' The petitioner being a regular member of the legal fraternity of Azad Jammu and Kashmir, has challenged, through this writ petition, the seventh amendment of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby Section 22 of the Azad Jammu and Kashmir Constitution, 1974 has been amended. He has also challenged the election of non-petitioner No,1 as the Prime Minister of Azad Jammu and Kashmir.
2. The brief facts giving rise to the present petition are that the Azad Jammu and Kashmir Interim Constitution Act, 1974 originally provides for an aggregate membership of the Azad Jammu and Kashmir Legislative Assembly to be forty-two, two of whom were to be females. Forty members were to be elected directly on the basis of adult franchise while the two female members were to be elected by the directly elected members.
3. The Interim Constitution Seventh Amendment Act of 1986 (Act II of 1986) purportedly amended Section 22 of the Interim Constitution Act of 1974 and increased the aggregate membership of the Legislative Assembly from forty-two to forty-eight. By this amendment, the famale seats were increased from two to five and three additional reserved seats were inducted, for the first time, in the Constitution:
(i) one, who shall be from amongst the Uleme-e-Din or Mushaikh and well-versed with the teachings of Islam, to be elected by the directly elected members;
(ii) one, who shall be from amongst the Jammu and Kashmir State Subjects residing abroad, to be elected by the directly elected members; and
(iii) one, who shall be from amongst the technocrats and other professionals, also to be elected by the directly elected members.
4. The non-petitioner No,1, who is the President of the All Jammu and Kashmir Muslim Conference and who was the President of Azad Jammu' and Kashmir till July 19, 1991, resigned from the office of the President of Azad Jammu and Kashmir. He was nominated for the Prime Ministership of Azad Jammu and Kashmir, by the aforesaid Party. He submitted his condidature forms for both the reserved seats for (i) Ulema-e-Din or Mushaikh as well as (ii) a technocrat but subsequently he withdrew his condidature for the latter seat. The non-petitioner No,1 was elected as the Prime Minister of Azad Jammu and Kashmir on July 29, 1991 by the directly elected members of the Assembly. He took the oath of office on the same day. The nomination and election of non- petitioner No,1 as Prime Minister of Azad Jammu and Kashmir and the Seventh Amendment of 1986 (Act II of 1986) has been challenged by the petitioner on the following grounds:--
(i) that the impugned election is repugnant to and inconsistent with the facts and antithetic to the law, rendering it factually insupportable and legally untenable;
(ii) that the impugned election is evidently and blatantly unconstitutional;
(iii) that the aforementioned Constitution Amendment Act of 1986, which is the basis of the impugned election, is itself ultra vires the Interim Constitution Act of 1974, rendering any consequential edifice based on it as devoid of any legal validity whatsoever;
(iv) that the said Amendment Act of 1986 has remarkably and radically modified, indeed, mutilated the fundamental and quintessential complexion of the Interim Constitution Act of 1974, which is legally and constitutionally impermissible;
(v) that the purported increase in the aggregate membership of the Legislative Assembly is itself illegal;
(vi) that the modus operandi and unprecedented and unconventional character of the impugned election of the respondent No,1 is flagrantly violative of, strictly incompatible to and totally irreconcilable with the rudimentary norms and principles of Parliamentary Democrarcy as enshrined and sanctified in the Interim Constitution Act of 1974;
(vii) that the respondent No,1 is alternatively not even legally qualified or eligible to be elected on the seat reserved for a member of the Muslim clergy;
(viii) that the inaugural session of the Legislative Assembly purportedly held on 29-7-1991, wherein the respondent inter alia took his oath as a member thereof and the ensuing and consequential proceedings are illegal and unconstitutional; and that the Constitutional oath of Prime Ministership as administered to the respondent No,1 is also unconstitutional.
5. The learned counsel for the petitioner moved an application for early hearing of this writ petition and alleged that this is an urgent matter because important Constitutional points are involved in this writ petition, so it may be heard as early as possible. Upon this application of the petitioner, preliminary arguments were heard on August 7, 1991.
6. The learned counsel for the petitioner contended that the amendment in Section 22 of the Interim Constitution Act of 1974 is unconstitutional and liable to be quashed for the following reasons:--
(a) that the amendment has changed the fundamental structure of the Constitution;
(b) that the amendment is violative of Section 22. Section 22 (2) of the Constitution envisaged forty members to be elected directly on the basis of adult franchise and two female members to be elected by the directly elected members of the Assembly and now when three additional seats have been inducted and these three members are to be elected by the directly elected members of the Assembly, so it is against the basic spirit of Section 22 (a) which says that the members of the Assembly shall be elected directly on the basis of adult franchise;
(c) prior to this, there were only two categories, i.e, (i) forty members to be elected directly on the basis of adult franchise and the other (ii) two women to be elected by the directly elected members of the assembly, and now a third category has been introduced which is unrecognised by the Parliamentary form of Government;
(d) nowhere in the world, there is such like system in a Parliamentary form of Government and the induction of these three seats is against the basic spirit of the Parliamentary form of Government; and
(e) that the indirect election is against the spirit of democracy and is not prevailing in any country or is not enshrined by the Constitution of any country.
7. He further maintained that non-petitioner No,1 is not qualified to be an `Aalim-e-Din' or `Mushaik'.
He maintained that according to the definition of `Aalim-e-Din' as laid down in the amendment of Section 22, it is necessary for an `Aalim-e-Din' that he should have obtained a higher class of degree, just like a post-graduate in Fiqah or Tafseer, because the basic spirit of the qualification is that the person should be qualified from some University and the non-petitioner No,1 is not qualified to be an `Aalim-e-Din'. Hence he does not come within the ambit of Section 2, Explanation
(b) of Act VII of 1987. He further maintained that it is mandatory for an `Aalim-e-Din' that he must be a Muslim scholar and he must possess a high qualification. The word 'high qualification' refers to and suggests academic qualification and an `Aalim-e-Din' must have been engaged for ten years in preaching Islam. He contended that so far as non-petitioner No,1 is concerned, he neither preached Islam nor he obtained any degree. Thus, he is not qualified to be elected on the seat reserved for an `Aalim-e-Din'.
8. He further maintained that the inaugural session of the Assembly, in which the non-petitioner No,1 has been elected as the Prime Minister, was unconstitutional. While elaborating this point, he referred to Section 27 of the Interim Constitution Act, 1974 and argued that the Assembly shall meet at such time and at such place as the President may appoint and the President may prorogue the session of the Assembly except when the Assembly has been summoned by the Speaker. While elaborating this point, he maintained that the President of the time, Mr. Ishaque Zaffar, never summoned the Assembly and when the Assembly had not been summoned by the President, the session of the Assembly was unconstitutional. He further maintained that the oath administered to non-petitioner No,1 is also unconstitutional for the reason that it was not administered by a competent person. While emphasising on this point, he contended that the competent person was Sahibzada Ishaque Zaffar because once he had assumed the office of President being Speaker of the Assembly, no other person could hold the office of President till a new President was elected.
Once Sahibzada Ishaque Zaffar, being Speaker of the Assembly, had assumed the office of President, then the newly elected Speaker was not competent to be President and the oath was administered to non-petitioner No,1 by the newly elected Speaker of the Assembly which is unconstitutional.
9. The learned counsel for the petitioner was confronted that whether the Seventh Amendment is contravention of Section 4 of the Interim Constitution Act and whether it is derogatory to or in conflict with any of the fundamental rights, the learned counsel for the petitioner frankly conceded on the point that, this Seventh Amendment was not in contravention of Section 4 nor was it inconsistent and derogatory to or in conflict with the fundamental rights guaranteed in the Constitution, but he maintained that this amendment has changed the fundamental construction of the Constitution. In this respect, he referred to AIR 1975 SC 2299 and AIR 1976 SC 1643.
10. I have heard the learned counsel for the petitioner and perused the writ petition and the annexures appended with the writ petition. The primary point to be resolved is as to whether the present amendment has changed the fundamental structure of the Constitution or not? For this matter, first of all, I would like to refer towards the fundamental structure of the Constitution. In the Interim Constitution of Azad Jammu and Kashmir, there are two Legislative Bodies, namely, (i) Azad Jammu and Kashmir Legislative Assembly and (ii) Azad Jammu and Kashmir Council. One has to see that how the members of these two Houses were to be elected prior to this amendment and whether this amendment has changed something or introduced some new system of election due to which the fundamental structure of the Constitution has been changed? Section 21 deals with the Azad Jammu and Kashmir Council, which reads as under:--
21. Azad Jammu and Kashmir Council.--(1) There shall be an Azad Jammu and Kashmir Council consisting of:
(a) The Prime Minister of Pakistan;
(b) The President;
(c) Five members to be nominated by the Prime Minister of Pakistan from time to time from amongst Federal Ministers and Members of Parliament;
(d) The Prime Minister of Azad Jammu and Kashmir or a person nominated by him; and
(e) Six members to be elected by the Assembly from amongst State Subjects in accordance with the system of proportional representation by means of the single transferable vote.
(2) The Prime Minister of Pakistan shall be the Chairman of the Council.
(3) The President shall be the Vice-Chairman of the Council.
(3-A) The Federal Minister of State for Kashmir Affairs and Northern Affairs shall be an ex officio member of the Council.
(4) The qualifications and disqualifications for being elected, as, and for being, a member of the Council shall, in the case of a member referred to in clause (e) of subsection (1), be the same as those for being elected as, and for being a member of the Assembly.
(4-A) The seat of a member of the Council elected by the Assembly, hereinafter referred to as an elected member, shall become vacant if--
(a) he resigns his seat by notice in writing under his hand addressed to the Chairman or, in his absence, to the Secretary of the Council;
(b) if he is absent, without the leave of the Chairman, from thirty consecutive sittings of the Council;
(c) he fails to make the oath referred to in subsection (6) within a period of ninety days after the date of his election, unless the Chairman, for good cause shown, extends the period; or
(d) he ceases to be qualified for being a member under any provision of this Act or any other law.
(4-B) If any question arises whether a member has, after his election, become disqualified from being a member of the Council, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member and his seat shall become vacant.
(4-C) An election to fill a vacancy in the office of an elected member shall be held not later than thirty days from the occurrence of the vacancy or, if the election cannot be held within that period because the Assembly is dissolved, within thirty days of the general election to the Assembly.
(4-D) The manner of election of elected members and filling of a casual vacancy in the office of an elected member shall be such as may be prescribed.
(5) An elected member shall hold office for a term of five years from the day he enters upon his office: ' Provided that an elected member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
(6) An elected member shall, before entering upon office, make before the Chairman oath in the form set out in the First Schedule.
(7) The executive authority of the Council shall extend to all matters with respect of which the Council has the power to make laws and shall be exercised in the name of the Council, by the Chairman who may act either directly or through the Secretariat of the Council of which a Federal Minister nominated by the Chairman from amongst the members of the Council and not more than three Advisors appointed by the Chairman shall be incharge: ' Provided that the Council may direct that, in respect of such matters as it may specify, its authority shall be exerciseable by the Vice-Chairman of the Council, subject to such conditions, if any, as the Council may specify.
(8) An Advisor may be appointed from amongst the elected members or the members of the Assembly.
(9) An Advisor shall, before entering upon office, make before the Chairman oath in the form set out in the First Schedule.
(10)An Advisor who is a member of the Assembly and the Federal Minister of the State for Kashmir Affairs and Northern Affairs shall have the right to speak in, and otherwise take part in the proceedings of the Council, but shall not by virtue of this subsection be entitled to vote.
(11)The Council may make rules for regulating its procedure and the conduct of its business, and shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings of the Council shall not be invalid on the ground that a person who was not entitled to do so sat, voted or otherwise took part in the proceedings.
(12)Orders and other instruments made and executed in the name of the Council shall be authenticated in such manner as may be specified in rules to be made by the council and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Council.
(13)The Chairman may regulate the allocation and transaction or- the business of the Council and may, for the convenient transaction of that business, delegate any of its functions to officers and authorities subordinate to it.
(14)The words 'The Prime Minister of Pakistan' wherever occurring in this section shall be deemed to include the person for the time being is exercising the powers and performing the functions of the Chief Executive of Pakistan." ' and Section 22 deals with the Legislative Assembly, which originally read as under:-- "22. Legislative Assembly.-- (1) The Legislature of Azad Jammu and Kashmir shall consist of a Legislative Assembly consisting of forty-two members of whom--
(a) forty shall be elected directly on the basis of adult franchise, and
(b) Two, who shall be women, shall be elected by the directly elected members.
(2) The manner of election of the members of the Assembly and the manner of filling casual vacancies shall be such as may be prescribed.
(3) Every Assembly, unless sooner dissolved, shall continue for five years from the date appointed for their first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of the Assembly."
11. Prior to this amendment, as stated above, the Legislative Assembly consisted of forty-two members. Forty members were to be elected directly on the basis of adult franchise and two women were to be elected by the directly elected members. In the Azad Jammu and Kashmir Council, six members were to be elected by the Assembly from amongst the State Subjects in accordance with the system of proportional representation by means of single transferable vote.
12. This argument of the learned counsel for the petitioner that by the present amendment, three more seats have been inducted in the Assembly and these three members are to be elected by the directly elected members of the Assembly and this has changed the fundamental structure of the Constitution, carries no substance. So far as the system of election by the directly elected members of the Assembly is concerned, that has not been newly introduced in the Constitution but it was already provided in the Constitution prior to the present amendment. As stated above, two women were to be elected by the directly elected members of the Assembly, so it cannot be said that now by inducting these three seats, a new system has been introduced in the Constitution and the fundamental structure of the Constitution has been changed. Six members of the A Council, as stated above, were also to be elected by the Assembly, prior to this amendment. So, in this way, it cannot be said that a new system has been introduced in the Constitution or a new method of election of the aforesaid three members has been introduced in the Constitution. The fact is that this system was already existing in the Constitution. Prior to this, only two members were to be elected by the Legislature but now six members are to be elected by the members of the Assembly, so it is just an addition of the seats which were to be filled in by way of indirect election. Therefore, the contention of the learned counsel for the petitioner that by this amendment, the fundamental structure of the Constitution has been changed, carries no substance, because by this amendment, no new system has been introduced in the Constitution but just an addition of the seats has been made. The case-law referred to by the learned counsel for the petitioner (AIR 1975 SC 2299 and AIR 1976 SC 1643) has no bearing on the facts of the present case.
13. The next contention of the learned counsel for the petitioner is that the present amendment is violative of Section 22 of the Interim Constitution. Section 22 of the Constitution originally provides that the Legislative Assembly of Azad Jammu and Kashmir shall consist of forty-two members of whom forty were to be directly elected on the basis of adult franchise and two were to be elected by the directly elected members and now instead of two, eight members are to be elected by the directly elected members. So, in this way, this amendment is not violative of Section 22 of the Interim Constitution. So far as the contention of the learned counsel for the petitioner that the amendment is violative of Section 22 (a), is concerned, no amendment has been made in Section 22 (a) but the amendment has been made in Section 22 (b) and after (b), clauses (c), (d) and (e) have been added. These are not, in any way, violative of Section 22 (a).
14. So far as this contention of the learned counsel for the petitioner is concerned, that prior to this amendment there were only forty members to be elected directly on the basis of adult franchise and two women were to be elected by the directly elected members of the Assembly and now a third category has been introduced which is unrecognised in the parliamentary form of Government, it carries no substance, as the amendment is not violative of any constitutional provision.
15. This contention of the learned counsel for the petitioner that indirect election of the members is against the spirit of democracy, also carries no substance because indirect election has also been provided in the Constitutions of so many countries. Even in the American Constitution, prior to the 17th amendment, the members of the Senate were to be elected by the Legislature but later on, by an amendment in the Constitution, the system of indirect election has been changed into direct election. Even otherwise, there is also a reasoning for adopting this method. Even in America, the reasoning given by the framers of the Constitution was that this method would bring in the Senate persons of high practical experience who have served for a longer period in the State Legislature or as public officers. Direct election, it was feared, might enable an unqualified and unreasonable person to win at the polls but would not be possible for them to befool the Legislators. In our country, election of experts like technocrats and Ulema-e-Din etc., is more proper by way of indirect election than direct election because the Legislature, who would elect technocrats and Ulame-e-Din etc., has been elected by the people on the basis of adult franchise and the election of technocrats and Ulema-e-Din by the elected members is election by the people.
16. The contention of the learned counsel for the petitioner that nowhere in the world, there is any such like system in a parliamentary form of Government to elect members by indirect election, carries no substance, because the system of indirect election has even been provided in Article 51 of the Constitution of Pakistan of 1973, which reads as under:-- "51. National Assembly.--(a) The National Assembly shall consist of two hundred members to be elected by direct and free vote in accordance with law.
(2) ........
(3) ........
(4) Until the expiration of a period of ten years from the commencing day or the holding of the second general election to the National Assembly, whichever occurs later, ten seats in addition to the number of seats referred to in clause (1) shall be reserved for women and allocated to the Provinces in accordance with the Constitution and law.
(5) For the purpose of election to the seats allocated to a Province under clause (4), the members of National Assembly from that Province shall constitute the electoral college.Which clearly provides that women were to be elected by the directly elected members of the Assembly.
17. So far as the contention of the learned counsel for the petitioner that the introduction of these seats in the Constitution by the amendment, is against the spirit of the parliamentary form of Government because these seats have been reserved for particular persons, it is also without any substance. All over the world, seats for experts are reserved in the Legislative bodies to provide them a chance to be elected as members of the Assembly on the basis of their knowledge and specialisation. For this very matter, I would like to refer to the Constitution of India. Section 79 of the Indian Constitution deals with the constitution of Parliament.. In India, the Parliament consists of the President and two Houses to be known respectively as the Council of States and the House of the People. The composition of the Council of States has been provided in Article 80 of the Constitution.
According to clause (1), twelve members of the Council are to be nominated by the President in accordance with the provisions of clause (3). This clause reads as under:- "(3) The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:-- ' Literature, science, art and social service."
' Thus, it is clear that in the Indian Constitution even, seats have been reserved for persons having special knowledge and on those seats, persons are to be nominated by the President, whereas in our Constitution, such persons are to be elected by the directly elected members of the Assembly.
18. The next contention of the learned counsel for the petitioner is that the non-petitioner No, 1 is not an `Aalim-e-Din' or 'Shaikh'. The definition of `Aalim-e-Din' or 'Shaikh' has been provided in the amendment, which reads as:-- " `Aalim' or 'Shaikh' means a Muslim scholar with high qualification in religious education or specialized knowledge in `Fiqah', `Tafseer' and `Hadith' to his credit and engaged for at least ten years in dissemination or preaching of these subjects either as `Aalim-e-Din' or 'Shaikh'?
'The contention of the learned counsel for the petitioner is that high qualification means that the person must have obtained highest academic qualifications and he must have obtained a degree from some University. Nowhere in the definition of "Aalim" or "Shaikh", it has been provided that the person should be post-graduate or graduate. The words which have been used are IC that "Aalim" or "Shaikh" means a Muslim scholar with high qualification in religious education or specialized knowledge in "Fiqah", "Tafseer" and "Hadith" to his credit and engaged for at least ten years in dissemination or preaching of these subjects. Here, the word "High qualification" does not mean that the person should have obtained some highest degree from any University. So far as the word "qualification" is concerned, "qualification" generally includes attributes, natural and legal quality, which render a person admissible to or acceptable for a place or office. Qualification is enabling quality, thus it is an enabling quality in a person. The word "qualification' conveys the fitness or capacity of a person for a particular post. Now, in the present Constitution, the qualification has not been stipulated with the condition that the person should be a post-graduate or should possess some other degree, but the simple word "qualification" has been used, so this contention of the learned counsel for the petitioner that he must have obtained some higher class degree, carries no substance.
' There is also not any proof nor it has been stated that how non-petitioner No,1 is not qualified or how he is not capable to be an Aalim-e-Din, nor his knowledge about Fiqah and Tafseer has been challenged. Even otherwise, so far as it is concerned that whether the non-petitioner No,1 is not qualified in religious education or he has not disseminated or preached the subjects, no supporting document in this respect has been appended with the writ petition by the learned counsel for the petitioner. Merely by saying of the petitioner that the non-petitioner is not qualified, does not render him unqualified to be Aalim-eDin unless it is supported by some cogent evidence. Thus, this contention of the learned counsel for the petitioner is also baseless and without any reasoning.
19. The next contention of the learned counsel for the petitioner is that the inaugural session of the Assembly, in which the non-petitioner No,1 has been elected as Prime Minister, was unconstitutional. The learned counsel for the petitioner, while elaborating this point, referred to Section 27 of the Interim Constitution and argued that it was the President of the time who could summon the Assembly as provided in Section 27 and as the President has not summoned the Assembly, its session was unconstitutional. This contention of the learned counsel for the petitioner carries no substance, because Section 13 of the Interim Constitution provides that the Assembly shall meet on the thirtieth day following the day on which a general election to the Assembly is held, unless .Sooner summoned by the President. Section 13 clearly contemplates that after the general election, on the thirtieth day, the session of the Assembly will automatically be held but the President may summon it earlier to the thirtieth day. In the present case, the session of the Assembly was held on the thirtieth day following the general election. There was no need for summoning the Assembly on the thirtieth day following the general election as, according to the Constitutional provision, the Assembly was automatically to meet on that day. When the learned counsel for the petitioner was confronted with the aforesaid position, he did not press the point.
20. So far as the next contention of the learned counsel for the petitioner is concerned that the oath was not administered to the non-petitioner No,1 by Sahibzada Ishaque Zaffar and once Sahibzada Ishaque Zaffar being Speaker of the Assembly, had assumed the office of President, he was to remain President till the new President entered upon his office, it carries no substance because Section 8 of the Interim Constitution provides that at any time when the President is unable to perform the functions of his office due to absence, illness or any other cause, the Speakar of the Assembly shall act as President and shall perform the functions of the President. This section clearly provides that it is only the Speaker who shall act as President and shall perform the functions of President in absence of the President. No doubt that when the President resigned, at that time Sahibzada Ishaque Zaffar was Acting President but he was Acting President because of his office of Speaker and when the new Speaker was elected, he ceased to be Speaker. Section 29, subsection (8) of the Interim Constitution is very much clear on the point, which envisages that when the Assembly is dissolved, the Speaker shall continue in his office till the person elected to fill the office by the next Assembly enters upon his office. Thus, he was entitled to remain Speaker till a new one entered upon the office. As the new Speaker was elected and he took oath of his office and started conducting proceedings of the Assembly, thus Sahibzada Ishaque Zaffar, after election of the new Speaker, ceased to be Speaker of the Assembly. Thereafter, he could not be acting President because, as stated above, only the Speaker can be Acting President and as and when he ceased to be Speaker, then, of course, naturally he would be no more Acting President. Thus, the oath administered by the newly elected Speaker as President was quite in conformity with law.
' In view of the above listed position, finding no force in the writ petition, it is hereby dismissed in limine.