the writ petition. It is further submitted that the petitioner did not come to the Court with clean hands. It is stated that ' the petitioner has failed to point out any illegality committed by the respondents while issuing the impugned Ordinance, hence, the writ petition is liable to be dismissed. It is further stated that the impugned amendment has been brought in the Act of 2019 in order to streamline the provisions of Interim Constitution, 1974, and Election Commission Act with regard to appointment of Member Election Commission. The grounds of the writ petition have also been denied.
4. The petitioner is a practicing advocate of this Court who argued that the Act XIV of 2019 provides a maximum age of 65 years for appointment as a Member of the Election Commission of Azad Jammu and Kashmir . It is stated that in order to benefit Respondent No. 4 an amendment has been introduced in Section 4 of the mentioned Act and upper age limit has been enhanced to 66 years instead of 65 years. The petitioner empathetically argued that Sardar Muhammad Rahim Khan, the respondents, has crossed the age of 65 years and the impugned Ordinance No. VI of 2020 has been issued just to accommodate him. It is further argued that provisions of an Act of Assembly cannot be replaced by issuance of an Ordinance. The learned counsel further submitted that approval of the cabinet has not been obtained before issuance of impugned Ordinance and even mandatory provisions of Article 7 of the Interim Constitution, 1974, have been overlooked. It is explained that the impugned Ordinance has not been promulgated on the advice of the Govt. so it is a bad piece of legislation which needs to be struck down. The learned counsel relied upon PLD 2016 Supreme Court 808 in support of his version. The apex Court of Pakistan has examined the rules of business and has further defined the terms "Government" and "Cabinet" in the referred judgment.
5. On the other hand, the learned AAG argued that the impugned Ordinance VI of 2020 has been promulgated to bring the provisions of Section 3 of the Act XIV of 2019 in conformity with Interim Constitution, 1974. He explained that as per Article 50(6) of the Interim Constitution, 1974, the members of the Commission possessing the qualification as mentioned for Commissioner in sub-Article (5) shall be appointed by the President on the advice of the Prime Minister . He further diverted my attention to sub-Article (5) which requires that a person who has been a Judge of the Supreme Court or High Court or has been a civil servant B-21 and above in the service of Azad Jammu and Kashmir , is eligible to be appointed as member of the Election Commission, The learned State counsel explained that a Judge of the Supreme Court retires at the age of 65 years under sub-Article [7] of Article 42 of the Interim Constitution, 1974. He argued that it is not possible for a Judge of the Supreme Court to be appointed as Chief Election Commissioner- after his retirement in presence of ban of 65 years of upper age limit under Section 4 of Act XIV of 2019. He further explained that it was in these circumstances that Section 4 of the Act, 2019 has been appropriately amended vide impugned Ordinance VI of 2020. The learned couns el further argued that a formal approval of the cabinet was obtained before promulgating the impugned Ordinance and provided documents to that extent.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. A careful examination of the legal proposition involved in the case shows that there is no legal infirmity in promulgation of the impugned Ordinance No. VI of 2020. An approval of the Cabinet has been obtained before issuance of the Ordinance and obviously after approval of the Cabinet the case is forwarded to the President by the Govt. for issuance of Ordinance. The requirements of promulgation have therefore been properly met.
8. The main argument of the petitioner is that the impugned Ordinance has been issued with mala-fide. It may be stated that the expression 'mala fide' has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide. Actions not otherwise bona fide, however by themselves would not amount to be mala fide unless the same is in accompanimen t with some other factors which would depict a bad motive or intent on the part of the doer of the act. It is celebrated principle of law that no mala fide can be attributed to the legislature/ parliament who is empowered under the Constitution to legislate on any subject. The Court can strike down a law on the ground that the same is violative of constitutional provisions but a law cannot be struck down by the Court on the ground of mala fide. This view finds strength from a marked judgment of the Supreme Court of Pakistan rendered in case titled Sh. Liaquat Hussain and others vs. Fede ration of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 Supreme Court 504).
9. In the instant case the explanation furnished on behalf of the respondents for promulgation, of the impugned Ordinance also removes C the factor of mala fide alleged by the petitioner . A member of the Election Commission possessing the qualification under sub-Article (5) of Article 50 of the Interim Constitution, 1974, is eligible to be appointed as such. The sub-article (5) shows that a person who has been a Judge of the Supreme Court is eligible to be appointed as Chief Election Commissioner . A Judge of the Supreme Court retires at the age of 65 yeas as per the provisions of sub-Article (7) of Article 42 of the Interim Constitution, 1974. So the provision of sub-Article (5) of Article 50 became redundant to the extent of a retired Judge of the Supreme Court because he cannot be appointed as Chief Election Commissioner if upper age limit of 65 yeas provided under Section 4 of Act XIV of 2019 remains intact. The impugned Ordinance has therefore, rightly been promulgated to remove anomaly between subordinate legislation in Act XIV of 2019 and the provisions of Interim Constitution, 1974.
10. It is true that Respondent No. 4 is above the age of 65 and below 66 years as per the attached record. He retired as Secretary to Govt. in the year 2014 and completed 65 years of his age in the year 2019 but the impugned Ordinance cannot be struck down to devoid the respondent from its benefits, particularly when it has been issued by the competent authority .
11. It may be added here that if Respondent No. 4 is eventually benefited d by the impugned amendment it cannot be presumed that the amendment has been introduced for mala-fide reasons.
12. For the foregoing reasons, the writ petition is dismissed with no order as to the costs.