1999 PLP 2499 (YLR)

BASHARAT AHMAD SHAIKH, J‑‑‑ The petitioner filed a writ petition in the High Court in which, broadly speaking, he claimed the following reliefs:‑‑ (1) It may be declared that right to form political parties in Azad Jammu and Kashmir is enjoyed only by the State Subjects, and that Mohtarama Benazir Bhutto, Chairperson Pakistan People's Party and Mohtaram Hamid Nasir Chatta, President Pakistan Muslim League (J), not being State Subjects, can neither form a political party in Azad Jammu and Kashmir nor can extend the activities of the Pakistani political parties headed by them to Azad Jammu and Kashmir, and also that the aforementioned political parties are not legally entitled to take part in elections of Azad Jammu and Kashmir. (2) It may be declared that respondents Nos.4 to 42, who are members of Azad Jammu and Kashmir Legislative Assembly as well as members of Azad Jammu and Kashmir Council belonging to Pakistan People's Party and Pakistan Muslim League (J) (including the Prime Minister and Ministers) were not entitled to participate in the elections of the Assembly and the Council as nominees of Pakistan People's Party and Pakistan Muslim League (J). (3) Having been elected as nominees of the above said political parties, the said respondents cannot legally perform functions as such members, therefore, they may be called upon to show under what authority of law they are holding their respective offices. (4) The said respondents may also be called upon to show under what authority of law, being representatives of Pakistan People's Party and Pakistan Muslim League (J), they are holding offices as Prime Minister, Speaker, Deputy Speaker, Ministers. Advisors, Special Assistants and Parliamentary Secretaries.

2. The writ petition has been dismissed by the High Court sitting as Full Court which comprised the learned Chief Justice and four learned Judges observed as follows:‑‑ "

3. After hearing the petitioner, we have considered the arguments advanced at bar and have gone through the law regarding formation of a political party, election to the assembly and the council etc. The question as to whether a political party is a foreign party or a foreign aided party, can be determined by the Government in view of section 9 of the Political Parties Act, 1985 and in case the Government is satisfied that a political party is a foreign aided party and has been formed for operating in a pre‑judicial manner in Azad Kashmir, the Government shall make such a declaration and that party shall stand dissolved whereafter the matter shall be referred by the Government to the Supreme Court whose decision shall be final. Relevant section 9 of the Political Parties Act, 1985 is reproduced as follows:‑‑ '(8) Dissolution of political parties, (1) Where the government is satisfied that a political party is a foreign aided party or has been formed or is operating in a manner prejudicial to the Islamic Ideology or Ideology of State's accession to Pakistan, or morality, or main tenance, of public order or has contravened the provisions of sec tion 4, it shall make such a declaration and publish the same in the official gazette and upon such publication, the political party concerned shall, subject to the provisions of subsection (2) stand dissolved, and its all properties and funds shall be forfeited to the Government. (2) Within fifteen days of the making of a declaration under subsection (1) of the Government shall refer the matter to the Supreme Court whose decision on such reference shall be final.' Similarly the question as to whether a member of the assembly has become disqualified for being a member can be determined by the. Chief Election Commissioner on a reference made by the Speaker under subsection (2) of section 25 of the Constitution which is reproduced as follows:‑‑ '25(2).‑‑ If any question arises whether a member has, after his election become disqualified from being a member of the Assembly, the Speaker shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member and his seat shall become vacant. (4) In our view of the provisions of section 8 of the Political Parties Act, the alternate and efficacious remedy if any, being available, the petition to the extent of declaration of the parties attributed to respondent Nos. l and 2, as a foreign party or a foreign aided party, can be agitated before the Government only and in case the Government declares the party as a foreign aided party, the decision of the Supreme Court on a reference shall be final. As the specific law is in force for the remedy/declaration sought by the petitioner, the petition before the High Court is incompetent."

3. The above view has the support of all the learned Judges but there is a difference of opinion on another point which forms the other ground on which the writ petition has been dismissed. Four learned Judges have expressed the view that the membership of respondents Nos.4 to 42 can be challenged in the manner provided in subsection (2) of section 25 of the Azad Jammu and Kashmir Interim Constitution Act, reproduced above, and a writ petition is not maintainable in presence of this alternative remedy. In his dissenting opinion, one learned Judge has expressed the view that the provision reproduced above applies only where a member has incurred a disqualification after being elected as a member and has no application where a member was not qualified to be elected. He has also expressed the view that despite subsection (2), the superior Courts still can decide the question of disqualification if a writ of quo warranto is filed.

4. Sardar Muhammad Sayab Khalid, who is an Advocate of this Court, is not satisfied with the judgment of the High Court and seeks leave to appeal.

5. Relying on Fundamental Right No.7 he contended that no Pakistani political party can extend its functioning in Azad Jammu and Kashmir. He submitted that Pakistan Peoples Party and Pakistan Muslim League (J) have violated the law as stated, by extending their political parties in Azad Jammu and Kashmir. The petitioner referred us to resolutions passed by. the Security Council as well as the United Nations Commission for India and Pakistan (UNCIP) and contended that State Subjects have to decide whether they want to be with Pakistan or India through a fair and impartial plebiscite to be held under the auspices of United Nations. Therefore, he contended that extension of political parties of Pakistan to Azad Jammu and Kashmir militates against the right of the State Subjects to express their opinion at the time when they participate in the plebiscite. He explained that the Government of Pakistan or the people of Pakistan have no other role in Jammu and Kashmir except to perform those functions which are mentioned in the various resolutions mentioned above. Para.7 of the writ petition is as follows:‑‑ "The precise contention of the petitioner is that plebiscite is to be held to ascertain the free‑will of the people of Jammu and Kashmir but if people of Jammu and Kashmir become members of a Pakistani political party they will have no free will of their own to decide the question of accession because they would be bound by the party discipline of vote for accession to Pakistan. "

6. No conclusive proof has been brought on record that Pakistan People's Party Azad Jammu and Kashmir and Pakistan Muslim League (J) are branches of Pakistan People's Party and Pakistan Muslim League (J) but at the admission stage we have to assume the contentions as correct unless they are disproved.

7. After examination of the writ petition we find that first part of the writ petition in which the petitioner seeks a declaration about the actions of Mohtarama Benazir Bhutto and Mohtaram Hamid Nasir Chatta is not maintainable because writ does not lie against a private person. Under section 44 of the Azad Jammu and Kashmir Interim Constitution Act a declaration can only be given that "any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect." Mohtarama Benazir Bhutto and Mohtaram Hamid Nasir Chatta are private persons performing no function in connection with affairs of the State, therefore, a writ cannot issue against them.

8. However, the other part of the writ petition is in the nature of quo warranto under which the respondents Nos.4 to 42 can be called upon to show, if a prima facie case is made out, under what authority of law they are holding offices. The petitioner has himself appended record to show that they participated in the elections and obtained highest votes in their respective elections. It presupposes that they were found to be qualified to be so elected under the relevant laws such as the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, Electoral Rolls Ordinance as well as the Political Parties Act. According to the record of the case they were declared elected by the Chief Election Commissioner of Azad Jammu and Kashmir which means that they are holding their offices by authority of law. However, the petitioner contends that the said respondents were disqualified to participate in elections because they were nominees of the respective political parties mentioned above. Admittedly State Subjects have the right to form political parties. This right includes the right to join a political party of his own choice. Fundamental Right No.7 can be controlled by an Act as is provided in the Right itself, but there is no law in force in Azad Jammu and Kashmir that a political party in Azad Jammu and Kashmir cannot be affiliated with a political party in Pakistan or a political party of Pakistan cannot set up a branch in Azad Jammu and Kashmir. The High Court can only pass an order which is authorized by law. While deciding a writ petition the High Court can issue a direction or declaration if it is shown that a law has been violated. In the present case no such situation has been alleged in the writ petition.

9. The only restrictions imposed by law are those which are contained in the Azad Jammu and Kashmir Political Parties Act which regulates the formation and functioning of the political parties. The High Court has rightly reached the conclusion that according to the Act only such political party which is a foreign aided party or is operating in a manner prejudicial to Islamic Ideology or Ideology of State's accession and others is not allowed to function in Azad Jammu and Kashmir. These are the only restrictions which are legally in force in the liberated . territory. The High Court has also rightly held that. the power of dissolution of a political party which has been formed or is operating in transgression of law has been vested in the Government. No such power has been granted to the Court.

10. The questions raised by the petitioner are essentially political in nature. It is alleged that members of Pakistan People's Party Azad Jammu and Kashmir and Pakistan Muslim League (J) will be forced to vote for Pakistan because they will be bound by the party discipline to do so. Whether this is right or wrong is a political question which cannot be decided by Courts of law. Such matters can be controlled by laws which are made by the Legislature, not by the Courts. The Courts are not authorized to make laws. They also cannot decide political questions.

10. For these reasons we find no force in this petition for leave to appeal and order its dismissal. H.B.T./440/SC(AJ&K) Petition dismissed.