' SYED MANZOOR HUSSAIN GILANI, J.---The petitioner, Syed Nazir Gilani, a state subject and famous human rights activists, Advocate by profession and Secretary General of Jammu and Kashmir Council for Human Rights (for brevity it will be referred as JKCHR) with its headquarter at London, has filed this petition under section 44 of Azad Jammu and Kashmir Interim Constitution Act. 1:*4 for a direction to the respondents Lim appointment of plebiscite adviser to meet me requirement of section 11 of the Constitution. Before proceeding further, relevant provision of the Constitution of Azad Jammu and Kashmir of which the implementation is sought, may be reproduced here. It is section 11 which is as follows: "11. Plebiscite Adviser.---The president may appoint a plebiscite adviser to advice the Government in relation to the holding of a plebiscite in the State of Jammu and Kashmir in terms of the UNCIP Resolutions."
2. The case of the petitioner is that the objects for the JKCHR has been formed are: "(1) To liaise with U.N. Commission on human rights and the sub commission on prevention of discrimination and protection of minorities to seek to promote respect for fundamental human rights in the State of Jammu and Kashmir.
(2) To monitor the violation of human rights,
(3) To forge close working link with United Nations Military Observer Group in Kashmir and other N.G.Os. Working in the field,
(4) To provide humanitarian help and assistance to those who are victims of the abuse of human rights in Kashmir and may for this purpose set up a charitable trust,
(5) To seek to provide assistance to victims of torture and set up a voluntary funds to finance therapy and rehabilitation projects, to enable victims and their families once again, to lead productive normal life within their community,
(6) To preserve, protect and defend the basic rights including the right of self determination as envisaged under U.N. Resolution, of the people of Jammu and Kashmir including the rule of Law, by all legal and constitutional means,
(7) To bring to light all acts of the Azad Government of the State of Jammu and Kashmir and that of Indian Held State Jammu and Kashmir and the officers and the authorities working under them which take-away or violate the basic rights or omit to perform functions under the law, of the people of Jammu and Kashmir or any sector or individual member thereof and generally, to act for the maintenance and advancement of these rights,
(8) And such other matters allied objects as may be considered necessary to promote and secure the said objects,
(9) To set up branch offices in pursuit of those objects."
3. It is stated by the petitioner that respondents Nos.2 and 3 (President and Prime Minister of Azad Jammu and Kashmir), were interviewed by him and urged for appointment of plebiscite adviser to advise the Government with regard to the plebiscite in the State, but no action has been taken by them so far, while it is imperative for them to appoint a plebiscite adviser in view of section 11 of the Constitution for advising the Government in regard to holding plebiscite in the State of Jammu and Kashmir in terms of the U.N. Commission for India and Pakistan (UNCIP) Resolutions of 1948 and 1949.
4. The petitioner in the background of the following paras.11 to 13 of the petition, requests for the indulgence of the Court for a direction to the respondents to fulfil its responsibilities under section 11 of the Constitution.
"11 That the atrocities perpetrated by the Indian Security Forces in occupied Kashmir have certainly surpassed the brutalities of the apartheid regime in South Africa, or of the Nazis 50 years ago. The systematic and deliberate acts of murder, torture rape, the destruction of houses and business, pushing hundreds of young people into the concentration camps of the Indian oppressors are all part of vicious plan to break the will of the people demanding the right of self-determination. The Government of India has responded to this situation in two ways. On the one hand, it has isolated the State of Jammu and Kashmir from the rest of world by continuous denying access to international human rights monitoring groups such as the Amnesty International, Asia Watch, International Committee of Red Cross and the people belonging to the electronic and print media of the world. Secondly, systematic barbaric atrocities are being perpetuated against the people of Kashmir in the form of collective punishment, mass killing, mass confinement, inhuman and degraded treatment, heinous torture, prolonged siege, enforced starvation, burning of houses and shops, demolishing of structures, molesting of elders, gangraping and beating of inmates.
"12 - That the Indian occupied Kashmir present a ghastly picture of unrelenting savagery, brutal tortures of youth in interrogation centres, gang-rape of helpless women, indiscriminate murder of innocent citizens, arsoning house and hamlets, looting of private property and utter devastation of villages and towns. India has amused half a million armed forces in Kashmir to quell the people's uprising who have risen against tyranny and barbarism. The people of the State of Jammu and Kashmir even with their blood are continuously trying to implement the UNCIP Resolutions but to no avail. The Indian Government with its Brute forces continuously suppressing the wishes of the people in murdering thousands of them and, thus, committing genocide. This fact itself is suffice for the president to appoint a plebiscite adviser under section 11 of the Constitution Act.
"13. That due to the tremendous sacrifice offered by the people of the State of Jammu and Kashmir there are clear cut signals even from the western countries including the united states of America that time for solution of Kashmir problem is now no more far away than it was three years before.
This fact is also sufficient for respondent No,3 to advise respondent No,2 to appoint the plebiscite adviser but they are miserably failing in their national duty at this hour of trial and tribulation."
' Substantiating his case in view of above, it is stated in para.6.
"6. That it may kindly be appreciated that section 11 of the constitution act was enacted by the legislature of the Azad Government of the State of Jammu and Kashmir with a view to endeavour towards the mobilising of the world opinion leading to implementation of the UNCIP Resolutions which aimed at to conduct plebiscite, of course, with the consent of the Government of Pakistan and India in terms of aforesaid resolutions. The consistent reluctance of President of Azad Government of the State of Jammu and Kashmir and other respondents not to appoint the plebiscite adviser is violative of the Constitution provision and the Honourable High Court, being the custodian of the Constitution, is required to preserve, protect and defend the rights of the people of the State of Jammu and Kashmir including the rule of law by all legal and Constitutional means and .To safeguard the sanctity of these provisions."
5. The Government of Pakistan, through the Ministry of Kashmir Affairs was arrayed as respondent No,5 in the case vide order of the Court, dated 24-9-1996 who in spite of being served upon, has not filed any written statement. Other respondents have filed the written statement. All the respondents have in substance agreed and admitted the contentions of the petitioner regarding appointment of plebiscite adviser, however, it is the joint stand of all the respondents i,e, the Government of Azad Jammu and Kashmir and Azad Jammu and Kashmir Council that the proper time for appointment of plebiscite adviser shall be when the Government of India is prepared and extends cooperation for holding plebiscite in the State of Jammu and Kashmir. In the absence of cooperation from India the appointment of adviser at this stage shall incur huge expenditure which the Government of Azad Jammu and Kashmir cannot afford at this stage. The Azad Jammu and Kashmir Council in a preliminary objection raised in the written statement has stated as follows: "That in accordance with the Azad Government of the State of Jammu and Kashmir Interim Constitution Act, 1974, under section 31(3), the Government of Pakistan is responsible for the matters arising out of United Nations Commission on India and Pakistan resolutions. In accordance with statutory provisions the Government of Pakistan is discharging its responsibilities to pursue the international community and the United Nations to help resolving the Kashmir issue by making the Government of India to agree and allow the holding of plebiscite in the State of Jammu and Kashmir. The appointment of plebiscite adviser as provided under section 11 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, will be made the moment India is prepared and cooperative with the Government of Pakistan for holding plebiscite in the State of Jammu and Kashmir. The plebiscite adviser if appointed at this stage, Azad Government shall have to incur huge expenditure which the Azad Government cannot afford at this stage. The respondents have never expressed their intention for not appointing the plebiscite adviser and are anxiously waiting for the time to come when the plebiscite adviser would be appointed with the cooperation of Government of India. The petitioner cannot be termed as aggrieved persons at the hands of the respondents as such the present writ petition entails, dismissal on this short ground among others."
6. We have heard the petitioner Syed Nazir Gilani and the Advocates representing the respondents at length.
7. The petitioner contended that it is the responsibility of Pakistan and India to implement the UNCIP Resolutions of 1948 and 1949 and for achieving the object, the Azad Kashmir Government being a liberated part of the State, having its Constitutional setup, is under obligations under section 11 of the Constitution to appoint a plebiscite adviser to advise the Government to mobilise the world opinion for the purpose. He contended that in accordance with the UNCIP Resolutions the cease- fire is observed, United Nations observers are appointed on both sides of the cease-fire line and the case of Kashmir is still on U.N. Agenda, hence it cannot be said that the plebiscite adviser shall be appointed when India agrees to it. He contended that inaction of India in delaying the implementation of UNCIP Resolutions, necessitates the appointment of adviser for a whole time functioning on the matter for advising the Azad Kashmir Government for mobilising the world opinion to compel India to implement the resolutions. He contended that Azad Kashmir is the base camp of liberation activities being the liberated part of the State. He also contended that the words may' used in section 11 of the Constitution has to be read as shall' and is of mandatory nature, as the Azad Kashmir and its Government owe their existence to the liberation movement and UNCIP Resolutions.
8. The learned Advocates appearing on behalf of respondents contended that the appointment of plebiscite adviser is a Constitutional requirement, but it is premature to appoint the adviser as the plebiscite process has not commenced. According to them the proper stage for appointment of the adviser is when the process of plebiscite actually starts and India agrees to it. They contended that Azad Kashmir Government is short of funds, hence cannot afford to appoint the adviser, till the actual stage arises for it. In the written arguments filed on 2-1-1999, it is contended that question of appointment of adviser is a political question which can be directed by the executive only in its discretion and the Courts should not intervene in the plebiscite question. It is also stated in the written arguments that the implementation of UNCIP is the responsibility of Government of Pakistan. The Azad Kashmir Government and Council, who are not authorised to legislate on the subject, cannot issue any executive order of any sort in this behalf. It is also contended by the learned Advocate for the Azad Government that provisions of section 11 are in conflict with the provisions of sections 31(3) and 56 of the Constitution.
9. Before dilating upon the relevant arguments and points of law raised through the pleadings, at bar and in the written arguments, a brief background of the involvement of U.N. In Kashmir dispute.
Azad Kashmir movement, status of its Government. And Constitutional development in Azad Kashmir may be placed on record which are relevant for deciding the case put up before the Court.
10. The State of Jammu and Kashmir under the instrument of partition should have formed the part of Pakistan, as majority rather predominant part of its population, is Muslims. But India in utter disregard to the instrument of partition usurped most part of the State which is under its immoral, unconstitutional and illegal control. The territory now comprising Azad Jammu and Kashmir, and Gilgit and Baltistan have been liberated by its people. The people of the Jammu and Kashmir State rose in revolt against the autocratic Government of the Dogra Maharaja and liberated this part of the State. India illegally occupied the other parts of this State, against which the people of the occupied Kashmir rose in Jehad and the matter was taken to the United Nations by India. The Security Council of the United Nations unanimously adopted different resolutions from time to time and appointed a permanent commission for India and Pakistan on the Kashmir problem on 20th January, 1948. (Which will be referred as UNCIP hereinafter). The above referred resolution was followed by the resolution of 21st April, 1948 and 3rd June, 1948, where after, the UNCIP started functioning and passed the historical resolution on 13th August, 1948 followed by other resolution of 5th January, 1949. Both the resolutions are respectively reproduced here for being material for the purpose of discussion to follow. (The resolutions and clarifications of resolutions referred in this judgment are reproduced from the documents issued by Government of Pakistan through M. Ayub, Liaison Officer with U.N. Commission for India and Pakistan, from Karachi on 25-1-1949).
The United Nations Commission for India and Pakistan.
"Having given careful consideration to the points of view expressed by the representatives of India and Pakistan regarding the situation in the State of Jammu and Kashmir, and ' Being of the opinion that the prompt cessation of hostilities and the correction of conditions the continuance of which is likely to endanger international peace and Security are essential to implementation of its endeavours to assist the Governments of India and Pakistan in effecting a final settlement of the situation.
' Resolves to submit simultaneously to the Governments of India and Pakistan the following proposal: ' PART I Cease-Fire Order.
(A) The Governments of India and Pakistan agree that their respective High Commands will issue separately and simultaneously a cease-fire order to apply to all forces under their control in the State of Jammu and Kashmir as of the earliest practicable date or dates to be mutually agreed upon within four days after these proposals have been accepted by both Governments.
(B) The High commands of Indian and Pakistani forces agree to refrain from taking any measures that might augment the military potential of the forces under their control in the State of Jammu and Kashmir.
(For the purpose of these proposals 'forces under their control' shall be considered to include all forces, organised, and unorganised, fighting or participating in hostilities on their respective sides).
(C) The Commander-in-Chief of the forces of India and Pakistan shall prompt), regarding any necessary local changes in present dispositions which may facilitate the cease-fire.
(D) In its discretion and as the Commission may find practicable, the Commission will appoint military observers who under the authority of the Commission and with the cooperation of both Commands will supervise the observance of the cease-fire order.
(E) The Government of India and the Government of Pakistan agree appeal to their respective people to assist in creating and maintaining an atmosphere favourable to the promotion of further negotiations."
' PART II Truce Agreement ' Simultaneously with the acceptance of the proposal for the immediate cessation of hostilities as outlined in. Part I, both Governments accept the following principles as a basis for the formulation of a truce agreement, the details of which shall be worked out in discussion between their representatives and the commission.
(A) - (1) As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from that State. .
(2) The Government of Pakistan will use its best endeavour to secure the from the State of Jammu and Kashmir of tribesmen and Pakistan nationals not normally resident therein who have entered the State for the purpose of fighting.
(3) Pending a final solution, the territory evacuated by the Pakistan troops will be administered by the local authorities under the surveillance of the commission.
(B) (1) When the commission shall have notified the Government of India that the tribesmen and Pakistan nationals referred to in Part II, A-2 hereof have withdrawn, thereby terminating the situation which was represented by the Government of India to the Security Council as having occasioned the presence of Indian forces in the State of Jammu and Kashmir, and further, that the Pakistan forces are being withdrawn from the State of Jammu and Kashmir, the Government of India agrees to begin to withdraw the bulk of their forces from the State in stages to be agreed upon with the commission.
(2) Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of cease-fire the minimum strength of its forces which in agreement with the commission are considered necessary to assist local authorities in the observance of law and order. The commission will have observers stationed where it deems necessary.
(3) The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within their power to make it publicly known that peace, law and order will be safeguarded and that all human and political rights will be guaranteed.
(C) (1) Upon signature, the full text of the Truce Agreement or communique containing the principles thereof as agreed upon between the two Governments and commission, will be made public.
' PART III ' The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement both Governments agree to enter into consultations with the commission to determine fair and equitable conditions whereby such free expression will be assured.
"VII. Resolution adopted at the meeting of the United Nations Commission for India and Pakistan on 5th January, 1949.
The United Nations Commission for India and Pakistan.
' Having received from the Governments of India and Pakistan in communications, dated December 23 and December 25, 1948 respectively their acceptance of the following principles which are supplementary to the commission's resolution of August 13, 1948;
(1) The question of the accessior of the State of Jammu and Kashmir 13 India or Pakistan will be decided through the democratic method of a free and impartial plebiscite.
(2) A plebiscite will be held when it shall be found by the commission that the cease-fire and truce arrangements set 'forth in Parts I and II of the commission's resolution of 13th August, 1948, have been carried out and arrangements for the plebiscite have been completed.
(3) (a) The Secretary General of the United Nations will, in agreement with the commission, nominate a Plebiscite Administrator who shall be a personality of high international standing and commanding general confidence. He will be formally appointed to office by the Government of Jammu and Kashmir.
(b) The Plebiscite Administrator shall derive from the State of Jammu and Kashmir the powers he considers necessary for organising and conducting the plebiscite and for ensuring the freedom and impartiality of the plebiscite.
(c) The Plebiscite Administrator shall have authority to appoint such staff or assistants and observers as he may require.
(4) (a) After implementation of Parts Iand II of the commission's resolution of 13th August, 1948 and when the commission is satisfied that peaceful conditions have been restored in the State, the commission and the Plebiscite Adviser will determine in consultation with the Government of India, the disposal of Indian and State armed forces, such disposal to be with due regard to the security of the State and the freedom of the plebiscite.
(b) As regards the territory referred to in A-2 of Part II of the resolution of 13th August final disposal of the armed forces in that territory will be determined by the commission and the. Plebiscite Administrator in consultation with the local authorities.
(5) All civil and military authorities within the State and the principal political elements of the State will be required to cooperate with the Plebiscite Administrator in the preparation for and the holding of the Plebiscite.
(6) (a) All citizens of the State who have left it on account of the disturbances will be invited and be free to return and to exercise all their rights as such citizens. For the purpose of facilitating repatriation there shall be appointed two commissions, one composed of nominees of India and the other of nominees of Pakistan.
' The commissions shall operate under the direction of the Plebiscite Administrator. The Government of India and Pakistan and all authorities within the State of Jammu and Kashmir will collaborate with the Plebiscite Administrator in putting this provision to effect.
(b) All persons (other than citizens of the State) who on or since 15th August, 1947, have entered it for other than lawful purpose, shall be required to leave the State.
(7) All authorities within the State of Jammu and Kashmir will undertake to ensure, in collaboration with the Plebiscite Administrator, that: (a)There is no threat, coercion or intimidation, bribery or other undue influence on the voters in plebiscite; (b)No restrictions are placed on legitimate political activity throughout the State. All subjects of the State, regardless of creed, caste or party, shall be safe and free in expressing their views and in voting on the question of the accession of the State to India or Pakistan. There shall be freedom of the press, speech and assembly and freedom of travel in the State, including freedom of lawful entry and exist; ' All political prisoners are released; ' Minorities in all parts of the State are accorded adequate protection; and ' There is no victimisation.
' The Plebiscite Administrator may refer to the United Nations Commission for India and Pakistan problems on which he may require assistance, and the commission may in its discretion call upon the Plebiscite Administrator to carry out on its behalf any of the responsibilities with which it has been entrusted.
(9) At the conclusion of the plebiscite, the Plebiscite Administrator shall report the result thereof to the commission and to the Government of Jammu and Kashmir. The commission shall then certify to the Security Council whether the Plebiscite has or has not been free and impartial.
(10) Upon the signature of the truce agreement the details of the foregoing proposals will be elaborated in the consultation envisaged in Part III of the Commission's Resolution of 13th August, 1948. The Plebiscite Administrator will be fully associated in these consultations.
' Commends the Governments of India and Pakistan for their prompt action in ordering a cease- fire to take effect from the minute before midnight of First January, 1949, pursuant to the agreement arrived at as provided for the Commission's Resolution of 13 August, 1948; and ' Resolves to return in the immediate future to the sub-continent to discharge the responsibilities imposed upon it by the resolution of 13th August, 1948, and by the foregoing principles."
11. The UNCIP Resolutions contemplate three distinct stages towards the solution of the problem.
First relates to cease-fire, second to the negotiation of truce agreement, and third relates to the holding of plebiscite under UNCIP auspicious to determine whether the State of Jammu and Kashmir should acceded to India or to Pakistan.
12. The perusal of above referred resolutions reveal that first part of the 13th August, 1948 resolution is substantially acted upon by India and Pakistan by observing cease-fire order and appointment of military observers of the United Nations on both sides of the cease - fire line, who supervise the observance of the cease-fire order. Legitimate existence of Azad Kashmir is also accepted in Part-II of the Truce Agreement referred above. The representative of the U.N. Commission has given the clarifications to the Government of Pakistan regarding different terminology used in 13th August, 1948 resolution of the commission. The following clarifications are given regarding Part-II, A-3 of the resolutions: "The term ' evacuated territory' means the area which is under the control of the Pakistan High Command, including for this purpose the Pakistan Army, the Azad Kashmir Forces, and tribesmen."
' By ' local authorities' we mean the Azad Kashmir people, though we cannot grant recognition to the Azad Kashmir Government."
13. The Azad Kashmir Government with the above background accepted by the UNCIP and with the approval of Government of Pakistan, framed the rules for business of the Government in order to run the administration of the State.
14. The real executive and legislative powers vested in the supreme head of the State. Under the "Rules of Business of Azad Kashmir Government, 1950" the supreme head nominated the President and members of the Council of Ministers. The council' was collectively responsible to the supreme head. Under this document, the Government of Azad Jammu and Kashmir was a powerful Government, unrestricted of any limitation. The Rules of Business 1950, were superseded by rules promulgated in 1952. The position of Azad Jammu and Kashmir Government was ridiculous under this document. The powers under this Constitutional document practically vested in a "Joint Secretary Ministry of Kashmir Affairs", but were expressed in the name of President, who could hold office during the pleasure of general council of all Jammu and Kashmir Muslim Conference, duly recognised as such, by the Government of Pakistan in the Ministry of Kashmir Affairs. The President was aided by a council of ministers. The phrase "duly recognised in the Ministry of Kashmir Affairs" created mischief and unrest in the smooth running of the Government. The Rules were again superseded in 1958, and new rules were enforced, where under a "Chief Adviser" was substituted instead of "Joint Secretary". All functions of the Government were exercised in the name of the President, but real power vested in the "Chief Adviser" or any other officer nominated by the Ministry of Kashmir Affairs. The Ministry had general supervision over the Azad State in matters of policy and general administration. The Government of Azad Jammu and Kashmir could not create a post carrying pay exceeding Rs,150 or enter into an expenditure exceeding rupees one lakh per annum.
15. In 1960, the presidential selections system through the votes of basic democrats was introduced in Azad Jammu and Kashmir with another body known as Azad Jammu and Kashmir Council which was also elected by the basic democrats. This council consisted of 12 members elected by the people of Azad Jammu and Kashmir, whereas 12 were elected by the refugees of Azad Jammu and Kashmir State, settled in Pakistan. In 1964, this sytem was also replaced and Azad Jammu and Kashmir Government Adt, 1964 was enacted, whereby the provision for the State Council was amended to the extent that 8 State Councillors were to be elected by the Basic Democrats of Mad Jammu and Kashmir. In 1965, the provision was made for appointment of two members by President from amongst the refugees settled in Pakistan. The Chairman of the council was to be nominated by the Chief Adviser under the Act of 1.964 from amongst the members. The Chairman had to act as the President for Azad Jammu and Kashmir Ex-Officio. In 1968, the Azad Jammu and Kashmir Government Act, 1968 came into force and 8 councillors were elected while 4 members were to be nominated by the Chief Adviser from amongst the refugees settled in Pakistan. The chairman of the council was elected by the concillors, who was ex-officio President. In 1969 caretaker Government was inducted into office.
16. The Chief Adviser still occupied a pivotal position under all the Constitutional enactments from 1960 to 1970. All important executive and legislative functions of the State were performed on the advice of the Chief Adviser. The person nominated by the Ministry of Kashmir Affairs used to be the Chief Adviser.
17. One important feature of this decade is the election of President through ballot. Though the ballot was not direct, or vocal, still it was a good start and paved the way for democratic process.
The supremacy of the bureaucracy was minimised and relations between the State and the Federal Government of Pakistan were channelized. People of. The State felt a sense of responsibility and participation in the national affairs.
18. The major, significant and far-reaching change in the Constitutional frame work of Azad State came into being in 1970 through Azad Jammu and Kashmir Government, Act, 1970. A complete democratic set up was introduced through the Act, where under a legislative assembly and President of Azad Jammu and Kashmir State were elected on the basis of adult franchise by the people of Azad Jammu and Kashmir and the refugees of Jammu and Kashmir settled in Pakistan.
Assembly consisted of twenty members elected directly on the basis of adult franchise and one coopted lady member. Act, 1970 introduced a democratic form of Government through Presidential System. President was the Chief Executive of the Azad State of Jammu and Kashmir, while all legislative powers vested in the Assembly. Except defence, security, current coin and responsibilities of the Government of Pakistan under UNCIP Resolutions, the assembly could make laws on all the subjects and the executive authority of the Government extended to all the matters on which the assembly had the power to make laws. This Act gave a absolute internal autonomy to the Azad State. Fundamental rights were guaranteed to the State Subjects, along with the writ powers to the High Court, for their enforcement. The system under the. Act, 1970 worked for about four years, when a switch over was made to Parliamentary System in 1974.
19. Act 1970 was repealed and reenacted with certain modifications through Interim Constitution Act, 1974. Three important departures were made from. Act, 1970; first, parliamentary system of Government was introduced with the Prime Minister as the chief executive of the state; secondly, Azad Jammu and Kashmir Council is created which is given legislative powers over the subjects mentioned in schedule three of the Act, along with executive authority over those subjects and, thirdly the institution of joint sitting is created as a Constituent Assembly. The council is designated to perform the functions of federal set up with the same subjects at its disposal, as the Federal Government of Pakistan has vis-a-vis the provinces. One distinguishing feature which places the Azad State on a higher pedestal than a province, is that representatives of the state compose the council, with Prime-Minister of Pakistan as its Chairman and President of Azad Jammu and Kashmir as its Vice-Chairman, besides the Prime-Minister of Azad Jammu and Kashmir as a member thereof.
20. Section 8 of Azad Jammu and Kashmir Government Act, 1970 also contained the provision similar to section 11 of the present Constitution. Section 8 may be reproduced here: "8. Plebiscite Adviser.-The President may, after consultation with the adviser, appoint a plebiscite adviser to- advise Government in relation to the holding of a plebiscite in the State of Jammu and Kashmir in terms of the UNCIP Resolutions."
21. Both the regular Constitutions i,e, Act, 1970 and Act, 1974, under sections 19(3) and 31(3) respectively, excluded from the purview of the authority of the legislature the power to make any law concerning the responsibility of the Government of Pakistan under UNCIP Resolutions, consequently the executive authority of the Government stands also excluded. Even the legislature and executive authority of Azad Jammu and Kashmir Council, which is headed by the Prime Minister of Pakistan stands also excluded on it. The relevant provision of subsection (3) of section 31 of the Constitution are reproduced here: "31(3) Neither the council nor the assembly shall 'have the power to make any law concerning:
(a) The responsibilities of the Government of Pakistan under the UNCIP Resolutions; "
(b) the defence and security of Azad Jammu and Kashmir;
(c) the current coin or the issue of any bills, notes or other paper currency; or
(d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid."
22. The Government of Pakistan is entrusted with the power under section 56 of the Constitution to take such action which it may consider necessary or expedient for the effective discharge of responsibilities under section 31(3). Section 56 may be reproduced here: "56. Act not derogate from responsibilities of Pakistan.---Nothing in this act shall derogate from the responsibilities of the Government of Pakistan in relation to the matters specific in subsection (3) of section 31 or prevent the Government of Pakistan from taking such action as it may consider necessary or expedient for the effective discharge of those responsibilities."
23. Act, 1970 also contained the similar provisions under section 28 which may be reproduced here: "28. Act not to derogate from the responsibilities of Pakistan.---Nothing in this Act shall derogate from the responsibilities of the Government of Pakistan in relation to the State of Jammu and Kashmir under the UNCIP Resolutions or prevent the Government of Pakistan from taking such action as it may consider necessary or expedient for the effective discharge of those responsibilities."
24. We first advert to the arguments of Mr. Ghulam Mustafa Mughal that section 11 is in conflict with sections 31(3) and 56 of the Constitution. As inconsistency, prima facie does appear between the provision of section 11 vis-a-vis section 31(3) and section 56 of the Constitution, but the same stands diluted when the provisions of the Constitution are read in the light of UNCIP Resolution and clarifications given by the representatives of the commission in this behalf as stated above.
25. In the clarifications given by the UNCIP representative Mr. Korbel, in writing and orally, the Azad Kashmir is treated as "evacuated territory" and it is stated with respect to it that "those territories in the State of Jammu and Kashmir which are at present under the effective control of Pakistan high command---including for this purpose the Pakistan Army, the Azad Kashmir Forces and tribesmen---the Azad Kashmir people." It 'is further clarified that "the existence of the Azad Kashmir movement has not been ignored by the commission,---though it is stated that it cannot grant recognition to the Azad Kashmir Government---but---the population of their territories will have freedom of legitimate political activity---and---will have full political and administrative control and will be responsible for the maintenance of law and order and security"
26. In view of the above stated relationship of Azad Kashmir with the Pakistan high command, the first regular Constitution of Azad Jammu and Kashmir, 1970 and the Constitution now in force, contain the provisions of sections 8 and 11 respectively authorising the Azad Kashmir President/Government to appoint the plebiscite adviser. Both the Constitutions are outcome of the interaction of the Azad Kashmir and Pakistan high command and 'preamble of present act clearly speaks that the Government of Pakistan (Pakistan high command) has approved the repeal of Act, 1970 and its re-enactment in the shape of Act, 1974. The provisions of section 8 in the repealed and section 11 in the act in force are enacted to give larger, greater, extended and effective role to Azad Kashmir Government in the light of UNCIP Resolutions to act in furtherance of the resolutions for "legitimate political activity". (as incorporated in the commission's letter of September 3, 1948).
27. The Azad Kashmir being the liberated part of the State of Jammu and Kashmir, is the base camp of the liberation movement. For achieving the end, the provisions of the Constitution have not only authorised but also obliged its Government to act in furtherance of the UNCIP Resolutions i,e,, in the direction of the plebiscite and for that purpose, keep itself engaged by seeking the advice of expert in the field as to how to accelerate the process of implementation of UNCIP Resolutions.
Under the above referred clarification it is stated by Mr. Korbel in a meeting held on September 2, 1948, while explaining the word 'surveillance' that: "as regards the term 'surveillance' we have used it deliberately in the absence of a better word. It does not mean actual control or supervision. All that we are anxious for is to appoint neutral observers to see that the local authorities carry out the Truce Agreement. If the local authorities do anything against the spirit of the truce proposal, the observers will report the matter to the commission which will then endeavour to have it set right. No interference with the local administration is intended."
28. In view of above, the Azad Kashmir Government is also to carry out the truce agreement. It is in this background that the plebiscite adviser is visualised by the section. C Basic responsibility under the UNCIP Resolutions being of the Government of Pakistan at international forum, the local authority i,e,, the Azad Kashmir Government is to extend a helping hand for carrying into effect the truce agreement in Azad Kashmir and it can be better and effectively acted upon if the Government has a better adviser. By the word 'better' we mean a person who is equal to the calibre of plebiscite administrator, who is supposed to be "A personality of high international standing and commanding general confidence" as stated by the UNCIP Resolutions of January 5, 1949.
29. The provisions of section 11 are, thus, not derogatory to or in conflict with section 31(3) or section 56, but in aid thereof. Moreover, no provision of the Constitution can be deemed or assumed to be contrary to the others. The scheme of the act as a whole is to be seen and every provision has to be given effect on its own strength. The Government of Azad Kashmir is otherwise under obligation, in view of subsection 2(a) of section 19 of the Constitution, to exercise the executive authority in a way that the responsibilities of the Government of Pakistan are not prejudiced. The relevant part of the section is reproduced below:--- "19. Extent of executive authority of Government.---(1) Subject to this Act, the executive authority of the Government shall extend to the matters with respect to which the assembly has power to make laws.
(2) The executive authority of the Government shall be so exercised as:---
(a) not to impede or prejudice the responsibilities of the Government of Pakistan in relation to the matters specified in subsection (3) of section 31."
30. A notification of the Azad Kashmir Government issued from the Services Secretariat on 19-1-1991 shows that Chaudhry Sultan Ali had been appointed as Plebiscite Adviser by the Azad Kashmir Government. Thus, there is nothing new which may be said as in conflict with the other provisions of the Constitution.
31. When all the provisions of the Constitutions are read in juxtaposition to each other i,e, sections 11, 19(2), 31(3) and 56 and preamble, the practicable answer to the proposition of appointment of adviser is that the President of Azad Jammu and Kashmir can appoint the adviser, however, the Government shall not act upon such advice of the adviser which has the effect of impeding or prejudicing the responsibility of the Government of Pakistan.
32. In the Simla Agreement of 1972, the Government of India and Pakistan have undertaken to resolve the dispute of Jammu and Kashmir through the peaceful means which has marred their relations. Relevant portions of the agreement are reproduced as follows:
(i) that the principles and purposes of the charter of the United Nations shall govern the relations between the two countries;
(ii) that the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them.
(iii) that in Jammu and Kashmir, the line of control resulting from the ceasefire of December 17, 1971 shall be respected by both sides without prejudice to the recognised position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations.
Both sides further undertake to refrain from the threat or use of force in violation of this line.
(iv) that both the Governments agree that their respective heads will meet again at a mutually convenient time in the future and that, in the meanwhile, the representatives of the two sides will meet to discuss further the modalities and arrangements for the establishment of durable peace and normalization of relations, including the question of repatriation of prisoners of war and civilian internees, a final settlement of Jammu and Kashmir and the resumption of diplomatic relations.
33. The recent Lahore Declaration of February 21, 1999 is also in furtherance of the Simla Agreement, which is itself is based on the principles of the United Nations Charter and under which the position of each of the countries on Kashmir issue is accepted. Relevant part of the Lahore Declaration of February 21, 1999 is reproduced as follows: "The Prime Ministers of the Republic of India and the Islamic Republic of Pakistan.---Sharing a vision of peace and stability between their countries, and of progress and prosperity for their peoples, Convinced that durable peace and development of harmonious relations and friendly cooperation will serve the vital interests of the peoples of the two countries, enabling them to devote their energies for a better future. Recognising that the nuclear dimension of the security environment of the two countries adds to their responsibility for avoidance of conflict between the two countries; committed to the principles and purposes of the Charter of the United Nations, and the universally accepted principles of peaceful co-existence, reiterating the determination of both countries to implementing the Simla Agreement in letter and spirit; Committed to the objectives of universal nuclear disarmament and non-proliferation; Convinced of the importance of mutually agreed confidence building measures for improving the security environment; Recalling their agreement of 23rd September, 1998, that an environment of peace and security is in the supreme national interest of both the sides and that the resolution of all outstanding issues, including Jammu and Kashmir, is essential for this purpose; Have agreed that their respective Governments.- Shall intensify their efforts to resolve all issues, including the issue of Jammu and Kashmir."
34. Both the above referred bilateral agreements specifically refer to the settlement of Jammu and Kashmir issue and for the purpose of settlement, both the countries have to enter into the negotiations with each other. The settlement of Kashmir issue relates back to the UNCIP Resolutions under which the will of the people of Kashmir has to be kept in view. The will of the people of Jammu and Kashmir has to be stated by the representatives of the people living on both sides of the line of control. Azad Kashmir being the liberated part of the State, representing the State of Jammu and Kashmir, has the greater responsibilities, and to discharge those responsibilities, the whole time attention is required which is visualised by section 11 of the Constitution. Thus, viewing from any angle, these are the UNCIP Resolutions under which the final settlement of Jammu and Kashmir shall have to take place.
35. Simla Agreement of 1972 accepts the respective stand of India and Pakistan on Kashmir issue under U.N. Resolutions. Under the Simla Agreement India and Pakistan have agreed to adhere to the U.N. Charter and notwithstanding the claims relating to the line of control etc., the agreement does not prejudice the recognised position of Pakistan and India on the issue of Kashmir, which is a significant and special feature of the agreement.
36. The modalities of the settlement remain to be negotiated as visualised by Part-II of the Truce Agreement. The Government of Azad Jammu and Kashmir, representing the will of the people of the State, is in a better Constitutional position to render advice and assistance in this behalf because of having a recognised status within the limits of the UNCIP Resolutions, Constitutional legitimacy with the consent of Government of Pakistan and its interaction with All Parties Hurriyat Conference, the representative body of the freedom fighters of Indian Held Jammu and Kashmir.
37. The role of Azad Kashmir Government in the freedom movement in retrospect of its lego- political sphere is best described by the famous English historian on Kashmir, Alastair Lamb in his famous book "Kashmir A Disputed Legacy 1846-1990" edition 1991, at pages 188-189, says - as below: "The Muzaffarabad regime is not easy 'to classify. While dependent upon Pakistan for its military and economic survival (not least because of its importance for the watering of the West Punjab by rivers which ran through it and by vast projects like Mangla which were over the years to come to be situated on its soil), it was not entirely, a Pakistani puppet State. In some respects its was a kind of Kashmir Government in exile; as such it provided a forum for Kashmiri politicians who represented widely divergent views as to the kind of future for which they were struggling. At the same time, it was inevitable that Pakistan would watch closely, and intervene actively in, its political processes; and without Pakistani assistance, economic, political and military, it could not hope to survive.
' The nature of Azad Kashmiri political life, of course, was also a cause for great anxiety of the Indian side of the cease-fire line. So long as Azad Kashmir existed, there was a constant temptation, as had Mahajan observed, for Kashmiri nationalists in Srinagar to seek some formula for the reunification of the divided ' Kashmiri state through means other than Indian arms and diplomacy. Sheikh Abduliah, while at times expressing his abhorrence for Azad Kashmir in the strongest possible language, was yet on occasions prepared to enter into clandestine correspondence with some of its leaders, many of whom he had known since the heady days of June and July, 1931."
38. During the present intensified movement of freedom struggle in Kashmir, the determination of the Governments of India and Pakistan to settle all the outstanding disputes, including the Kashmir, which alone has bedeviled relations between the two countries, especially so after nuclear explosions by the two countries, it is the imperative duty of all those who matter anywhere to act towards achieving the goal of settlement of Kashmir embroglio and pool their efforts together for the purpose. Azad Kashmir, has after the armed struggle of Kashmiri freedom fighters from Indian yoke, become the focus of world attention, especially so, when it is a part of the whole, and that part which is free and a base camp, having its representative Government, as against the occupied part, which practically has become a concentration camp, where foreigners entry and visit of Kashmiri leadership abroad is almost a nightmare. Under these circumstances the appointment of a person as plebiscite adviser is not only necessary but imperative. A specific provision of the Constitution Authorities the President to appoint the plebiscite adviser. The President, who is to act on the advice of the Government, is, therefore, under obligation to press into service the provision of the Constitution as this is the high time in the national history to do all that can be done for mobilising the world opinion to bring around the India to implement the UNCIP Resolutions. Action under section 11 of the Constitution is, therefore, mandatory in the circumstances.
39. The Courts being a part of the State polity, cannot be oblivious of the above stated facts and ground realities regarding Kashmir. In these circumstances, the word 'may' finding place in section 11 of the Constitution has to be meant as 'shall'. If an action is or can be of any help in the national interest, which is not only not prohibited, but allowed by the Constitution, that should be taken and any lapse on the part of the Government, would amount to failure in performing its duty, more so when it relates to national duty. We have already missed many opportunities and lost many buses, for which we suffer. Let the history not be repeated now. It is well-said for the occasion that: {{URDU TEXT}}
40. There is a plethora of case-law for and against reading word 'may' as 'shall' and vice versa. As a general rule the word 'may' gives the impression of its being enabling directive or discretional power, while the word 'shall' and 'must' gives the impression of their being imperative, obligatory and mandatory. But the same are not tied up with hard and fast rule of being discretionary or imperative. There are cases where these words are used interchangeably. It is the circumstances and facts of each case which determine the interchangeability or convertibility of the words 'may' for 'shall' or must and vice versa. With the change in the circumstances the meanings and force of the law also changes. The word 'shall' under some circumstances may not be treated and read as of mandatory connotation while the same word from the same law may be treated as of mandatory nature, if the circumstances change and the requirement of time so warrants. The Courts have to keep in view the circumstances of each case while interpreting a word used in a legal instrument. The Courts have not to be oblivious of the ground realities.
41. Though there is no dearth of case-law on the point of interchangeability of the word 'may' for ' shall' and vice versa, but we would refer only one- of them reported as "Muhammad Shafi v. Chief Secretary and others" (PLD 1973 Azad J&K 27) which is comprehensive in nature Mr. Justice Muhammad Yusuf Saraf, after discussing a ring of authorities on the point has concluded as follows: "An analysis of the rulings cited above would show that the word ' may' has in the following circumstances, been treated as a binding obligation on the authority invested with the permissive power.
(1) When the power is given for the benefit of persons who are specifically pointed out and the condition upon which it is to be exercised has also been provided for.
(2) If it is to effectuate a legal right.
(3) If it authorises the doing of a thing for the sake of justice.
(4) If it authorises the doing of a thing for public good.
(5) In the light of the consequences that would, follow by construing it one way or the other."
42. The situation with which the Kashmiris are confronted at the movement, failure of India to fulfil its obligation under UNCIP Resolutions, its failure to implement the commitment made in the Simla agreement, its reign of terror in the occupied Kashmir; the recent atomic detonations by India and Pakistan which have intensified the tension between the two countries and the sub-continent having become the nuclear flash point on account of the 'Kashmir' Dispute', the pressure of the only super power of the world on both the countries to settle the Kashmir dispute the U.N. Secretary General's report on Kashmir, interest of the world renowned statesmen like Nelson Mandela, Kai Annan etc. For settlement of dispute and lastly the recent determination of the Indian and Pakistani Prime Ministers at Lahore to settle the Kashmir issue, oblige the Government of Azad Jammu and Kashmir to be prepared to watch the interest of the State and its people when the future politico- legal status of the disputed State is being shaped. This is the most appropriate and high time for appointment of an adviser as the process of negotiations at different official, non-official, diplomatic, political, people to people contacts at national and international level are on full swing.
A whole time jurist with international background and in depth knowledge of Jammu and Kashmir's history and geography, with diplomatic posture is required to function, independent of his intermingling with the politico-administrative affairs of Azad Jammu and Kashmir.
43. The arguments of the learned counsel for the respondents that it is a political question which may not be decided by the Court, is not tenable for the reasons that liberation of the state is not the political question only, it is a legal, Constitutional, moral and political obligation of the Government of Azad Kashmir, which owes its existence to UNCIP Resolutions. The provisions of Azad Kashmir Constitution are replete with the obligation of fulfilling these requirements of UNCIP Resolutions. The resolutions besides being a part of the Constitution rather, a base thereof are outcome of Charter of United Nations. Every citizen of the world village, be it the state or individual, is obliged to implement and act upon the provisions of the United Nations Charter and Resolutions passed by it or under its authority, unless the municipal law specifically prohibits it. The provisions of section 11 are not only in line with the spirit of the Constitution, but in furtherance of the United Nations Charter. The Courts being a part of the nation and State are not to act in isolation. They are also required to watch the interest of the State and enforce the interest if any organ of the State is failing in its duty to do so. In doing so the Courts are performing their Constitutional duty even if it apparently seems a political question.
44. The argument of the learned advocates for the respondents that financial position of the Government does not allow it to bear expenses of the plebiscite adviser is also devoid of any force.
A list is placed before the Court of advisers, special assistance etc., appointed by the Government, besides about one and half dozen ministers, of which we take judicial notice. It is not becoming of the respondents to avert the Constitution and national responsibility under section 11 of the Constitution by putting up the lame excuse of lack of funds in the presence of a chain of advisers special assistants and cabinet ministers for running the administration and political affairs of only about five thousand sq. Miles area and ignoring the rights and interest of people spread over eighty thousand sq. Miles, for whose sacrifices this system is running.
45. In view of above, it is declared that president/Government is bound to appoint a plebiscite adviser under section 11 of the Constitution, who, shall be a man of calibre of plebiscite administrator as visualised by the truce agreement i,e, "a personality of high international standing and commanding general confidence". It is accordingly directed.