1996 PLP 1842 (CLC)

5. Raja Muhammad Siddique Khan, Advocate maintained that sections 11 and 13 of the Ordinance do not provide for signing any such declaration or otherwise providing any penalty for its non‑compliance, as such the orders rejecting the nomination papers by the Returning Officers and subsequently by the Chief Election Commissioner, are not maintainable. The learned counsel explained that a candidate has to sign a declaration that he has consented to the nomination and also that he is not subject to any disqualification for being elected as a member. The requirement of further declaration to be signed by a candidate is not recognised by law. It was also argued that clause (a) of subsection (3) of section 13 of the Ordinance providing for the rejection of the nomination papers of a candidate, for not being qualified, does not refer to the qualifications or disqualifications maintained in section 5 of the Ordinance, therefore argued in favour of acceptance of the nomination papers.

6. Mr. M.S. Tariq, Advocate, advanced his arguments in support of the writ petition by maintaining that the scheme of the Constitution Act provides for State's accession to Pakistan after the liberation of the entire State which shall include the present liberated area as well but shall not mean the accession of a part of it. Therefore, the provisions providing for declaration in this regard, are against the spirit of Constitution Act. The declaration in dispute is also against the United Nations and Security Council's Resolutions, providing for the status of the State.

7. Ch. Muhammad Azam Khan, Advocate and Mr. Muhammad Akram Mughal, the Additional Advocate‑General, raised somewhat similar arguments in the manner that the qualifications and disqualifications provided in the Constitution Act also include the qualifications and disqualifications envisaged in the Ordinance as, according to them; a person shall be disqualified to be elected as a member if he is otherwise disqualified from being a member of the Assembly by the Constitution Act or by or under any other law. Clause (vii) of subsection (2) of section 5 of the Ordinance clearly provides disqualifications for a candidate to be elected as a member if he is propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan, ideology of State's accession to Pakistan or the sovereignty, integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan. It was further argued that the requirement of declaration in consonance of above law was legally necessary, therefore, non‑signing of above declaration or giving a declaration other than the one prescribed by law, is clearly against the provisions providing for the qualifications or disqualifications for a candidate. The learned‑ counsel while arguing, supported the orders rejecting the petitioners' nomination papers, by referring to clause (2) of subsection (7) of section 4, the First Schedule relating to the oath of the office of the President and Prime Minister, of the Constitution Act and the provisions envisaged in clause (vii) of subsection (2) of section 5 and sections 11 and 13 of the Ordinance.

8. The learned counsel appearing for the petitioners did not advance any argument in relation to the challenge made in the writ petitions for acceptance of nomination papers of other candidates in the respective constituencies of the petitioners, therefore, the point virtually was abandoned by the petitioners. Even otherwise, nothing has been brought on record to support the above assertion.

9. I have heard the learned counsel for the petitioners and the learned Advocates appearing at the request of the Court as amicus curiae. The nomination papers of the petitioners were rejected by the Returning Officers of the respective constituencies on the ground that the petitioners have failed to sign the prescribed declaration. The appeals filed by the petitioners before the Chief Election Commissioners, Azad Jammu and Kashmir, also failed. The first point to be resolved is whether any law dealing with such disqualification on the basis of which petitioners' nomination papers were rejected, existed. It may be pointed out that section 24 of the Constitution Act provides for the qualifications and disqualifications for a candidate to be elected as member of the Azad Jammu and Kashmir Legislative Assembly. It may also be mentioned that clause (t) of subsection. (2) of section 24 of the Constitution Act, also provides the disqualifications provided under the Act or by any other law. The Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970 provides for the conduct of election to the Legislative Assembly and for matters connected therewith. The said Ordinance also contains the qualifications and disqualifications as envisaged in section

5. The Act also provides for the nomination and scrutiny in sections 11 and 13 of the Ordinance. The provision under which the relevant declaration is provided for, is envisaged in clause (vii) of subsection (2) of section 5 of the Ordinance which is not found in the qualifications or disqualifications provided in section 24 of the Constitution Act. The proposition whether a qualification or disqualification not provided in the Constitution Act but in the subordinate legislation would be having the sanction of Constitutional provision, attracted the attention of the learned Judges of the Supreme Court of Azad Jammu and Kashmir in the case of Sardar Sikandar Hayat Khan (PLD 1991 SC (AJ&K) 1), wherein it was held at page 12 as under:‑‑ " ....A plain reading of section 24 of the Interim Constitution Act clearly, reveals that general qualifications for contesting election to the Azad Jammu and Kashmir Legislative Assembly envisaged in subsection (1) of section 24 of the Interim Constitution Act are to be read jointly with disqualifications enumerated under subsection (2) of section 24 of the Interim Constitution Act. The general qualifications envisaged under subsection (1) of section 24 do not bestow an absolute right upon a person to contest election irrespective of the disqualifications which are laid down under subsection (2) of section

24. Any of the disqualifications envisaged under the aforesaid provisions or by or under law envisaged under clause (t) of section 24 of the Interim Constitution Act, would disentitle a person to contest elections to the Legislative Assembly, despite the fact that he possesses all the three qualifications laid down under subsection (1) of section 24 of the Interim Constitution Act. Any disqualification imposed by a subordinate legislation as envisaged under clause (f) of subsection (2) of section 24 of the Interim Constitution Act would equally debar a person from contesting election and the disqualifications so imposed would be as good as any ‑ disqualification enumerated in subsection (2) of section 24 of the Interim Constitution Act, because a disqualification imposed by subordinate legislation would have sanction of Constitutional provisions contained in clause (f) of subsection (2) of section 24 which envisage that a disqualification can be imposed by any other law." Relying upon the aforesaid authority, it can safely be resolved that the disqualifications provided in the Ordinance shall have the same force as provided in the Constitution Act. Therefore, the objection raised by the learned counsel for the petitioners with regard to the qualifications and disqualifications provided in the Ordinance, being in conflict with the Constitution Act, merits no consideration.

10. Next, the question arises whether the declaration as provided for, could be prescribed for a candidate and failing to sign the salve could entail rejection of his nomination papers. The proposition does not require any discussion. The law in this regard envisaged in clause (vii) of subsection (2) of section 5 of the Ordinance, has been clearly provided. Therefore, any declaration in this regard cannot be regarded a contravention of the law. Its non‑compliance definitely leads to a conclusion for a candidate to go against the spirit of above provision which, in any case, is a disqualification provided for the purpose. The relevant provision is usefully reproduced as under:‑‑ "S.5(2). A person shall be disqualified for being elected or chosen and for being a member: if‑‑ (i) to (vi) xx xx xx xx xx xx xx xx xx xx (vii) he is propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan, the ideology of State's accession to Pakistan or the sovereignty, integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan or morality, or the maintenance of Public order, or the integrity or independence of the Judiciary of Azad Jammu and Kashmir or Pakistan, or the Armed Forces of Pakistan;‑‑‑"

11. The point raised by the learned counsel for the petitioners that section 11 of the Ordinance providing for nomination does not require a declaration of the sort as in dispute, also merits no consideration for the simple reason that section 11 of the Ordinance provides to propose or second the nomination of any duly qualified person to be a member for a constituency. Clause (a) of subsection (2) of the above section provides for a declaration to be signed by the candidate to have consented the nomination alongwith a declaration for his being not, subject to any disqualification to be elected as a member. A declaration in the light of the provisions meets the requirement of law. The relevant provision is reproduced as under:‑‑ "S.11 ‑‑(I) xx xx xx xx xx xx xx xx xx (2) xx xx xx xx xx xx xx xx xx (a) a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification, for being or, being elected as, a member;

12. In the light of the above discussion, the writ petitions merit no consideration which are hereby dismissed in limine. A.A./102/AJ&K Petitions dismissed.