1991 PLP 2658 (MLD)

(2) The Prime Minister of Pakistan shall be the Chairman of the Council. (3) The President shall be the Vice-Chairman of the Council. (3-A) The Federal Minister of State for Kashmir Affairs and Northern Affairs shall be an ex officio member of the Council. (4) The qualifications and disqualifications for being elected, as, and for being, a member of the Council shall, in the case of a member referred to in clause (e) of subsection (1), be the same as those for being elected as, and for being a member of the Assembly. (4-A) The seat of a member of the Council elected by the Assembly, hereinafter referred to as an elected member, shall become vacant if-- (a) he resigns his seat by notice in writing under his hand addressed to the Chairman or, in his absence, to the Secretary of the Council; (b) if he is absent, without the leave of the Chairman, from thirty consecutive sittings of the Council; (c) he fails to make the oath referred to in subsection (6) within a period of ninety days after the date of his election, unless the Chairman, for good cause shown, extends the period; or (d) he ceases to be qualified for being a member under any provision of this Act or any other law. (4-B) If any question arises whether a member has, after his election, become disqualified from being a member of the Council, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member and his seat shall become vacant. (4-C) An election to fill a vacancy in the office of an elected member shall be held not later than thirty days from the occurrence of the vacancy or, if the election cannot be held within that period because the Assembly is dissolved, within thirty days of the general election to the Assembly. (4-D) The manner of election of elected members and filling of a casual vacancy in the office of an elected member shall be such as may be prescribed. (5) An elected member shall hold office for a term of five years from the day he enters upon his office: Provided that an elected member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. (6) An elected member shall, before entering upon office, make before the Chairman oath in the form set out in the First Schedule. (7) The executive authority of the Council shall extend to all matters with respect of which the Council has the power to make laws and shall be exercised in the name of the Council, by the Chairman who may act either directly or through the Secretariat of the Council of which a Federal Minister nominated by the Chairman from amongst the members of the Council and not more than three Advisors appointed by the Chairman shall be incharge: Provided that the Council may direct that, in respect of such matters as it may specify, its authority shall be exerciseable by the Vice-Chairman of the Council, subject to such conditions, if any, as the Council may specify. (8) An Advisor may be appointed from amongst the elected members or the members of the Assembly. (9) An Advisor shall, before entering upon office, make before the Chairman oath in the form set out in the First Schedule. (10) An Advisor who is a member of the Assembly and the Federal Minister of the State for Kashmir Affairs and Northern Affairs shall have the right to speak in, and otherwise take part in the proceedings of the Council, but shall not by virtue of this subsection be entitled to vote. (11) The Council may make rules for regulating its procedure and the conduct of its business, and shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings of the Council shall not be invalid on the ground that a person who was not entitled to do, so sat, voted or otherwise took part in the proceedings. (12) Orders and other instruments made and executed in the name of the Council shall be authenticated in such manner as may be specified in rules to be made by the council and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Council. (13) The Chairman may regulate the allocation and transaction or the business of the Council and may, for the convenient transaction of that business, delegate any of its functions to officers and authorities subordinate to it. (14) The words `The Prime Minister of Pakistan' wherever occurring in this section shall be deemed to include the person for the time being is exercising the powers and performing the functions of the Chief Executive of Pakistan." and Section 22 deals with the Legislative Assembly, which originally read as under:-- "

22. Legislative Assembly.-- (1) The Legislature of Azad Jammu and Kashmir shall consist of a Legislative Assembly consisting of forty-two members of whom-- (a) forty shall be elected directly on the basis of adult franchise, and (b) Two, who shall be women shall be elected by the directly elected members. (2) The manner of election of the members of the Assembly and the manner of filling casual vacancies shall be such as may be prescribed. (3) Every Assembly, unless sooner dissolved, shall continue for five years from the date appointed for their first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of the Assembly."

11. Prior to this amendment, as stated above, the Legislative Assembly consisted of forty-two members. Forty members were to be elected directly on the basis of adult franchise and two women were to be elected by the directly elected members. In the Azad Jammu and Kashmir Council, six members were to be elected by the Assembly from amongst the State Subjects in accordance with the system of proportional representation by means of single transferable vote.

12. This argument of the learned counsel for the petitioner that by the present amendment, three more seats have been inducted in the Assembly and these three members are to be elected by the directly elected members of the Assembly and this has changed the fundamental structure of the Constitution, carries no substance. So far as the system of election by the directly elected members of the Assembly is concerned, that has not been newly introduced in the Constitution but it was already provided in the Constitution prior to the present amendment. As stated above, two women were to be elected by the directly elected members of the Assembly, so it cannot be said that now by inducting these three seats, a new system has been introduced in the Constitution and the fundamental structure of the Constitution has been changed. Six members of the Council, as stated above, were also to be elected by the Assembly, prior to this amendment. So, in this way, it cannot be said that a new system has been introduced in the Constitution or a new method of election of the aforesaid three members has been introduced in the Constitution. The fact is that this system was already existing in the Constitution. Prior to this, only two members were to be elected by the Legislature but now six members are to be elected by the members of the Assembly, so it is just an addition of the seats which were to be filled in by way of indirect election. Therefore, the contention of the learned counsel for the petitioner that by this amendment, the fundamental structure of the Constitution has been changed, carries no substance, because by this amendment, no new system has been introduced in the Constitution but just an addition of the seats has been made. The case-law referred to by the learned counsel for the petitioner (A I R 1975 SC 2299 and A I R 1976 SC 1643) has no bearing on the facts of the present case.

13. The next contention of the learned counsel for the petitioner is that the present amendment is violative of Section 22 of the Interim Constitution. Section 22 of the Constitution originally provides that the Legislative Assembly of Azad Jammu and Kashmir shall consist of forty-two members of whom forty were to be directly elected on the basis of adult franchise and two were to be elected by the directly elected members and now instead of two, eight members are to be E elected by the directly elected members. So, in this way, this amendment is not violative of Section 22 of the Interim Constitution. So far as the contention of the learned counsel for the petitioner that the amendment is violative of Section 22 (a), is concerned, no amendment has been made in Section 22 (a) but the amendment has been made m Section 22 (b) and after (b), clauses (c), (d) and (e) have been added. These are not, in any way, violative of Section 22 (a).

14. So far as this contention of the learned counsel for the petitioner is concerned, that prior to this amendment there were only forty members to be elected directly on the basis of adult franchise and two women were to be elected by the directly elected members of the Assembly and now a third category has been introduced which is unrecognised in the parliamentary form of Government, it carries no substance, as the amendment is not violative of any constitutional provision.

15. This contention of the learned counsel for the petitioner that indirect election of the members is against the spirit of democracy, also carries no substance because indirect election has also been provided in the Constitutions of so many countries. Even in the American Constitution, prior to the 17th amendment, the members of the Senate were to be elected by the Legislature but later on, by an amendment in the Constitution, the system of indirect election has been changed into direct election. Even otherwise, there is also a reasoning for adopting this method. Even in America, the reasoning given by the framers of the Constitution was that this method would bring in the Senate persons of high practical experience who have served for a longer period in the State Legislature or as public officers. Direct election, it was feared, might enable an unqualified and unreasonable person to win at the polls but would not be possible for them to befool the Legislators. In our country, election of experts like technocrats and Ulema-e-Din etc., is more proper by way of indirect election than direct election because the Legislature. who would elect technocrats and Ulame-e-Din etc., has been elected by the people on the basis of adult franchise and the election of technocrats, Ulema-e-Din by the elected members is election by the people.

16. The contention of the learned counsel for the petitioner that nowhere m the world, there is any such like system in a parliamentary form of Government to elect members by indirect election, carries no substance, because the system of indirect election has even been provided in Article 51 of the Constitution of Pakistan of 1973, which reads as under:-- "

51. National Assembly.--(a) The National Assembly shall consist of two hundred members to be elected by direct and free vote in accordance with law. (2)

(3)

(4) Until the expiration of a period of ten years from the commencing day or the holding of the second general election to the National Assembly, whichever occurs later, ten seats in addition to the number of seats referred to in clause (1) shall be reserved for women and allocated to the Provinces in accordance with the Constitution and law. (5) For the purpose of election to the seats allocated to a Province under clause (4), the members of National Assembly from that Province shall constitute the electoral college.

which clearly provides that women were to be elected by the directly elected members of the Assembly.

17. So far as the contention of the learned counsel for the petitioner that the introduction of these seats in the Constitution by the amendment, is against the spirit of the parliamentary form of Government because these seats have been reserved for particular persons, it is also without any substance. All over the world, seats for experts are reserved in the Legislative bodies to provide them a chance to be elected as members of the Assembly on the basis of their knowledge and specialisation. For this very matter, I would like to refer to the Constitution of India. Section 79 of the Indian Constitution deals with the constitution of Parliament.-In India, the Parliament consists of the President and two Houses to be known respectively as the Council of States and the House of the People. The composition of the Council of States has been provided in Article 80 of the Constitution. According to clause (1), twelve members of the Council are to be nominated by the President in accordance with the provisions of clause (3). This clause reads as under:-- "(3) The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:-- Literature, science, art and social service." Thus, it is clear that in the Indian Constitution even, seats have been reserved for persons having special knowledge and on those seats, persons are to be nominated by the President, whereas in our Constitution, such persons are to be elected by the directly elected members of the Assembly.

18. The next contention of the learned counsel for the petitioner is that the non-petitioner No, 1. is not an `Aalim-e-Din' or 'Shaikh'. The definition of `Aalim-e-Din' or 'Shaikh' has been provided in the amendment, which reads as:-- 'Aalim' or 'Shaikh' means a Muslim scholar with high qualification in religious education or specialized knowledge in `Fiqah', `Tafseer' and `Hadith' to his credit and engaged for at least ten years in dissemination or preaching of these subjects either as 'Aalim-e-Din' or 'Shaikh'." The contention of the learned counsel for the petitioner is that high qualification means that the person must have obtained highest academic qualifications and he must have obtained a degree from some University. Nowhere in the definition of "Aalim" or "Shaikh", it has been provided that the person should be post-graduate or graduate. The words which have been used are that "Aalim" or "Shaikh" means a Muslim scholar with high qualification in religious education or specialized knowledge in "Fiqah", "Tafseer" and "Hadith" to his credit and engaged for at least ten years in dissemination or preaching of these subjects. Here, the word "High qualification" does not mean that the person should have obtained some highest degree from any University. So far as the word "qualification" is concerned, "qualification" generally includes attributes, natural and legal quality, which render a person admissible to or acceptable for a place or office. Qualification is enabling quality, thus it is an enabling quality in a person. The word "qualification" conveys the fitness or capacity of a person for a particular post. Now, in the present Constitution, the qualification has not been stipulated with the condition that the person should be a post-graduate or should possess some other degree, but the simple word "qualification" has been used, so this contention of the learned counsel for the petitioner that he must have obtained some higher class degree, carries no substance. There is also not any proof nor it has been stated that how non -petitioner No.1 is not qualified or how he is not capable to be an Aalim-e-Din, nor his knowledge about Fiqah and Tafseer has been challenged. Even otherwise, so far as it is concerned that whether the non-petitioner No.1 is not qualified in religious education or he has not disseminated or preached the subjects, no supporting document in this respect has been appended with the writ petition by the learned counsel for the petitioner. Merely by saying of the petitioner that the non-petitioner is not qualified, does not render him unqualified to be Aalim-e- Din unless it is supported by some cogent evidence. Thus, this contention of the learned counsel for the petitioner is also baseless and without any reasoning.

19. The next contention of the learned counsel for the petitioner is that the inaugural session of the Assembly, in which the non-petitioner No.1 has been elected as Prime Minister, was unconstitutional. The learned counsel for the petitioner, while elaborating this point, referred to Section 27 of the Interim Constitution and argued that it was the President of the time who could summon the Assembly as provided in Section 27 and as the President has not summoned the Assembly, its session was unconstitutional. This contention of the learned counsel for the petitioner carries no substance, because Section 13 of the Interim Constitution provides that the Assembly shall meet on the thirtieth day following the day on which a general election to the Assembly is held, unless sooner summoned by the President. Section 13 clearly contemplates that after the general election, on the thirtieth day, the session of the Assembly will automatically be held but the President may summon it earlier to the thirtieth day. In the present case, the session of the Assembly was held on the thirtieth day following the general election. There was no need for summoning the Assembly on the thirtieth day following the general election as, according to the Constitutional provision, the Assembly was automatically to meet on that day. When the learned counsel for the petitioner was confronted with the aforesaid position, he did not press the point.

20. So far, as the next contention of the learned counsel for the petitioner is concerned that the oath was not administered to the non-petitioner No.1 by Sahibzada Ishaque Zaffar and once Sahib7ada Ishaque Zaffar being Speaker of the Assembly, had assumed the office of President, he was to remain President till the new President entered upon his office, it carries no substance because Section 8 of the Interim Constitution provides that at any time when the President is unable to perform the functions of his office due to absence, illness or any other cause, the Speakar of the Assembly shall act as President and shall perform the functions of the President. This section clearly provides that it is only the Speaker who shall act as President and shall perform the functions of President in absence of the President. No doubt that when the President resigned, at that time Sahibzada Ishaque Zaffar was Acting President but he was Acting President because of his office of Speaker and when the new Speaker was elected, he ceased to be Speaker. Section 29, subsection (8) of the Interim Constitution is very much clear on the point, which envisages that when the Assembly is dissolved, the Speaker shall continue in his office till the person elected to fill the office by the next Assembly enters upon his office. Thus, he was entitled to remain Speaker till a new one entered upon the office. As the new Speaker was elected and he took oath of his office and started conducting proceedings of the Assembly, thus Sahibzada Ishaque Zaffar, after election of the new Speaker, ceased to be Speaker of the Assembly. Thereafter, he could not be acting President because, as stated above, only the Speaker can be Acting President and as and when he ceased to be Speaker, then, of course, naturally he would be no more Acting President. Thus, the oath administered by the newly elected Speaker as President was quite in conformity with law. In view of the above listed position, finding no force in the writ petition, it is hereby dismissed in limine. AA/480/H.CA. Petition dismissed.