ABDUL MAJEED MALLICK, CJ.-Col. (Rtd) Muhammad Naqi Khan, Minister for Food and Health, respondent herein, was member of Tehrik-e-Amal Party. He contested the elections to the Legislative Assembly held on May 15, 1985, as a nominee of Tehrik-e-Amal Party. He was returned as such. He remained in the i.e and rank of his party when on June 9, 1988, he joined the Cabinet headed by All Jammu and Kashmir Muslim Conference. Mr. Noor-ul- Amin, a local Barrister, after some interval, addressed a petition to this Court wherein it was averred that the respondent, by joining the Cabinet, has incurred disqualification as contemplated under Section 3(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987. On incurring the disqualification, he ceased to be a member of the Assembly with immediate effect. Thus, on ceasing to be a member of the Assembly, he acted as Minister without lawful authority. The respondent admitted, in his written statement the aforesaid factual aspect of the proposition. It was accepted that the respondent contested the elections to the Legislative Assembly as a nominee of Tehrik-e- Amal Party. It was further admitted that the respondent was a member of the Tehrik-e-Amal Party and continued to be its member. The respondent also admitted to have taken oath as Minister and joined the Cabinet headed by the All Jammu and Kashmir Muslim Conference, the majority party in the Assembly. However, it was averred that the respondent continued to be member of the Assembly irrespective of his joining the Cabinet as the alleged disqualification was not attracted in his case. The respondent raised the preliminary objections seeking dismissal of the petition. It was averred that the petitioner not being an aggrieved person, was not eligible to invoke the jurisdiction of the Court. Moreover, the proposition of incurring disqualification was enquiration by the Chief Election Commissioner, on a reference by the Speaker. Thus, in presence of the alternative remedy, the petition was not tenable.
2. We propose to dispose of the preliminary objections first. Article 44(2)(b)(ii) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, postulates that the High Court may, on the application of any person, make an order requiring a person holding or purporting to hold a public office, in connection with the affairs of the Azad Jammu and Kashmir, to show under what authority of law he claims to hold that office. The Constitution provides that any person may move the High Court to challenge the unauthorised occupation of public office by any person. It does not require that the person seeking redress of grievance against usurpation of public office must be directly a beneficiary of that public office so much so to bring him within the scope of an aggrieved person as required in other provisions of this Article. The petition may be addressed under these provisions only in the case where a public office, franchise or liberty was usurped. Therefore, the objection that only an aggrieved party may invoke the jurisdiction of the Court, in such situation, is unsustainable.
These provisions of the Constitution in fact, deal with the power of High Court to issue writ of quo warranto. A writ of quo warranto is issued on the satisfaction that a public office is occupied without lawful authority or it is usurped by a person. Therefore, in order to invoke the jurisdiction, it is least relevant to say that only an aggrieved person may address the Court for issuing the writ of quo warranto. This view finds support from Masudul Hassan's case (PLD 1963 S.C 203) wherein Mr. Justice Cornelius, the learned Chief Justice of the time, examined the scope of quo warranto at page 204 as:- ---The now obsolete writ of quo warranto was in its nature an information lying against a person who -claimed or usurped an office, franchise or liberty" and was intended ~to enquire by what authority he supported his claim in order that the right to the office may be determined." It was necessary for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office."
In Muhammad All's case (PLD 1962 Lahore 230),Mr. Justice Anwarul Haq who spoke for the Court, analysed the meaning and scope of Quo-warranto as:- --Quo warranto is the remedy or proceeding whereby the Court inquires into the legality of the claim which a party assarts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, to have the same forfeited, and to recover it is, having once been rightfully possessed and enjoyed, it has become forfeited for misuser or nonuser. Generally speaking, the proceedings will not lie where there is another adequate existence of alternative remedy by way I exclude the jurisdiction of the High warranto in suitable cases, particularly in case of conitinuing disqualification or a disqualification incurred after the election. The decision where the High Court will interfere, or not, in quo warranto proceedings shall depend on the facts and circumstances of each case, and the discretion of the Court cannot be fettered by laying down any had and fast rule in this behalf:"
In this case, legality of election to the membership of Town Council and Union Committee was challenged for want of qualifications of the members or candidates of the Local Council. It was claimed that the respondents were disqualified to be elected as members of the Local Bodies, as such they were not entitled to retain the membership. The petitioner moved for issue of writ of quo warranto. The learned Judge examined the proposition under consideration by accepting the writ petition and directing the respondents to vacate their seats in Union Council and Town Council respectively.
3. In Muhammad Akbar's case (PLD 1957 Karachi 387), Mr. Justice Lari, the learned Judge, in answer to an objection similar to one in this case, observed that any person may invoke the Court's aid in respect of a wrongful act of a Public nature not affecting prejudicially any real or special interest of the petitioner. The relevant observation is reproduced as:- "-The rule that no person may invoke the Court's aid in respect of a wrong full act of a public nature not affecting prejudicially the real and special interest or a specific legal right of the relator is true only so far as the issue of writs of mandamus and certiorari are concerned. In respect of writ of quo-warranto there is no such restriction and member of the public may challenge a public act of the State provided that he does not do so mala i.e as an instrument of others. The leading case on the point is Rex V. Speyer and Rex V. Cassel ( 1916 K B (Vol. I) 595),. It was alleged that the petitioner is a mere stooge to substantiate this allegation. There is therefore, no force in the first objection."
In the present case, it is well accepted that the respondent is holding a public office. In case it is found that he has incurred the disqualification and could not continue as a member or ceased to be member of the Assembly, its obvious consequences would result in vacation of the office of the Minister. This is so as under the Constitution, only a member of the Legislative Assembly can be appointed as Minister.
4. The next preliminary objection is that the Chief Election Commissioner alone is competent to declare that a person has ceased to be a member of the Assembly. This provision finds place in Article 25(2) of the Constitution. It is reproduced as:- -25(2) If any question arises whether a member of the Assembly has, after his election become disqualified from being a member of the Assembly, the Speaker 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."
It is evident from the aforesaid provisions that when a question is raised that a member of the Assembly, after his election, has become disqualified from being a member of the Assembly, the Speaker is empowered to refer the question to the Chief Election Commissioner who has to give his finding as to whether the member has incurred the alleged disqualification or not. On finding that the member incurred disqualification, such member has to be cease to be a member of the Assembly and his seat shall become vacant. Prima facie, it is enjoined upon the Speaker to refer the matter to the Chief Election Commissioner. On reference by the Speaker, alone the Chief Election Commissioner has to decide whether the member has incurred disqualification or not. The Constitution does not contain procedure or a method of reference by the Speaker. It provides no alternative device for the redress of the grievance in case the Speaker fails to make reference to the Chief Election Commissioner. In the present case, the respondent assumed the office of Ministership in June 1988, the Speaker of the Assembly very well knew that the respondent was elected as member of the Assembly as nominee of Tehrik-e-Amal Party, an opposition party in the Assembly. The Leader of that party was the leader of the Opposition. Despite having knowledge of that position of the party of the respondent and also on assumption of office of Ministership by the respondent, the Speaker took no steps like referring the matter to the Chief Election Commissioner.
We are not in possession of any relevant material for such an omission. For there is no specific allegation against the Speaker on that point. Be that as it may, the fact remains that failure of the Speaker to refer the matter to the Chief Election Commissioner, does not disqualify the petitioner to invoke the jurisdiction of this Court for requiring the respondent to explain his position as such.
Ordinarily, it is the duty of the Court to construe the provisions of the Constitution or subordinate legislation to resolve the controversy. In the like manner, it is the superior judiciary alone which is conferred with jurisdiction to ascertain the vires of law. The Chief Election Commissioner not being a Court, is not empowered to decide the vires of statute. Thus, the superior judiciary basted with inherent and special jurisdiction is quite competent to examine the vires of law. In such situation, the superior judiciary is patently authorised to lay its hands to set the legal controversies at rest. In Fazlul Quader Chowdhry's case (PLD 1963 S.C. 486), the order of the President removing disqualification of the member of the Assembly to become Minister was assailed by invoking writ jurisdiction of the Court. An objection was raised that the question of incurring disqualification was to be ascertainable by the Chief Election Commissioner alone as provided under Article 104(2) of the Constitution of Islamic Republic of Pakistan of 1962. The objection was repelled. It was observed that the Chief Election Commissioner was not a Court and it would obviously be inapt for as issue of constitutional importance to be referred to him for decision. Mr. Justice Fazle Akbar recorded his opinion:- --It was next contended that the dispute really relates to the disqualification of three members of the national Assembly and hence the remedy provided in Article 104(2) of the Constitution should have been availed of. Disqualification of the said members may be the ultimate result of the decision but the main question for our consideration really is: Whether the impugned order under which they continue to be such members violated the fundamentals of the constitution. Under the Constitution the Chief Election Commissioner has no power to challenge the validity of an order made by the President. Hence so long as the Order stands, no question of disqualification of a member would arise. This fully explains why the Speaker of the National Assembly did not refer the question of their disqualification to the Chief Election Commissioner in accordance with the provisions of clause (2) of Article 104.
In the view I have taken it is not, therefore, necessary to discuss whether I can accept as sound the contention of the learned Attorney- General as regards the exclusive jurisdiction of Chief Election Commissioner to decide whether a member has become disqualified or not."
5. In the present case, the Speaker has failed to refer to matter to the Chief Election Commissioner.
Moreover, no definite scheme of law is available to meet the situation where the Speaker omits to refer the matter to the Chief Election Commissioner. Therefore, in such a situation, it is only the High Court which is competent to lay its hands on the proposition, to ascertain whether a member of the Assembly, in fact, has incurred a disqualification, as such he is deprived of the authority to continue to hold the public office. The objection is, therefore, unsustainable.
6. Before coming direct to the proposition under consideration, next, it appears imperative to review the importance of political parties in a modern democratic State. The Azad Jammu and Kashmir Interim Constitution does not contain any direct provision relating to formations, functions and structure of political parties in the polity of the State. However, reference to formation of political parties finds its place in fundamental rights. Fundamental Right No.7 deals with the freedom of association. It postulates that every State-Subject shall have the right to form association or union, subject to reasonable striction imposed by law in the interest of morality of public order. The meaning, scope and importance of political parties was construed in Tehrik-e- Amal Party's case (PLD 1985 AJK 95) as under:- "-The expression -political party" has been defined under Section 2(d) of the Ordinance as under:- --Political party5 includes a group or combination of the persons which are operating for the purpose of propagating any political opinion or indulging in any other political activity."
The use of the word -includes" suggests that the definition described by the legislature is not exhaustive and here, for the purpose of the Ordinance, it is confined to:
(i) Propagating any political opinion; or
(ii) indulging in any other political activities.
Before examining the scope of the expression -propagating any political opinion" or -indulging in any other political activity", it will be useful to see as to what political parties are, how they are organised and with what objective. In 'Words & phrases, Vol. 32 by West Publishing Company, the expression -political party" is defined as:- - A political party is a voluntary association of voters who are desirous of promoting a common political and, or carrying out a certain line of public policy. Schafer V. Whipple 55, pp. 180, 181 25 Colo 400."
A -political party" is an association of voters believing in certain principles of Government, formed to urge the adoption and execution of such principles in Governmental affairs through officers of like beliefs, and as rivals of popular favour they strive at general elections for the control of the agencies of the Government as a means of providing a course for the Government in accordance with their political principles and the administration of those agencies by their own adherents."
Encyclopeadie Brintannica describes the expression -Political Parties" as:- - Political parties are group organized for the purpose of achieving and exercising power within a political system. They originated in their modern form in Europe and the United States in the 19th century, along with the electoral and parliamentary system whose development is reflected in their own evolution. The terms 'party has since come to be applied to all organized groups seeking political powers, whether by democratic elections or by resolution, p. 677.
Mr. Justice A.R. Cornelius, CJ. In Maulana Maudoodi's case (PLD 1964 SC 673), observed at page 692: -The ordinary conception of a political party includes a right within the framework of the Constitution to exert itself through its following and organisation and being all available channels of mass communication, to propagate its view in relation to whole complex of the administrative machine including the legislatures, in respect of matters which appeared to it to require attention for the amelioration of conditions generally throughout the nation, for improvements particularly in administrative procedures and policies, as well as in the legislative field, even to the extent of proposing and pressing for amendment of the Constitution itself."
Bruke in -Thoughts on the Causes of the Present Discontents", described:- -Political party is a body of men united for promoting the national interest on some particular principles in which they are all agreed."
From the above, it reflects that political parties are primarily engaged in promoting common political end and to achieve that, they strive at general elections for the control of the Government as a means of providing a course to achieve their political principles. In popular term political parties generally seek political powers by democratic methods to enforce their own political philosophies among the electorates. In brief, the common function among the political parties throughout the world is to exert to secure political power in order to form a Government or to function as opposition.
Historically, therefore, political parties are an old affair. They are inevitable psychologically.
According to James Madisonar, the most common source of parties has been the -various unequal distributions of property" The -haves" and the -have-nots" tend to form distinct political groups. Immediate cause for modern political parties is the interest in properties, for instance, a landed interest, a manufacturing interest, a mercantile interest with many lesser interests tend to divide people into different parties actuated by their own feelings and sentiments. But in the general sense, parties confront each other by virtue of their differences in political philosophises. In nutshell, political parties supply a motive power in governmental organisation in all democratic states."
In Benazir Bhutto's case (PLD 1988 S.C. 416) Mr. Justice Muhammad Haleem, the learned Chief Justice, as he then was, reviewed the meaning and importance of -political parties" in the following manner:- -A political party has its significance in the context of the political system provided by the Constitution. Our constitution is of the pattern of parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority, Bagehot called it -a hyphen that joins, a buckle that fastens, the executive and legislative together". It formulates the general policy of the Government and is collectively responsible to the Parliament for that. Apart form this general function of coordination and leadership, it exercises actual executive and legislative functions. (Basu's Commentary on the constitution of India, Third Edn., Volume i, page 459).
Our Constitution envisages democracy as ethos and a way of life in which equality of status, of opportunity, equality before law and equal protection of law obtains. It was its foundation in Representation; it is not a system of self-government, but a system of control and the limitations of government. A democratic polity is usually identified by the manner of selection of its leaders and by the fact that the power of the government functionaries is checked and restrained. In a democracy, the role of the people is to produce a government and, therefore, the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a completive struggle for the people's vote.
Fundamentally democracy rests upon the ideas of freedom.
Parliamentary Government is a government of the party and a party government is a vital principle of a representative government. The political party is a connecting link between the executive and legislature, between the Cabinet and the Parliament, it is also a connecting link between the Cabinet and the people and between the Parliament and the people. For this reason the political parties are necessary and important features in a Parliamentary democracy. They are important because the group victorious at a general election becomes the government. In a nutshell a Parliamentary democracy depends for its success on the organisation of political parties and its disciplined support of Parliamentary majority is sine quo non of Cabinet Government composed of the Prime Minister and the Ministers from the majority party. They thus provide leadership to public offices through the elections. They are now necessary part of a democratic government. Rival parties make elections meaningful by giving voters a choice among candidates who represent different interests and points of view. The party or parties that are out of power serve as a -loyal opposition" as understood in Parliamentary democracy. That is, they criticise policies and actions of the party in power. In this way, the party in power is called on to justify his actions and is made responsible to the people."
7. Keeping in view the structure, functions and importance of a political party as enunciated above, we have to keep in mind that a political party which enters the field of elections, declares its programme and manifesto for its future actions, keeping in view the welfare and promotion of national objectives in line with its basic principles. The nominees of a political party when approach electorates to gain their support in elections, obviously give a call to the electorates to support them for achievement of their future programme listed in such manifesto. The electorates, in consideration of such election programme and minifesto, vote for the candidate. In other words, a candidate or a nominee of a political party in elections in the shape of party manifesto makes a virtuous commitment with the electorates that in case of his success in the elections, he would honour such commitment by its fulfilment during the term of his membership. It is not an individual or personal commitment but a collective and party commitment to the electorates. Thus, a candidate who is nominee of a political party is bound down by the collective and mutual commitment of the members of the party given to the electorates during the elections. By an act of separation, desertion or dissociation from the party during the term of membership, obviously, the member negates the whole commitment. Therefore, in order to sustain a fair, honest and healthy political party system in a State, it is enjoined to control the activities of the members of the Assembly returned as nominees of political parties. With this objective, restrictions or limitations framed in the shape of Section 3(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987, are imposed by legislature on members of the Assembly. The penalty is, of course, very heavy as on incurring disqualification, the member has to lose his seat for the rest of the term. Be that as it may, the fact remains that once a member of the Assembly incurs disqualification, he has to lose his seat forthwith.
8. Article 24(2) of the Constitution prescribes disqualifications of a person from his being elected as member of the Assembly. The disqualifications listed herein are not attracted in the present case.
Article 25(1) carries various disqualifications on incurring of which a member of the Assembly loses his seat. This article postulates that the seat in the Assembly shall become vacant under either of the circumstances listed below. The Article is reproduced:- -25(1) The seat of a member of the Assembly shall become vacant if:-
(a) he resigned his seat by notice in writing under his had addressed to the Speaker, in his absence, to the Secretary of the Assembly; or
(b) he is absent from the Assembly without the leave of the Assembly for thirty consecutive sitting days of the Assembly; or
(c) he fails to make the oath referred to in Section 23 within a period of ninety days after the date of his election unless the Speaker for good cause shown extends the period; or
(d) he is elected as a member of the Council; or
(e) he ceases to be qualified for being a member under AND provision of this act or any other law".
Clause (e) provides that the seat of the member of the Assembly shall become vacant if he ceases to be qualified for being a member under any provision of the Act or any other law. The disqualifications listed under Section 3 of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987 emanate from the provisions of clause (e) of Article 25(1) of the Constitution. Sub-section (2) of Section 3 adds further disqualifications for being elected and for being a member of the Assembly. Sub-Section (3) which is relevant to the proposition under consideration, is reproduced :- -(3) If a person having been elected to the Azad Jammu and Kashmir Legislative Assembly as a candidate or nominee of a political party, withdraws himself from that party, he shall from the dale of such withdrawal, be disqualified from being a member of the Assembly for the unexpired period of his term unless he has been re-elected at a bye-election held after his disqualification."
Under this provision of law, a disqualification is attached to the membership of the Assembly to his future actions. It conceives of a scheme of law to maintain harmony, cohesion and unity among the elected members of a political party, within Assembly. For a successful democracy, it is always desired that the member of the Assembly of each political party, must run the business of Assembly in line and direction of policy of the party. It is also a demand of political ethic that the Assembly members must maintain discipline by demonstrating unity among themselves, to accomplish the desired objectives of their party.
9. The disqualification is introduced as a positive check and safeguard against defection, departure and leaving of party, on the floor of the Assembly. It appears that the legislature, in view of the past experience in sub-continent, deemed it advisable to introduce the disqualification, so that no anarchy or chaotic conditions by changing loyalty and shifting on the floor of the Assembly, took ' place. It is relevant to state here that during late fifties, a political party emerged over-night in the Assembly of West Pakistan. It is well known that the Republican Party came on the horizon of the Assembly, within a very short span of time as various members of the Assembly defected their party, in order to form a new political party. In Azad Kashmir, there was a bitter experience in 1975 when on the floor of the Assembly, majority members changed their loyalty by shifting their interest and defecting to organise a new political party on the floor of the Assembly. The Speaker who was elected by the majority party, also shared the defection. This was a common phenomena in third world countries, keeping in view the past experience, it seems that it was deemed expedient to introduce additional disqualifications, to control future attitude and action of the Assembly members.
10. In order to declare disqualification of a member, it has to be satisfied that the member withdraw himself from his party, by his actions, behaviour, treatment, design, expression, sign, omission or visible demonstration. The term -withdraw" used in sub-section (3) is, therefore, warranted to be construed. It calls for its interpretation in ordinary dictionary meaning. In Black's Law Dictionary, V- Edition by West, the word -withdraw" is defined as :- -To take away what has been enjoyed; to take from. To remove, as deposits from bank, or oneself from competition, candidacy, etc. According to Shorter Oxford English Dictionary, the word -withdraw" means:- II.
1. To remove oneself from a place or position.
2. To remove oneself from a condition, sphere, society, etc. III.
1. To go away, depart, or retire from a place or position, from some one's presence, to another room or a private place, etc. b. Of combatants, troops, etc. : To retire from the field of battle or any contest, or from an advanced position.
2. To draw away form a person; to remove oneself or retire from society or community, etc.; to retire from participation in or pursuit of something."
According to West's Legal Thesaurus/Dictionary, the word ~ withdraw" means:- -To retreat (withdraw from the conference). To Cancel ( he withdraws the last Statement)."
Webster Comprehensive Dictionary defames the word ~ withdraw" as:- -To draw or take away; remove. To take back, as an assertion or a promise; recall. To keep or abstract from use. To draw back; retire."
In Reader's Digest Great Encyclopaedic Dictionary, the word ~ withdraw" is defined as:- ~ Pull aside or back; take away, remove; retract. Retire from presence or place, go aside or apart."
According to the Chambers Twentieth Century Dictionary, the word ~ withdraw" means:- -To draw back or away, to take back or away, to take from deposit or investment, as money; to remove (with from): to deflect, turn side: to recall retract, unsay.-vi. To retire to go away to take back what one has aside, or to re call a motion one has proposed."
The obvious meaning of the word ~ withdraw" is to remove oneself from a place or position previously occupied, to a new position. The language connotes that when it is ascribed to a member that he has withdrawn from a political party, in support of such allegation the only proof required thereby is to satisfy that the member by any overt act, action, omission, sign, declaration, expression and demonstration, dissociated himself from his political party. The law does not lay down a definite course of action to construe the action of withdrawal of a member of a political party. Therefore, in absence of definite course of action, the word -withdraw" is to be construed in its ordinary meaning as analysed above.
11. The substance of allegation ascribed to the respondent is that he ceased to a member of the assembly on the day he became Minister of the Cabinet of the Ruling Party. According to the petitioner, by joining the Cabinet, the respondent practically withdrew himself from his party, as such incurred disqualification under Section 3(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987. Therefore, we have to construe the action of the respondent to find out whether he is hit by the mischief of the aforesaid disqualification or not.
It is already noticed that Tehrik-e-Amal Party is an Opposition party whereas respondent has joined the Cabined headed by All Jammu and kashmir Muslim Conference. The Constitution of Azad jammu and Kashmir State, in fact, provides the structure of the Government as parliamentary form of government. In the parliamentary form of government, it goes without saying that there is a collective and joint responsibility of the Cabinet. An action or omission of either member of the Cabinet is deemed as collective action or omission. Therefore, by joining the Cabinet, the respondent chose the course to accept collective responsibility of the Cabinet. In this view of the matter, the respondent freely made a choice of joining the Government by deserting his own political party. The Tehrik-e-Amal Party being an Opposition party, the decisions, policies and actions of the ruling party are not necessarily to be followed by it. Ordinarily, its policies may be rather otherwise. In this view of the matter, the respondent has, obviously, chosen a different direction to his political and administrative actions in the administration of affairs of Azad Jammu and Kashmir.
12. During the pendency of the petition, it was brought to our notice that the respondent made a declaration, in a public gathering, of his joining the All Jammu and Kashmir Muslim Conference Party. His declaration also appeared in press reports. By his emphatical declaration, the respondent positively proved that he dissociated himself from Tehrik-e-Amal party. No further proof in this regard is required to uphold the allegation of incurring disqualification ascribed to the respondent.
13. It was suggest in the written statement that under Article 14 of the Constitution, the Prime Minister was empowered to appoint any member of the Assembly as Minister. In presence of the aforesaid provision of law, it was suggested, the respondent by joining the Cabinet, incurred no disqualification. The explanation is unsustainable. Article 14(1), in fact, lays down qualifications for appointment of Minister. It provides that the Prime Minister shall appoint Ministers from amongst the members of the Assembly. The authority of the Prime Minister to appoint Ministers was restricted and confined to the members of the Assembly and not outside that. The Prime Minister being Party Leader, was, of course, authorised to appoint his Ministers but this by itself does not eliminate the mischief of Section 3(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987. The restriction though does not operate against the authority of the Prime Minister but at the same time, the power of the prime Minister under Article 14 of the Constitution does not save a member of the Assembly of the Opposition political party from incurring a disqualification by joining the Cabinet headed by his adverse political party. No other point was canvassed before us.
14. Next, we come to the relief. When writ of quo warranto is issued, the Court is competent to give relief:- i. By issuing injunction to a person holding office, to refrain from acting as such public office-holder: and ii. By declaring the office to be vacant.
In this case, the respondent incurred disqualification on the day of his assumption of office of Ministership, i.e. June 9,1988. By virtue of provision of Section 3(3) of the Azad Jammu and Kashmir Legislative Assembly (Elections) (Amendment) Act, 1987, the respondent by his act of withdrawal from his political party, ceased to be a member of Assembly forthwith, for the rest of period of his term. As he ceased to be a member of the Assembly, he was not qualified to continue as Minister of the Government. Thus, all actions, orders, functions, performed by the respondent as Minister were without force of law. We, therefore, hold that the respondent ceased to be member of the Assembly with effect from June 9, 1988, as such he enjoyed no authority to act as Minister of the Government with effect from that day. Thus, the seat of the Assembly, previously earned by the respondent, thereby immediately fell vacant. The petition is, therefore, accepted accordingly. No order as to costs.
15. Before parting with the case, we consider it expedient to bring on record that it is expected of the Bar to render valuable legal assistance to resolve important points of law. In present case, we record it with regret that no adequate legal assistance was rendered. It is questionable that the vires of the disqualification enforced in the present case, may have been assailable for its being violative of Fundamental Rights, viz, (i) right of equality before law and equal protection of law, as this disqualification does not apply to an Assembly member who contested elections as an independent candidate, (ii) right to freedom of expression and (iii) right to dissociate from a political party when such party departed from its cherished political programme pronounced at the time of general elections in the shape of its manifesto. As none of these objections was raised in the pleadings of the parties nor was attended to at the time of arguments; we therefore, propose to attend to this aspect of the proposition, in some other case if and when brought before us.