KHAWAJA MUHAMMAD SAEED, J.--- The above-titled two appeals are directed against a consolidated judgment of the High Court passed on 31-5-2001 whereby 4 writ petitions filed by 4 different persons including Ch. Muhammad Yousaf appellant, herein, challenging the vires of clause (xxv) of subsection (2) of section 5 of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 (hereinafter shall be referred as the Ordinance) were rejected. In both the appeals common question of law arising out of identical facts were raised, therefore, these were heard together and dismissed through a short order of this Court, dated 7-6-2001. These are the reasons in support of the said short order.
2. Common facts claimed by the appellants briefly stated are that they being State Subjects of Azad Jammu and Kashmir State are enrolled as voters in their respective Constituencies. Appellant Ch. Muhammad Yousaf became Member of the Azad Jammu and Kashmir Legislative Assembly in general elections held in 1985 and 1991 and had acted as Senior Minister in the Government whereas the other appellant was a Member of the Legislative Assembly When the Ordinance in question was promulgated by the Azad Jammu and Kashmir Government. Both the appellants have raised a serious objection that the Ordinance was promulgated after the Chief Election Commissioner had announced the Election Schedule for the Election of the Azad Jammu and Kashmir Legislative Assembly to be held on 5th July, 2001. According to the appellants the impugned Ordinance was ultra vires the Constitution as it was against the teachings of Qur'an and sunnah and further that it amounts to amending the Constitution. According to appellant Ch. Muhammad Yousaf the impugned legislation was mala fide as according to him in 1996 the Prime Minister in chair had approached him to join the People's Party but he refused to change his political allegiance.
3. In written statement the respondents denied the averments of the writ petitions. In their written statement before the High Court and in concise statement before this Court the respondents have defended the impugned Ordinance and maintained that it was properly' promulgated by the President in accordance with the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as the Constitution Act) as he was authorized by sub-clause (f) of subsection (2) of section 24 of the same. According to them by promulgating this Ordinance no restriction has been imposed upon the freedom of association nor any "qualification" has been converted into disqualification. In the same way according to .The respondent the Ordinance does not offend against subsection (5) of section 31 of the Constitution Act. The respondents have also refuted the allegation of mala fide and have categorically stated that law can be promulgated at any time. According to respondents the impugned Ordinance was enforced much before the last date fixed by the Chief Election Commissioner for filing the nomination papers. They have- further pleaded that the impugned law shall apply to all State Subjects, thus allegation of arbitrary and discriminatory treatment attributed by the appellant to this Ordinance is without any justification.
4. In the background of these pleadings .The Full Bench of the High Court after hearing finally dismissed the writ petitions filed by the petitioners therein vide judgment, dated 30-5-2001. Out of petitioners who had invoked the Constitutional jurisdiction of the High Court only Ch. Muhammad Yousaf has approached this Court through petition for leave to appeal. Ch. Muhammad Yasin, a Member of the Ruling Party, also feeling aggrieved by this Ordinance and the judgment of the High Court filed petition for leave to appeal. As law points of great public importance were raised, therefore, petitions filed by both the appellants were converted into appeals and heard together.
5. Mr. Abdul Majeed Mallick, the learned counsel for the appellants, challenging the validity of the judgment of the High Court made following submissions in support of the appeals:-- (i)That the condition having a matric or equivalent `qualification' for contesting election to the Azad Jammu and Kashmir Legislative Assembly is in fact a `qualification' within the meaning of section 24(I) of the Constitution Act, which could be enacted only by making amendment in the Constitution. According to him due to this reason initially through an Ordinance No.XXVI of 2001 this condition was included in the list of qualifications. Subsequently the Government realized that this condition cannot be added in the list of the `qualifications' through an Ordinance, therefore, in exercise of the powers available under sub-clause (f) of subsection (2) of section 24 of the Constitution Act this `qualification' was added in the list of `disqualification (ii)That the impugned Ordinance has been promulgated with mala fide intentions. While elaborating his arguments he submitted that the Government in power apprehending the success of the present appellants in the general elections promulgated the Ordinance to deprive thern of contesting election in order to ensure success -of its liked candidates. He further argued that the Impugned Ordinance is violative of the Fundamental Rights Nos.7 and 15 guaranteed by the Constitution Act, which right could be taken away only through reasonable restrictions imposed by law in the interest of morality or public order. He further submitted that the impugned Ordinance has been enforced after the announcement of the Election Schedule by the Chief Election Commissioner without providing political parties reasonable time to make readjustment or to the aggrieved persons to improve their 'qualifications', therefore, the manner in which this new `qualification' has been imposed in the shape of `disqualification' impliedly proves mala fide on the part of the respondents. He relied on Jammu anal Kashmir Tehrik-e-Ammal Party v. The Azad State of Jammu and Kashmir PLD 1985 (AJ&K) 95 and Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain PLD 1995 Lah. 541.
(iii)According to learned counsel this amendment cannot be absorbed in the Scheme of Constitution as under section 22(1)(c) of the Constitution Act one member of the Legislative Assembly has to be an Aalam-'e-Din who under the Constitution Act must be well--versed with the teachings of Islam. No other `qualification' has been laid down under the Constitution Act for such a Member whereas under the impugned Ordinance he must be also matriculate or possessing equivalent `qualification' for being a Member of the Legislative Assembly. By this amendment in fact the Constitution Act has been amended through an Ordinance which was beyond the jurisdictional competence of the President. He further submitted that as the term `disqualification' has not been defined in the relevant rules, therefore, it shall be read in ordinary dictionary meanings. He this connection relied on following authorities:---
(1) Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan PLD 1959 SC (Pak.) 177, (2) The Working Muslim Mission and Literary Trust, Lahore and The Civil and Military Gazette Ltd., Lahore v. The Crown PLD 1956 FC 209, (3) S.M. Ayub w. Syed Yusaf Shah PLD 1967 SC 486, Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others PLD 1995 Lah. 541.
The authorities referred to by the learned counsel for the appellants shall be discussed at proper place in coming parts of this judgment.
6. While controverting the arguments of the learned counsel for the appellants, Khawaja Attaullah, Additional Advocate-General and Mr. M. Tabassum Aftab Alavi, the learned counsel for the respondents, argued that no order adverse to the interest of the appellants was passed in the light of the amending Election Ordinance, therefore, the writ petitions were premature which should have been rejected on this ground without discussing merits of the case. In the same way, according to them, the appellants are not so far aggrieved persons as such cannot maintain appeal before this Court. They further argued that the amending Election Ordinance was within the legislative competence of the President and does not contravene the Fundamental Rights Nos.7 and 15 contained in section 4(4) of the Constitution Act, as argued from the appellants side. They also contended that the right to contest election is not recognized as a Fundamental Right. It can be exercised by those who fulfil the requirements as laid down by the Constitution Act and law enacted under the authority of the Constitution. According to them malice cannot be attributed to the Legislature. They in support of their arguments relied on th~ following case-law:--
(1) Muhammad Tariq Khan v. The State and another PLD 1998 SC (AJ&K) 17; (2) Raja Muhammad Niaz Khan v. Azad Government PLD 1988 SC (AJ&K) 53. (3) Pir Sabir Shah v, Shad Muhammad Khan PLD 1995 SC 66, (4) Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457, (5) Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain, Governor of Punjab, Lahore and 2 others PLD 1995 Lah. 541, (6) Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527, (7) Pir Shujaat Hussain Qureshi v. Alhaj Raees Ahmad Qureshi PLD 1988 SC 118, (8) Muhammad Yousaf v. M. Irshad Sipra and others 1988 CLC 2475, (9) The State of Bihar v. Reghunandan Singh and another AIR 1960 Pat. 530, (10) Dr. Muhammad Akram v. Allotment Committee, Mirpur Development Authority PLD 1985 SC (AJ&K) 113.
7. We have heard the learned counsel for the parties and gone through the record of the case. First of all it appears appropriate to attend the preliminary objection of the respondents that writ petitions before the High Court were not justified as no order adverse to the interest of the petitioners thereto was passed by the concerned Returning Officers in the light of the impugned legislation and further that the right of appeal has been wrongly availed of by the appellants before this Court. In support of their objection it was submitted by the learned Additional Advocate---General that Election Schedule was published in the official Gazette on 22nd May, 2001.
According to this Gazette Notification the persons interested in contesting election for legislative body were required to file their nomination papers before the Returning Officers up to 1st June, 2001.
7th June, 2001 was fixed for the scrutiny of the nomination papers. On this date on the basis of the 'qualifications' and `disqualification' the paper of any candidate would have been rejected. The writ petitions were filed much earlier by Ch. Muhammad Yousaf and 3 others, therefore, these petitions were premature as such were liable to be dismissed on this very ground. In our view this objection has got no force in it.
8. Ch. Muhammad Yousaf and 3 others through their writ petitions challenged the vires of the impugned legislation. It was, therefore, not necessary for them to wait till the time their nomination papers were rejected by the Returning Officers. A threatened violation of a Fundamental Right also gives a right to avail Constitutional jurisdiction of the High Court, therefore, the writ petition was rightly filed by Ch. Muhammad Yousaf in the High Court and after its dismissal he as well as the other appellant feeling aggrieved from the impugned legislation and the judgment of the High Court, have rightly availed the appellate jurisdiction of this Court. The High Court has rightly rejected this objection.
9. Having disposed of the above-referred objection we advert to the points raised before us by the learned counsel for the appellants in the light of the law referred by him. The main point raised by Mr. Abdul Majeed Mallick, the learned counsel for the appellants was that in fact through impugned Ordinance the Government has provided an additional `qualification' for being a matriculate or having equivalent `qualification' for contesting the election to the Legislative Assembly of Azad Jammu and Kashmir. According to him 'qualifications' have been provided under section 24(1) of the Constitution Act. Nothing can be added to them through an Ordinance. According to him due to mala fide intention initially an Ordinance was promulgated whereby this additional condition was added in the list of `qualifications' but subsequently the Government took that Ordinance back and promulgated the impugned Ordinance whereby this condition has been included in the list of 'disqualifications'. He further argued that as the term `qualifications' or 'disqualifications' have not been defined in the Election Laws, therefore, these terms shall read in their ordinary dictionary meanings. He relied on cases titled Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan PLD 1959 SC (Pak.) 177, The Working Muslim Mission and Literary Trust, Lahore and the Civil and Military Gazette Ltd., Lahore v. The Crown PLD 1956 FC 209, S.M. Ayub v. Syed Yusaf Shah PLD 1967 SC 486 and Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain Qureshi, Governor of Punjab, Lahore and 2 others PLD 1995 Lah. 541, wherein it is laid down that if any word or term used in any statute has not been defined in the statute itself then such word or term shall be read in its ordinary dictionary meanings and further that if such word or term has different meanings the one which fits in with the context should be accepted. He relied on the definition of `qualification' given in Black's Law Dictionary, 5th Edition at pagel6 which is as follows:-- "The possession by an individual of the qualities, properties, or circumstances, natural or adventitious, which are inherently or legally necessary to render him eligible to fill an office or to perform a public duty or function. Thus, a qualified voter' is one who meets the residency, age, and registration requirements.
Also, a modification or limitation of terms or language; usually intended by way of restriction of expression which, by reason of their generality, would carry a larger meaning than was designed."
At page 424 of the same dictionary, the `disqualification' has been defined in following words:-- "To divest or deprive of qualifications; to incapacitate; to render ineligible or unfit, as, in speaking of the `disqualification' of a Judge by reason of his interest in the case, of a juror by reason of his holding a fixed reconceived opinion, or of a candidate for public office by reason of non-residence, lack of statutory age, previous commission of crime, etc." '
10. We have no quarrel with the proposition laid down in above--referred authorities as these contain the cardinal canon of interpretation that when the meaning of a word or term used in a statute is clear and unambiguous, the Court cannot go beyond them and has to take them in their ordinary dictionary meanings. We also agree with him that without amending the Constitution no `qualification' can be added in subsection (1) of section 24 of the Constitution Act. As the dispute relates to the `qualifications' and disqualifications' of a Member of Assembly, therefore, it appears appropriate to have the reference of section 24 of the Constitution Act which is as follows:-- "24. Qualification of members of the Assembly.--- (1) A person shall be qualified to be elected as, and to be, a member of the Assembly if-
(a) he is a State Subject;
(b) he is not less than twenty-five years of age; and (c)his name appears on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan.
(2)A person shall be disqualified from being so-elected if- (a)he is of unsound mind and stands so declared by competent Court; or (b)he is an undischarged insolvent unless a period of ten years has elapsed since his being adjudged as insolvent; or (c)he has been on conviction for any offence sentenced to transportation for any term or imprisonment for a term of not less than two years unless a period of five years has elapsed since his release; or (d)he holds any office of profit in the service of Azad Jammu and Kashmir or in the service of Pakistan other than an office which is not a whole time office remunerated either by salary or by fee other than an office specified in the Second Schedule; or (e)he has been dismissed for misconduct from the service of Azad Jammu and Kashmir or the service of Pakistan unless a period of five years has elapsed since his dismissal; or (f)he is otherwise disqualified from being, a member of the Assembly by this Act or by or under any other law
11. From the bare reading of the above provision of the Constitution Act it becomes clear that under sub-clause (f) of subsection (2) of section 24 the power to provide `disqualification' can be exercised by enacting law. Admittedly under the Scheme of the Constitution Act law can be enacted either by the Assembly or when it is not in session through the promulgation of an Ordinance by the President, if he is satisfied that circumstances exist which render it necessary to take immediate action in this behalf. In our view the `qualifications' provided under subsection (1) and 'disqualifications' provided in subsection (2) of section 24 of the Constitution Act and by enacting law under the authority C of sub-clause (f) of subsection (2) of section 24 are two shades of the same picture. These are so interchained to each other that both of them must be read together and not in isolation to each other. Therefore, a person who fulfils the requirement of `qualifications' laid down under subsection (1) of section 24 of the Constitution Act and also does not suffer from any of the "disqualification" laid down under the Constitution Act and law enacted in exercise of the powers under sub-clause (f) of subsection '(2) of section 24 can contest election for the legislative body of this part of the State.
12. The next objection raised by Mr. Abdul Majeed Mallick, the learned counsel for the appellants, against the impugned legislation was that the same was ultra vires of the Constitution for being violative of the Fundamental Right No.7 which postulates that every State Subject has a right to form an Association or a Union subject to any reasonable restrictions imposed by law in the interest of morality or public order and that no person or political party in Azad Jammu and Kashmir shall propagate against or take part in activities prejudicial or detrimental to the ideology of State's accession to Pakistan. According to him the right to form an association under this Fundamental Right includes in it to contest election to the Legislative Assembly of Azad Jammu and Kashmir and for that purpose it is the exclusive right of the political party whose activities are not prejudicial or detrimental to the ideology of the State's accession to Pakistan to select and put up its candidates to the Election of the Legislative Assembly. By the promulgation of the impugned Ordinance the Government has practically snatched and curtailed the right of State Subject in above narrated sense to form an association. While elaborating his point of view he further argued that the right guaranteed to the people of the State to form an association can be curtained through reasonable restrictions imposed by law in the interest of morality or public order.
According to him the impugned legislation has not been issued in the interest of morality or public order, therefore, the same is liable to be quashed. According to him the right to contest elections is an important ingredient of the Fundamental Right No.7.
13. He placed reliance upon Jammu and Kashmir Tehrik-e-Ammal Party v. The Azad State of Jammu and Kashmir PLD 1985 Azad J&K 95. The facts of this case were that- like some other political parties, Jammu and Kashmir Tehrik-Ammal Party and Azad Jammu and Kashmir Muslim Conference were political parties of this part of the State which were registered under the provisions of the Azad Jammu and Kashmir Political Parties Ordinance, 1985. In this law subsequently through an Ordinance, an amendment was made and new subsection 8(A) was added and the same provision was also added as clause (xii) in subsection (2) of section 5 of the Azad Jammu and Kashmir Legislative Assembly Election ordinance 1970. These provisions were as follows:-- "8(A). The registration of a political party shall be cancelled by the Commissioner, if the number of votes secured by it throughout Azad Jammu and Kashmir and Pakistan at a general election to the Assembly is less than twelve and half per cent. Of the aggregate of the valid votes cast at the said election and less than five per cent. Of the aggregate of valid votes cast in each district.."
Section 5(2)(xii). He is elected as nominee of a political party whose registration has been cancelled by the Commissioner as a result of operation of section 8(A) of Azad Jammu and Kashmir Political Parties (Amendment) Ordinance, 1985."
14. These provisions were challenged in the High Court by Jam and Kashmir Tehrik-e-Ammal Party through a writ petition mainly on the ground that the same were ultra vires of the Constitution for being violative of the Fundamental Right to form an association guaranteed to a State Subject by section 4(4) of the Constitution Act and that the Fundamental Right of freedom of an association can only be taken away or abridged by imposing reasonable restrictions under law in the interest of morality or public order but the impugned provisions are not reliable to and have no proximity with the public order or morality. Ultimately in terms of majority view, section 8(A) of the Azad Jammu and Kashmir Political Parties Amendment Ordinance, 1985 was declared invalid and void on the ground of being violative of the Fundamental Right of freedom of association guaranteed under the Constitution Act.
15. He also relied another case titled Mian Shahbaz Sharif v. Chaudhry Muhammad Altaf Hussain PLD 1995 Lah. 541. In this case it is laid down as follows:-- "42. The question as to whether `qualification' would include `disqualification' has been subject- matter of various cases, some of which have taken the view advocated by Mr. Muhammad Akram Sheikh. The preponderance of opinion, however, appears to be that want of `qualification' and 'disqualification' are not interchangeable expressions and a person not possessing requisite `qualifications' cannot be said to be disqualified. The distinction appears to be that a person is said to be not qualified when he lacks necessary attributes. He is, however, disqualified en he is divested of any of the qualifications."
This authority has got nothing common with the facts of the present case. In this authority the reliance has been placed on another case titled Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527, in order to support his contention that his clients being qualified to contest election for the Membership of the Legislative Assembly having their age above 25 years and being State Subjects and entered as voters in the electoral roll of their constituencies have been deprived of contesting elections on the ground that they were not matriculate. Such a `disqualification' endorsed through an Ordinance, according to the learned counsel for the appellants, amounts to the subversion of the Constitution Act because in fact it is a "qualification" which has been enforced in the style of "disqualification" through .The impugned legislation.
16. As against these submissions it was argued by Kh. Attaullah, the learned Additional Advocate- General, that the impugned legislation was within the legislative competence of the President of Azad Jammu and Kashmir and further that it does not contravene the Fundamental Right No.7.
According to them the right of freedom of association does not include the right to contest elections. Mr. M. Tabssum Aftab Alavi, the learned counsel for the respondents, argued that law is to be read as it is and not as it should be. He in support of his contention relied on an authority of this Court titled Azad Government v. Genuine Rights Commission 1999 MLD 268 wherein the proposition of law has been clearly laid down in the following words:-- "------------The Courts of law are bound to interpret a law as it is and not as it should be..." and further that:-- "If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words, themselves in such case best declaring the intention of the Legislature."
17. A vires of the impugned legislation is challenged in the light of the Fundamental Right No.7, therefore, it appears appropriate for the sake of reference to reproduce Fundamental Right No.7 of the Constitution Act:-- "7. Freedom of association.--- (1) Subject to this Act, every State Subject shall have the right to form Association or unions subject to any reasonable restrictions imposed by law in the interest of morality or public order.
(2)No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to the ideology of the State's accession to Pakistan."
18. From the perusal of Fundamental Right No.7 it would appear that every State Subject has been given right to form an association of his choice. Such association would continue unless its activities are curtailed D through reasonable restriction imposed by law in the interest of morality and public order. The argument that right to form an association automatically confers a right to contest elections for Legislative Assembly cannot be accepted. In case titled Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayum Khan PLD 1983 SC (AJ&K) 95, the learned Chief Justice of the time in his separate note opined in para. 65 at page 129 as under:-- "------------But on the other hand if the Ordinance provides disqualification which is a mere domestic wall to bar entry in the elective body it would not come within the mischief of fundamental rights."
19. Through the present Ordinance only the entry of such persons in the legislative body has been made possible who are either matriculate or have equivalent qualification. Such restriction in the light of the above-- referred observations would not come within the mischief of Fundamental Right No.7.
20. The learned counsel for the appellant is the author of the main judgment in Tehrik-e-Ammal case which he has relied in support of his contention that to contest election is a Fundamental Right and any restriction imposed through law to contest election shall amount to an infringement of Fundamental Right No.7. We fail to understand how this authority helps him. This authority he has himself opined in para. 27 at page 134 as under:-- Mr. Qayyum Malik righter pointed out` that to contest election is not a fundamental right and to impose a disqualification restricting the right to contest election is not an infringement of a fundamental right---------.." (Underlining is ours).
Again in the same authority the other member of the Bench, Sardar Muhammad Ashraf Khan, J. In paras. 21 and 22 at pages 151 and 152 laid down as under:-- "21. As would appear from the perusal of the provision relating to the freedom of association, every State Subject has been given right to form Association which right, of course, would also include the right to its continuance unless the same is taken away or abridged by the imposition of reasonable restrictions in the interest of morality and public order by the Legislature. This fundamental right to form an association, in my view, cannot be stretched to such an extent as to include in its ambit even the right of association formed in pursuant thereto for political purposes to contest election to the Assembly and for that purpose nominates and put up its candidates for election to the seats of the said Assembly. To impute such an intention and meaning to the language or context of the fundamental right of freedom of association would be going too far and can only be done by ignoring and not adhering to well-known and established canons of interpretation and construction of a statute that the meaning and intention of the Legislature should be ascertained from the language of the statute itself and the words used in the statute or Constitution should be construed in their ordinary dictionary meaning, if no ambiguity arose in doing so.
22. It is, of course, true as contended by the learned counsel for the petitioners that the provisions of the Constitution should not be interpreted in a narrow and pedestal sense but in a broad and liberal spirit but, in my view, this does not mean that the Court should be free to stretch or pervert the language of an enactment in the interest of any legal or Constitutional theory. When the provisions of the fundamental right of freedom of association are considered in the light of principle of interpretation of statute I find myself unable to agree with the contentions of the learned counsel for the petitioners that the aforesaid fundamental right also carried with it the right of a political party to participate in an election of the members of the Assembly."
21. As we all know the right to participate in election has been made available to the State Subjects by a statute and not under any Fundamental Right conferred by the Constitution Act. The Constitution has authorized the Legislature to enact the law relating to the elections of the Legislative Assembly. The legislative powers can be exercised either by the Assembly or under section 41 of the Constitution Act by the President. The Ordinance promulgated by the President has the same force and effect as an Act of the Assembly. The President in the present case has competently promulgated the under-challenge Ordinance, therefore, it cannot be said that it lacks legal competence. Therefore, in the light of F the above discussion, the arguments of the learned counsel for the appellant is misconceived that the impugned legislation is opposed to Fundamental Right No.7.
22. The next objection raised by the learned counsel for the appellants that the impugned Ordinance is against the Fundamental Right No. 15 is also misconceived. He has built up his arguments on the ground that the impugned Ordinance is the result of malice on the part of the sitting Government. According to him in order to secure success in the election, law has been enacted in such a manner that a "qualification" has been inserted in law as "disqualification" to pave the way for the success of its candidates. According to him his clients in past remained Members of the legislative Body and played very effective role. Up to the date when the impugned legislation was enforced they were eligible to contest election for the Legislative Body. Through the impugned legislation the condition of being a matriculate or having equivalent "qualifications" for contesting the election of the Legislative Assembly, a discrimination has been created among the State Subjects and practically the doors of the Legislative Assembly have been closed for those who are not matriculate or have equivalent qualification.
23. While meeting this objection, Khawaja Attaullah, the learned Additional Advocate-General and Mr. M. Tabassum Aftab Alavi, Advocate, argued that the impugned Ordinance does not militate against the provisions of the Constitution Act. According to them the "qualification" provided through under challenged Ordinance shall apply to all the State Subjects and not to the Members of any particular political party. According to them after 53 years of the independence, the Government has rightly laid down at least matric "qualification" for those who wanted to participate in the elections for Legislative Body of the State.
24. As has been discussed by us, in the light of the citation of this Court, the condition of being a matriculate or having equivalent "qualification" has been inserted in the list of "disqualification". The law has been enacted under sub-clause (f) of subsection (2) of section 24 of the Constitution Act which empowers the Legislature to provide "disqualification" and not "qualifications--. Therefore, we are unable to agree with the learned counsel for the appellant that in fact a "qualification" has been provided in the style of "disqualification". In the same way we are unable to agree with the learned counsel for the appellants that the President has suddenly promulgated the Ordinance under-challenge without providing time to his clients to improve their qualifications. The President can promulgate an Ordinance at any time. It is the prerogative of the President to select the time.
No hard and fast G rule can be laid down by the Courts in this regard. The only restriction imposed under the Constitution Act is that he cannot exercise this power, when Assembly is in session as during such period it can exercise its legislative powers. It is not the claim of the appellants that the Ordinance was promulgated by the President when the Assembly was also holding its session. On account of this reason the President was legally competent to promulgate an Ordinance and mere announcement of the schedule of the election by the Chief Election Commissioner does not affect the validity of the under-challenge Ordinance. The learned counsel for the respondents have referred number of authorities in support of this contention that President can promulgate an Ordinance at any time. These authorities need not be discussed in this judgment as this Court in case titled Raja Muhammad Niaz Khan, Ex-Chairman, Azad Jammu and Kashmir Mineral and Industrial Development Corporation v. Azad Government of the State of Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53, which we shall discuss in the coming part of this judgment, has held that the President can promulgate an Ordinance at any time. This argument of the learned counsel for the appellants is, therefore, without force. The second part of his objection that the impugned Ordinance has resulted in discrimination among the State Subjects is also misconceived. It is an admitted position of law that no law can be made against the provisions of the Constitution Act and further that if any law is unreasonable and it offends against any of the Fundamental Rights the same can be struck down. But in the present case no discrimination appears to have been made between the State Subjects. The "disqualification" added through impugned legislation shall apply to all the State Subjects, therefore, the arguments of the learned counsel for the appellants has got no force in it.
25. The other objection of the learned counsel for the appellants was that the legislation of the impugned Ordinance is the result of malice. According to the learned counsel for the appellants in 1996 the present Prime Minister who was also President of People's Party invited his client Ch. Muhammad Yousaf to change his political affiliation but he refused to join his party. Later on Muslim Conference on account of certain political differences was divided into two groups but due to the efforts made by his client ultimately these two groups once again got united. The Prime Minister was, therefore, annoyed with him. He in order to eliminate him from becoming member of the Legislative Assembly maliciously advised the President to promulgate the impugned Ordinance. This Ordinance, therefore, is motivated with malice and for this reason cannot sustain.
According to the learned counsel his clients always have played very effective role as Members of the Legislative Body in past, therefore, there was no justification to include the condition of matriculation for contesting the elections. According, to the learned counsel the impugned Ordinance was promulgated to pave way for the success of candidates of Government choice. He further argued that on account of this mala fide legislation even voters who in past had always deposed confidence in his clients have been deprived to elect them as their representative as they are still their choice for their representation in the Legislative Assembly.
26. The learned counsel for the respondents denied this allegation that the impugned Ordinance is maliciously motivated just to exclude the appellants from the field of elections. According to them malice cannot be attributed to the Legislature and no law can be struck down on this ground. They in support of their arguments' referred number of authorities however, only two authorities are referred in this judgment. In case titled Raja Muhammad Niaz Khan, Ex-Chairman, Azsd Jammu and Kashmir Mineral and Industrial Development Corroraton v. Azad Government of the State of Jammu and Kashmir, Muzaffarabad PLD 1988 SC (AJ&K) 53, it is laid down as follows:-- "In view of the wording of section 41 of the Constitution Act, we are even of the view that even where the session of the Legislative Assembly is prorogued deliberately with a view to enabling the President to promulgate the Ordinance, it is a valid act, of the President and this exercise of the powers of the President cannot be called fraudulent or mala fide because under the Constitution Act it is within the powers of the President to prorogue the Legislature at any time he pleases. There is, therefore, nothing wrong in the President's proroguing the Assembly with a view to enable him to issue an Ordinance under section 41 of the Constitution Act. The reason seems to be this: The Legislature, which is democratically constituted is, at times, slow to move in the matter of legislation, having regard to the rules of procedure laid down in that behalf, and if urgent action is necessary at any rate, the President, after having the advice of the Prime Minister, if he has reasons to believe that immediate action is necessary, may resort to the power of issuing an Ordinance under section 41 of the Constitution Act; rather than approach the Legislature for the necessary legislation. A case reported as Re: K. Vecrabhadrayya AIR 1950 Mad. 243, is an authority on the point.
It would be thus manifest that the President cannot only re-enact an Ordinance but can even prorogue the sessions of the Assembly for the purpose."
27. They also placed reliance upon Fauji Foundation and another v. Shamim-ur-Rehman PLD 1983 SC 457 wherein it is laid down that in order to prove Legislature mala fide the party alleging the same must prove it through some evidence before expecting adverse presumption against such legislation otherwise the presumption would be in favour of bona fide intention of the Legislature.
28. We fully endorse the view expressed in the above-referred cases I that malice cannot be attributed to the Legislature without any strong proof. Under the Scheme of the Constitution Act law can he enacted either by the Assembly or by the President in exercise of the powers available to him under section 41 of the Constitution Act. The Ordinance ; promulgated by the President, therefore, has got the same force and effect as that of the Act of the Assembly. The presumption that law is made with bona fide reasons shall, therefore, apply also to such law which is enforced by the President through an Ordinance. The argument of the learned counsel for the appellants that the impugned Ordinance has been enacted with mala fide intention cannot be entertained in the absence of any evidence in support of such allegation.
29. The last argument of the learned counsel for the appellants was that under sub-clause (c) of section 22(1) of the Constitution Act one member of the Legislative Assembly has to be an Aalam- e-Din. According to him in the same section a "qualification" has been prescribed for such Member that he must be well versed with the teachings of Islam whereas under the impugned legislation an additional "qualification" has been prescribed for him that he must be also matriculate or have equivalent "qualification".
30. This point was rightly met by Khawaja Attaullah, the learned Additional Advocate-General, that in the impugned Ordinance the condition of being a matriculate or having equivalent "qualification" has been provided as `disqualification", therefore, the same cannot be read as additional "qualification" for an Aalam-e-Din According to him both these conditions that an Aalam-e-Din must IN well-versed with the teachings of Islam and also a matriculate can co exist.
31. We have considered the respective submissions of the learned counsel for the parties. The "qualification" provided under section 22(1) (c) of the Constitution Act for an Aalam-e-Din, and the condition of being a matriculate or having equivalent "qualifications" for contesting the election to the Azad Jammu and Kashmir Legislative Assembly as incorporated in the list of "disqualification" can co-exist in one person. The wisdom of the Legislature, therefore, cannot be challenged.