P L D 1996 Azad J & K 12 (PLP)

SYED MANZOOR HUSSAIN GILLANI, J.‑‑Through this petition under section 44 of the interim Constitution Act, 1974, the petitioner has challenged the Notification issued by respondent No.2, the Election Commissioner, on May 17, 1996 and holding of election on May 22, 1996 to the office of the President of Azad Jammu and Kashmir, A pre‑admission notice was served upon the respondents on May 19, 1996 and the petition came up with the comments of the respondents on May 20, 1996. On May 20,1996, the learned counsel for the petitioner in the mid of his arguments, moved an application of amendment in the writ petition on account of which the petition was adjourned to May 21 1996. The learned counsel for the respondents filed objections to the amendment application. The arguments on the amendment application were heard and amendment was allowed on which the learned counsel for the petitioner placed on record the amended petition at about 1‑30 p.m.

2. The facts as alleged in the amended petition are that the Election to the Legislative Assembly of the Azad Jammu and Kashmir took place on June 29, 1991 and the Members of the present Assembly shall complete their period of five years on July 23, 1996. The Chief Election Commissioner, respondent No.2, issued a Notification on May 15, 1996 whereby the electors of each constituency of Azad Jammu and Kashmir Legislative Assembly are called upon to elect a Member from each constituency. The elections are to take place on June 30, 1996.

3. The election to the office of the President of Azad Jammu and Kashmir was held in 1991 and Mr. Sikander Hayat Khan respondent No.4 being elected as President of Azad Jammu and Kashmir, took oath of his office as President on August 12, 1991. The tenure of his office was to expire in August, 1996 but he resigned from his office on May 13, 1996. A Notification is issued by respondent No.2 on May 16, 1996 (the date of Notification the writ petition is mentioned as May 17, 1996) giving programme of election to the office of the President. Under the Notification the nomination papers are to be field on May 21, 1996 and after completing the formalities mentioned in the Notification, the elections are to take place on May 22,1996. Respondent No.2 is appointed as the Returning Office for the election.

4. It is alleged that the former President has almost completed his term of office and only two and a half months were left when he resigned and provided a vacancy of the office. This resignation, according to the petitioner is mala fide, motivated and against the spirit of the Constitution. The Notification whereby the election to the office of President is to be held on May 22, 1996 is alleged to be mala fide and a device to fill the office of the President contrary to the spirit of the Constitution. The notification for the Presidential election, the holding of election and the candidature of respondent No.4 is alleged to be without lawful authority for the following main reasons:‑‑ (1) That after declaration of the schedule for elections to the new Assembly which are to take place on June 30, 1996, the present Assembly cannot be allowed to give new lease of life for a period of five years to the new incumbent as the vacancy occurred due to resignation of the former President, is filled in by the Speaker of the Assembly who is very much in existence and acting as President; (2) That the joint sitting will only elect the President once for a period of five years and cannot re‑elect another person for another period of five years. In case it is allowed, it would tantamount to so violence with the Constitutional provision. (3) That respondent No.4 cannot be a candidate for the Presidential Election as his resignation was motivated and mala fide who wants himself to be elected for a period of five years by frustrating the provision of Constitution. (4) That the future election of the President of Azad Jammu and Kashmir can‑only be for the unexpired period of the former President.

5. The respondents field parawise comments to the petition, as originally filed, on May 19, 1996 and objections to the application for amendment on May 21, 1996. Some preliminary objections have been taken to the maintainability of the petition by the Court, besides parawise comments upon the petition. As the Court had ordered only pre‑admission notice to the respondent, the objections to the maintainability of the writ petition, therefore, are not of much concern. However, in view of Rule 33(3) of the High Court Rules, 1984, the High Court has the power to ask from the party affected i.e. the respondents to show cause as to why the petition be not admitted. As the respondents on the pre‑admission notice have filed objections stating the reasons, as to why the petition may not be admitted, the learned counsel from both the sides were, therefore, heard at length till 3‑45 p.m.

6. Raja Muhammad Anwar Khan the learned counsel for the petitioner arguing the case contended:‑‑ (i) That the Legislative Assembly whose life is to expire on July 28, 1996, cannot elect the President for five years. (ii) That the resignation of respondent No.4 is mala fide and motivated for the reason that he wants to get himself elected from the Assembly which consist of the majority of the members belonging to his party and thus giving a lease of life to his future Presidentship for five years. (iii) That the intention of the Chief Election Commissioner by issuing Notification under section 5(2) of the Interim Constitution Act (hereinafter to be referred as Constitution) is clearly visualized that the future incumbent to the office of the President shall hold the office for five years while in fact the election to the office of President, if at all allowed, is to be held under section 5 of the Constitution for filling the casual vacancy which implies for the remaining period of the former President. (iv) That the Notification issued by the Speaker, respondent No. l on May 14, 1996, is without lawful authority as the President can only summon the joint sitting on the request of the Chief Election Commissioner under Rule 13 of Presidential Election Rules, 1985 (hereinafter referred to be as Rules). The summoning of the joint sitting by the Speaker (Acting President) was without a request of the Chief Election Commissioner under Rule 13, thus without lawful authority. It is lastly argued by the learned counsel for the petitioner that evasive reply to para. 6 of the petition is given in parawise comments which implies that new President is to hold the office for five years and not for the remaining period, thus the exercise of the election is motivated and mala fide.

7. The learned counsel for the respondents, Raja Muhammad Hanif Khan, contended that the entire edifice of the case in the argument is built‑up on the order of the Speaker, dated May 14,1996 while the same has not been challenged at all on account of which the petition is not maintainable in view of Rule 32(2) of the High Court Rules. The learned counsel further argued that under section 9(b) of the Constitution, it is the duty/powers of the Speaker to cause an election to the office of the President to be held within a period of 30 days from the date on which the office falls vacant. Basing his argument on the above‑referred provision of the Constitution, the learned counsel contended that it is for the Speaker to fix the date for the election and all other concerned with the election to the office of the President have to follow the rest under the relevant laws and Rules regulating the process. The learned counsel further contended that in election to the office of the President, the electoral college is the joint sitting under the Assembly and if the Schedule issued by the Chief Election Commissioner on May 16, 1996 is quashed, it would amount to depriving the Members of the joint sitting from the right of vote which is their Constitutional right and it at the same time would amount to the violation of the Constitution. The learned counsel relying on section 34(1) of the Constitution contended that the election of the President is a proceeding of the joint sitting validity of which cannot be challenged.

8. The learned counsel for the respondents placed reliance upon the following authorities:‑‑ (1) NLR 1991 Civil 646; (2) PLD 1991 Lah. 420; (3) PLD 1991 Azad J&K 89; (4) AIR 1957 SC 694; and (5) AIR 1974 SC 682.

9. We have considered the arguments advanced at bar and have gone through the authorities cited at bar. The fate of the entire case revolves around section 9 of the Constitution which reads as follows:‑‑ "

9. Casual vacancy in the office of President.‑‑Where the office of President falls vacant due to death, resignation or any other cause, the Speaker of the Assembly shall‑‑ (a) perform the functions of President till such time as a new President is elected; and (b) cause an election to the office of President to be held within a period of thirty days from the date on which the office falls vacant or, if the election cannot be held within that period because the Assembly is dissolved, within thirty days of the general elections to the Assembly." The office of the President of Azad Jammu and Kashmir fe11 vacant on May 13, 1996 when Sardar Sikandar Hayat Khan respondent No.4 resigned from his office. The Speaker of the Assembly, respondent No.1, by operation of clause (a) of section 9 of the Constitution entered into the office of the President as Acting President, as visualized by the definition of the word "President" as given in section 2; which is as follows:‑‑ " 'President' means the President of Azad Jammu and Kashmir and includes a person for the. time being acting as, or performing the functions of, the President of Azad Jammu and Kashmir." After entering into the office of the President to perform the functions of the President under section 9(a), the first duty of the Speaker is to cause an election to the office of the President. Subsection (b) of section 9 of the Constitution which obliges the Speaker performing the functions of President to cause the election is referred above and is clear enough.

10. The Speaker in pursuance of the above‑referred duty visualized by the provision of the Constitution, issued the Notification under No.3838/Assembly/96, dated May 14, 1996 which is published by the Secretary of the Assembly under No.3839/Assembly/96, dated May 14, 1996. The Notification reads as follows:‑‑

11. In pursuance of the above Notification, the Election Commissioner issued the Notification under No‑EC/40‑43/96 on May 16, 1996 which reads as follows:‑‑ In pursuance of Notification No. 3838/Assembly/96 dated 14‑5‑1996 issued by the Speaker, Azad Jammu and Kashmir Legislative Assembly and subsection (2) of section 5 of the AJ&K Interim Constitution Act, 1974, the Chief Election Commissioner shall conduct election for the office of the President on Wednesday the 22nd May, 1996, in the Administrative Block of the Legislative Assembly, Muzaffarabad as per programme set out below and for that purpose, is pleased to appoint Syed Muhammad Akram Shah, Secretary Election Commission, to be the Presiding Officer, namely:‑‑ (i) filing of nomination papers with the Chief Election Commissioner on Tuesday the 21st May, 1996, from 10‑00 a.m. to 12.00 noon at Secretariat Election Commission, 8‑36, Upper Chatter, Muzaffarabad. (ii) Scrutiny of nomination papers by the Chief Election Commissioner, exercising the power of Returning Officer, on the same day at the same place immediate after the filing of nomination papers; (iii) Withdrawal of nomination papers on the 22nd May, 1996 by 10‑00 a.m.; and (iv) the polling on the 22nd May, 1996, from 11‑30 a.m. to 2‑00 P.M. to be followed immediately thereafter by the counting of votes by the Chief Election Commissioner.

2. For the holding of the aforesaid election, the Speaker, Azad Jammu and Kashmir Assembly has already summoned the members of the AJ&K Assembly and Members of the AJ&K Council for election to the office of the President to assemble in joint sitting on 22nd May, 1996 in the Administrative Block of the AJ&K Legislative Assembly, Muzaffarabad to record their votes. (Sd.) Justice (R) Sardar Muhammad Ashraf Khan, Chief Election Commissioner, AJ&K." No.EC/40‑43/96.

12. After reproducing above section 9 of the Constitution relating to the casual vacancy in the office of the President, Notification of the Speaker performing the functions of the President and the Notification of the Election Commissioner declaring the Schedule of the Election to the office of the President, we revert back to the argument of the learned counsel for the petitioner that the Notification of the Speaker as well as the Election Commissioner are without lawful authority and mala fide ad that the resignation of the former President, respondent No.4, is mala fides and motivated

13. The President under section 9 of the Constitution has the privilege to resign from his office and it is not necessary for him to assign any reason for his resignation. Thus the argument of the learned counsel for the petitioner that the out going President who could remain in office for a further period of 2‑1/2 months, resigned to get himself re‑elected from the same Assembly for a further period of five years is mala fide is misconceived for the reasons; that the President, as said above, is not bound to assign any reason for his resignation; secondly there is nothing on record that he is a candidate to the election to the office of the President; and thirdly that he, if at all is candidate to the fresh election to the office of the President, is not disqualified under any provision of the Constitution to be a candidate for the office of the President afresh. A Full Bench of the High Court has already held in the case of Sultan Mahmood v. Chief Election Commissioner and 3 others PLD 1991. Azad J&K 9 that the sitting President is not excluded from seeking re‑election for the second consecutive term. Though in the case in hand, respondent No.4 is not contesting the election while in office as in the case referred hereinbefore, but the principle of law is the same that a person who is holding or has held the office of President immediately before the commencement of new election to the office of the President, is not in any way debarred or disqualified for being a candidate for the office of President. The question of mala fide or motivated resignation is the question of fact which requires evidence and thorough inquiry. The instances and the grounds of mala fides have to be specifically pleaded and pointed out. In the absence of specific instances of mala fide, nothing can be attributed against the respondents simply on the assertion of the petitioner. If a person under law is qualified to be a candidate for any election and is not by any specific prohibition debarred he cannot be deprived of such a right simply for the reason that a person does not want him to be the candidate for the office or to see him in the office. Moreover, this ground if at all to be treated as a ground, it has to be taken up before the authority at the time of the scrutiny of the nomination papers and in case of his failure to decide the matter lawfully, the same may be reviewed by the High Court in its Constitutional jurisdiction. The argument is based on speculation and, therefore, not tenable.

14. The other argument of the learned counsel which is connected with the above‑referred argument that in case of a casual vacancy to the office of the President under section 9 of the Constitution, the incumbent to the office whether respondent No.4 or anybody else can hold the office for the unexpired period of the former President, is also a premature assertion. If this proposition is at all of any substance or a weight, it can be resolved as and when the occasion arises. As the learned counsel himself suggests that the future incumbent can hold the office for the remaining period, the petition is premature and does not merit admission for mere academic purpose at this stage. The learned counsel for the petitioner, referring to section 5(3) of the Interim Constitution, contended that once the President is elected, his election cannot be called in question in any Court or before any Tribunal or other authority, hence it is the process of the election before the election is complete which can be called in question otherwise the petitioner would be deprived of his right. This proposition has already been settled otherwise holding the election to be open to challenge, in case of Ch. Sultan Mahmood v. Chief Election Commissioner and 3 others PLD 1991 Azad J&K 89 where after discussing the different subsections of section 5 of the Constitution, it is held as follows:‑‑ "From the bare reading of these Constitutional provisions it becomes clear that section 5 of the Act not only provides for the ouster clause but also specifically makes provision as regards the qualification/disqualification relating to election of a person as President. Subsection (3) clearly provides that election of the President under subsection (2) shall not be called in question in any Court or before any Tribunal or other authority. We cannot be oblivious of the fact that the section which contains the ouster clause does also contain the qualification/disqualification provision. The argument that sub section (3) provides a blanket immunity if accepted would simply render subsection (4) as redundant. Since the qualifications/disqualifications are contained in the Act itself, any action violative to these express and specific Constitutional provisions would be violative of the Constitution and the High Court in exercise of its judicial review powers available to it would unhesitatingly declare it to be so. What subsection (3) protects simply is the conduct and mode of election conducted under the supervision of the Chief Election Commissioner. The language employed in subsection (3) clearly refers to the election of the President under subsection (2) which is to be conducted under the control and supervision of the Chief Election Commissioner. What it provides for simply is that the procedure and method adopted in the conduct of elections, irregularities if any, committed therein and as regards the fair count of the votes cast etc. are given protection. It provides no immunity whatsoever to the pre -existing disqualification of a candidate."

15. The argument of the learned counsel for the petitioner is that the Election Commissioner having issued the Notification under section 5(2) of the Constitution manifests that the future incumbent shall hold the office for five years. The learned counsel elaborating his arguments contended that sections 5 and 9 of the Constitution are two independent sections and casual vacancy to the office of the President has to be filled in under section 9 and not under section 5 of the Constitution. The argument does not fit in the scheme of the Constitution for the reason that section 9 deals with an eventuality for filling in the casual office till the President is regularly elected in accordance with law. Section 9 of the Constitution provides no other mode for election to the office of the President except that it obliges the Speaker performing function of President to cause the election to the office of the President to be held within thirty days. The Speaker after having issued the Notification dated May 14, 1996, has done all that he was obliged to do, rest is to be followed by the Chief Election Commissioner under section 5(2) of the Constitution which reads as follows:‑‑ "President.‑‑(1) There shall be a President of Azad Jammu and Kashmir, who shall be elected by the Members of the joint sitting by the votes of majority of the total membership of the joint sitting in such manner as may be prescribed. (2) The election to the office of President shall be conducted under the supervision of the Chief Election Commissioner. (3) .

16. The Chief Election Commissioner is obliged under the above‑referred subsection of the Constitution to conduct the election to the office of the President and do all that is needed in this behalf. The rest of the procedure after issuing of the Notification by the Speaker has to be the same as visualized for the election to the office of the President by section 5 and Rules called as Azad Jammu and Kashmir President Election Rules, 1985. There is no distinction in the provisions of the Constitution regulating the holding of election to the office of the President whether by way of General Election to the office after the expiry of the term of the President or where the casual vacancy in the office of the President occurs. Thus the argument of the learned counsel for the petitioner is misconceived.

17. The last argument of the learned counsel for the petitioner that Notification dated May 14, 1996 is without lawful authority for the reason that the President only can summon the joint sitting on the request of the Chief Election Commissioner under Rule 13 of the Presidential Election Rules, while in the present case, the joint sitting is summoned to meet by the Speaker through the impugned Notification. There is no doubt that the Speaker has summoned the joint sitting to meet on May 22, 1996 and this Notification is not issued on the request of the Chief Election Commissioner. A true perception of section 9(b) clearly visualized that it is the Speaker who has to cause the election to the office of the President when it falls vacant due to resignation or death. In that eventuality, the Speaker is to fix a date and the schedule for fulfilling the formalities visualized by Presidential Election Rules have to be fulfilled by the Chief Election Commissioner. There seems no violation of the Constitution or of the Rules because the Election Commissioner has followed the Notification of Speaker.

18. Viewed from another Constitutional angle, i.e. assuming casual vacancy not having occurred due to the resignation of Sardar Sikandar Hayat Khan, the elections to the office of the President were otherwise due to take place between June 11 to July 11, 1996, as the process had to be completed thirty days before the expiry of the term of former President Sardar Sikandar Hayat Khan under subsection (3)(a) section 5 of the Constitution and his term was due to expire on August 11, 1996. The electoral college in that case and at that time would still have been the present Assembly unless earlier dissolved by the President on the advice of the Prime Minister under section 28 of the Constitution. Its term is to expire on July 28, 1996 as visualized by subsection (3) of section 22 of the Constitution with other components of the joint sitting whose membership is not disputed and cannot be disputed as their offices can never be assumed to Le vacant under the Constitution. The petition does not merit admission on this sole ground as well.

19. Apart from the above, the petition is liable to be dismissed for the non- compliance of the Rules of the High Court. Under Rule 32(2), a certified copy of the impugned order had to be accompanied with the writ petition. The impugned order, as argued at Bar, is the Notification of the Speaker, dated May 14, 1996. The Schedule issued by the Chief Election Commissioner is challenged and a copy of the Schedule is also attached with the petition but that does not give a cause of action to the petitioner as the Schedule is based upon the Notification of the Speaker and unless the Notification itself is challenged and accompanied with the petition, the writ petition is not maintainable. The Supreme Court in the case Municipal Committee, Dadyal v. Mistri Abdur Rehman and others 1992 MLD 1289, has held that if the Rules of the High Court relating to the writ petition are not followed, the order passed by the High Court would be without jurisdiction. So, the writ petition not challenging the order of the Speaker and not being accompanied by the order, is not maintainable.

20. Another point on which the writ petition merits dismissal is that quashing the Schedule issued by the Chief Election Commissioner would amount to deprive the electoral college i. e. the joint sitting from the right of their vote. As none of the Members of the joint sitting i. e. the Members of the Legislative Assembly, the elected Member's of the Council and the Minister Incharge of the Council Secretariat have been impleaded as party in the case, no relief can be granted to the petitioner depriving the Members of the joint sitting of their valuable right of vote.

21. In view of what has been stated above, no ground is made out for admission of the writ petition for regular hearing. It is therefore dismissed in limine. A.A/96/AJ&K