"What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. This law will stand still whilst the rest of the world goes on; and that will be bad for both."[1] 1 Through the titled writ petition filed under Article 44 of Azad Jammu and Kashmir Interim Constitution, 1974, the petitioners have sought infra relief:- "It is, therefore, very humbly prayed that in light of pleadings an appropriate writ may kindly be issued in favour of the petitioners against the respondents in the following manner: i. Direction may kindly be issued to respondents to upgrade the Government Girls Primary School Saonaar as Girls Middle School Saonaar immediately; and Direction may be issued to respondents to provide required teaching staff in upgraded Girls Middle School Saonaar."
FACTUAL SPECTRUM
2. Petitioners are fathers of the students who are studying at Girls Primary School Saonaar, Boys Primary School Saonaar Bala and Boys Primary School Hanthi, resident of Union Council Gurez, Tehsil Sharda, District Neelum. Petitioners allege that total 270 students are studying in primary session of 03 Primary Schools in Saonaar and Hanthi but due to non-availability of Middle Schools in the vicinity, the future of the students is in dark clouds; while getting proper education of the subjects of the State is their innate need besides a fundamental guaranteed right enshrined in the Interim Constitution, 1974, and the Government is responsible to provide all such facilities of education and develop/upgrade the government institutions according to requirement and necessities of the State Subjects. Petitioners allege that the villages Saonaar and Hanthi are far- flung areas of the State, comprising of 03 villages namely: (1) Saonaar (2) Saonaar Bala (3) Hanthi and total population of the said areas is approximately 5,000/-. They contend that unfortunately, the Government of Azad Jammu and Kashmir has failed to facilitate/provide education facility in the vicinity besides repeated demands and requests made by the public. Petitioners contend that during visit of the worthy Prime Minister of AJK in the area in year 2017 at Halmat and that of Secretary Education in 2018, the local inhabitants submitted applications and raised demands for up-gradation of the schools in the area but all in vain. Petitioners vehemently contend that due to non-availability of middle School in the area, children/students particularly female students cannot get further education, thus, non-providing the said facility is the violation of the fundamental guaranteed right i.e. Right to Education, and same is violation of constitutional rights of Subjects of the State and utter disregard of constitutional provisions, i.e. right of education, equality before law and equal protection of law. The petitioners finally prayed for acceptance of the instant writ petition.
RESPONDENTS RETORT
3. Written statement has been filed on behalf of official respondents wherein the claim of the petitioners has been negated. They contended that the educational institutions have been provided by the Government at a stone's throw of every two kilometers and schools have been established in the district Neelum wherein the villages from which the petitioners belong to, are also included. They vehemently contended that the Government has already provided/established educational institutions in every nook and corner of the State including district Nee.lum without any discrimination, while the educational institutions are established and upgraded through a government policy and mere at the whims and wishes of some persons, said institutions cannot be upgraded. In written statement, they prayed for dismissal of the writ petition.
4. Arguments heard. Record appended with the petition has also been perused.
VERDICT OF THE COURT
5. The claim of the petitioners is that the direction may be issued to the respondents to upgrade the Government Girls Primary School Saonaar as Girls Middle School Saonaar and required teaching staff of the said school may be provided accordingly.
6. Petitioners filed numerous applications before the concerned echelon/Authority for up- gradation of Girls Primary School Saonaar as Girls Middle School but all in vain. Perusal of the application appended with the writ petition as "Annexure PB" reveals that inhabitants of village Saonaar submitted application to the worthy Prime Minister of the State of Azad Jammu and Kashmir on 16.08.2020 for approval and upgradation of Girls Primary School Saonaar as Girls Middle School and same was received in the office of Prime Minster on 18.08.2020. The petitioners in the said application prayed as under.
7. Despite approaching the concerned quarters as well as the worthy Chief Executive of the State, no action was taken by the respondents on the application of the inhabitants of the vicinity.
8. It is enjoined upon the official quarters to adhere the Constitutional fundamental guaranteed rights of the Subjects of the State and provide them administrative justice as enshrined in the Interim Constitution, 1974. Concept of the "Better Government" provided in the preamble of the Constitution is a road map for the government institutions to ensure all the basic facilities, particularly to give basic education to the people and remove/eliminate all the hurdles in order to bring prosperity and equal rights to the Subjects of the State. Though the preamble to a Statute is not an operational part of the enactment but it is a gateway, which discusses the purpose and intent of the Legislature to necessitate the legislation on the subject and also sheds clear light on the goals that the legislator aims to secure through the introduction of such law. The preamble of a Statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of law.[2] LEGAL ANTHROPOLOGY OF FUNDAMENTAL RIGHTS
9. Sir John Salmond defines "right" as a legally recognized and protected interest. Therefore, "any interest which the law recognizes and enforces, whatever be the nature or extent of that recognition or enforcement, is a legal right".[3] Fundamental Rights are the basic rights and freedoms which are available to everyone in a country though some may be restricted to its citizens.[4] According to Justice Jackson of the United States Supreme Court, the purpose of the fundamental rights is to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials and to establish them as legal principles to be applied by the Courts."[5] Even explicit constitutional designation is not required for all rights; a right can be claimed if it is integral to, or necessary for the effective exercise of, an existing fundamental right[6] as 'penumbra rights'[7] which refer to implied rights that are not explicitly stated in the Constitution, but are considered to be inherent in the explicitly stated rights.
The essential nature of fundamental rights in a living Constitution demands their progressive and purposeful interpretation to advance freedom, autonomy and choice, while simultaneously safeguarding the evolving sensibilities of the people. This dynamism is the defining feature of a vibrant constitutional democracy.[8]
10. Under Article 4 sub Article 23 of the Interim Constitution, 1974, it is incumbent upon the State to provide the education without any discrimination. It is relevant to reproduce the said Article as under:
(4) The Rights.
23. Right to education.--The State shall provide free and compulsory education to, all children of the age of five to sixteen years in such manner as may be determined by law.
Furthermore, Article 26 of the Universal Declaration of Human Rights[9] (UDHR) underscores the right of education which shall be free and compulsory at least in the elementary and fundamental stages. Moreover, Article 28 of the United Nations Convention on the Rights of the Child[10] (UNCRC) even advances to a higher echelon by declaring that children and young people have the right to education no matter who they are: regardless of race, gender or disability even if they are in detention or a refugee. These Articles are suffice to accentuate the significance of acquiring education even in precarious situations and to provide the same free and compulsory to all children having 5 to 16 years age is indeed the onerous responsibility of the State.
11. Concept of better government and administration of AJK is provided in the preamble of the Interim Constitution of 1974 (hereinafter called Constitution). Principles of Policy are enshrined in Article 34 of the Constitution. Article 3-I speaks of 'social justice' while Article 3-J stands for 'social and economic well-being of the people', vis a vis Article 4 guarantees the certain specific rights including right No. 1. i.e. Security of person. This right in fact is mother of other fundamental rights enumerated in Article 4.
It is useful to reproduce the right No. 1 as infra: Article 4(1) Security of person No person shall be deprived of [life or] liberty save in accordance with law.
12. In Mohini Jain v. State of Karnatka,[11] It was ruled that the right to education is an integral part of the right to life and the word 'life' as has been expounded by the Supreme Court of Pakistan in Shela Zia v. WAPDA,[12] covers all facets of human existence. "Life" cannot be restricted to vegetative or animal life or mere existence; infact it includes all amenities and facilities which a person, born in a free country, is entitled to enjoy with dignity.
13. Another significant fundamental right is Right No. 15 which speaks as infra;
15. Equality.of State Subjects.--(1) All State Subjects are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination against any State Subject on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.]
14. As adumbrated, it is a double-sided mirror, from one side in the case there is much ado about nothing, from other side there seems a great deal than that meets the eye. Thus, it is better to proceed to deal with the matter as far as eye can see without blinkers let alone with a telescope.
15. The petitioners belong to a remote hilly area of Azad Kashmir, where life remains miserable and tough on account of indiscriminate firing across the Line of Control (LoC), on indigenous innocent inhabitants by the inimical Indian military which has always been retorted swiftly by our gallant Armed Forces alongwith valiant Law Enforcement Agencies, resultant of which a large number of younger generation could not acquire and complete education, but despite these obstacles the brave inhabitants of such like areas of AJK did not take refuge and opted to reside in their hamlets and are still facing the music.
16. Every State Subject is entitled to life i.e. security of person as enjoined in the Article 4(1) of the Constitution.
17. Security of person guaranteed by the Interim Constitution 1974 cannot be taken as only physical existence of life but the quality of life, particularly for the people of remote and hilly areas, in a sense to provide easy access to educational institutions which is access to life itself, thus, the right to acquire quality education at door steps, nearest places and access to road are also part and parcel of fundamental right i.e. security of person (which is Synonymous to right to life).
18. Let's cut to the chase and address the root cause qua non-adherence of Fundamental Rights.
Basic issues attached to the fundamental rights guaranteed by the Constitution went unattended or the people at the helm of affairs tried to sweep such like issues under the rug.
ADMINISTRATIVE JUSTICE 19, At the outset I would like to hold that the root cause of the administrative injustices and mal- administration are unbridled and un-coached discretionary powers, well said by Lord Acton that power corrupts and absolute power corrupts absolutely. Albeit, it is a systematic drawback and cannot be rooted out with just a stroke of pen, however at least, it can be highlighted and attention of the relevant quarters can be drawn to the matter as:
20. James Madison, known as the father of the American Constitution, identified the central dilemma of Constitutionalism; how to empower the government sufficiently for its tasks and, at the same time how to limit it from overreaching the individual. He described this most elegantly in federalist paper No. 51 which was quoted in Para No. 4 of the Judgment of the Supreme Court of Pakistan[13] as follows: "It may be a reflection on human nature that such devices should be necessary to control the abuses of Government but what is Government itself but greatest of all reflections on human nature, if men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in next place oblige it to control itself."
EXECUTIVE POWER
21. To understand the nature of Executive power, I may begin by examining its relation with the Judicial power and its relation with the Legislative power.
22. While the Judicial power is the administration of justice in accordance with law, the Executive power is the administration of government in accordance with law.
23. The difference between the departments (organs of the State) undoubtedly is that the Legislature makes, the Executive executes and the Judiciary construes the law.[14]
24. The Executive carries on the administration of the country in accordance with the powers conferred on it by law. No inherent or implied powers are bestowed by the Constitution to the Executive. This misconceived and misunderstood concept of Executive power gives birth to illegalities and administrative injustices. Unfortunately, this concept is a mistake.[15]
25. In common practice in a parliamentary system, the Leader of a political party, who wins the elections, becomes the Prime Minister and therefore the head of the Executive calling the shots. He provides the leadership under a parliamentary system, the Executive has the primary responsibility for the formulation of government policy and its transmission into law. In the Cabinet headed by the Prime Minister, the Cabinet virtually controls both the executive and the legislative powers.[16]
26. Thus, to run the government is the responsibility of the Executive under the Constitution and it is an indisputable corollary of the democratic principles that the Executive must be responsible to the Legislature for its acts.
27. There is a marked difference between executive power and executive function. Executive functioning. although is in Quasi executive capacity but is not dressed up with the executive power.
(Emphasis supplied)
28. Seemingly it is a reasonable demand of the petitioners to ask for upgradation of school in a sense to facilitate the students to acquire further education in the same institution, in order to avoid the risk of accidents and anticipated mishaps, which are faced by the inhabitants.
29. Our Constitution is based on Montesquieu's System of Separation of Powers (i.e. Tries Politica), knowing the borderlines of troika and avoiding to abdicate the parameters of Judicial review, I am not inclined to comment upon the policies chalked out or enforced as Justice Oliver Wendell Holmes put it "We do not inquire what the legislature meant; we ask only what the Statute means",
17. however, it is a case of enforcement of Constitutionally fundamental guaranteed right No. 1 & 15 read with Preamble and Principles of Policy enshrined in the Constitution, matter in this sense requires affirmative action in the form of remedial measures, in public interest.
30. Although validity of an action of a law shall not be called in question under Article 3-B(2) of the Constitution on the ground that it is not in accordance with the principles of policy, but the case at hand is pertaining to the enforcement of Constitutionally fundamental guaranteed rights, thus in a sense as these Principles energize the fundamental rights hence can rightly be read in aid of the said guaranteed rights, that too principles of Policy enhance the expectations of the citizens of the State (State Subjects) qua dispensation of administrative justice. In this vista of the matter, it can safely be said that insertion of principles of Policy read with concept of" better government" given in the preamble clause provides energy to the trite doctrine of" reasonable expectations" aua enforcement of Fundamental Rights guaranteed by the Constitution.
(Underlining is mine)
31. The petitioners have underscored their plight in a manner that the students of villages Saonaar and Hanthi, Union Council Gurez have been deprived of their fundamental rights i.e. right to education in particular, as no Middle School has been provided in the vicinity, hence, direction may be issued to the official respondents to upgrade the "Girls Primary School Saonaar" as "Girls Middle School Saonaar."
32. It has also been brought into the notice of the court by the learned counsel for petitioners that to get further education in another village/area, the students of the vicinity have to cross the dangerous wooden bridge hanging over the River Neelum, which is in a very fragile condition and lives of the children/students over there are in extreme jeopardy. In this regard, image of the said bridge has also been produced before the Court.
33. In, matrix of the above, the plight of the petitioners incorporated in the instant petition is accented and the official quarters are directed to take up the matter on priority basis qua upgradation of Primary School Saonaar, district Neelum, and finalize the same within a short span of time by providing administrative justice.
File shall be kept in archive.
1. Lord Denning in Packer v. Packer [1954] P. 15 at 22; quoted by Justice Jawad Hassan in Muhammad Umais v. Cantonment Board Rawalpindi (PLD 2022 Lahore 148).
2. DG, FIA v. Kamran lqbal (2016 SCMR 447) and SNGPL v. Wafaqi Mohtasib (2024 CLC 1787).
3. A.K. Brohi, Fundamental Law of Pakistan (1958), page 301.
4. Sabeen Asghar v. Province of the Punjab (PLD 2023 Lahore 416), per Justice Tariq Saleem Sheikh, Judge, Lahore High Court.
5. West Virginia State Board of Education et.al V. Barnette et.al (1943) 319 U.S. 624. Approvingly cited by Lord Bingham in A (FC) and others v. Secretary of State for the Home Department (2004) UKHL 56.
6. Maneka Gandhi v. Union of India (AIR 1973 SC 597).
7. The term 'penumbra comes from astronomy, referring to the partially shaded area surrounding the complete shadow of an object. In a legal context, it signifies a "gray area of implied rights. See Merriam -- Webster Dictionary.
8. Hafiz Junaid Mehmood v. Government of Punjab (PLO 2017 Lahore 1).
9. UDHR is a milestone document in the history of human rights. It was proclaimed by the United Nations General Assembly (UNGA) in Paris on December 10, 1948 via Genet al Assembly Resolution No. 217 A as a common standard of achievements for all people and nations. It evinced, for the first time, fundamental human rights to be universally protected. Pakistan became its signatory in the year of its inception i.e. 1948.
10. Pakistan ratified UNCRC on November 12, 1990.
11. AIR 1992 SC 1858.
12. PLD 1994 SC 693.
13. Muhammad Azhar Sadique vs. Federation of Pakistan (PLD 2012 SC 774) + Judicial review of Public Actions Second Edition (Justice Fazal Karim) page 412.
14. Wayman vs. Southard 23 U.S. 1 (1825), per Chief Justice Marshall.
15. Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) at page 566.
16. Federation of Pakistan v. Maulvi Tamizuddin Khan (PLD 1955 FC 240) and Shamsher Singh v.
State of Punjab (AIR 1974 SC 2192); per Mukherjee, CJ.
17. Justice Antonin Scalia, Judge, US Supreme Court in the book Reading Law; The interpretation of Legal Texts, by Justice Antonin Scalia and Byrana A Garner, Thomson/West Publications. USA (May 2012); quoted by Honorable Justice Jawed Hassan, Judge, Lahore High Court In State Bank of Pakistan v. Federation of Pakistan (PLD 2023 Lahore 392).