Governance of Azad Kashmir
Azad Kashmir is a narrow strip of mountainous land that borders Gilgit Baltistan in the north, Khyber pakhtunkhwa in the west, Punjab in the south and Indian administered Kashmir in the east. Its area is 13,297 kmsq with a population nearing 5 million, the region is divided into 10 districts. Recently there has been much debate on the constitutional position of gilgit baltistan with many arguments from UN resolution to the history of the Kashmir conflict. In this article we will touch neither but try to understand how is Azad Kashmir governed and where that governance finds its legitimacy. Is it through its popular elections or is it through its governance within the federation of Pakistan under the federal center or is it through its autonomous nature or is it through its separate state self. This will include an examination into its governing and constitutional body as well as the constitutional and governing body within Pakistan. Recently I have heard repeatedly many bring into discussion whether Azad Kashmir is part of the constitutional federation of Pakistan or is it an independent state. For this we must come to understand what azad Kashmir itself is.
The word “AZAD” Kashmir basically means Kashmir that has been freed aka Kashmir not under the occupation of India. Freed by the united efforts of the AZAD forces and the Pakistan army the state of Azad Kashmir has been a self-governing one which has its own elected president, an elected prime minister, a legislative body as well as a high court and a supreme court within its capital as well as a Flag. The governing system is based on the westminister system with its capital located at muzaffarabad. The system of governance is unicameral unlike the bicameral system that the state of Pakistan uses. It is linked to Pakistan through the ministry of Kashmir Affairs and Gilgit baltistan.
Azad Kashmir and the Pakistani constitution
Pakistanis from their homes to their schools are taught that azad Kashmir is Part of Pakistan and maps are displaying such. Any interaction with Azad Kashmiris also showcases the same. However little is taught about the governing structure of azad Kashmir at schools. Whether it’s a province, a protectorate e.t.c. Just that it is Part of Pakistan. This is why when anybody states that Kashmir could be an independent separate nation then many Pakistanis feel as if their territory is being taken or divided from them and thus showcase a reaction. Whether the statement comes from Lord Nazir, or the Pm of Azad Kashmir or even shahid afridi the reaction is always the same. This is greatly due to the ambiguity that plagues the entire area of Jammu and Kashmir. The legal loopholes it’s filled with and the complications that stand atop the area have created great confusion on the status of Gilgit Baltistan, Azad Kashmir and the state of Jammu and Kashmir. A sensitive topic for all sides that does not get the discussion that it deserves. Now let us look at the relation between Azad Kashmir and the 1973 constitution of Pakistan.
The constitution of Pakistan states the following
Chapter 1. Article 1
The republic and its territories
1. Pakistan shall be a federal republic to be known as the Islamic republic of Pakistan hereinafter referred to as Pakistan
2. The territories of Pakistan shall comprise ---
a) The provinces of Baluchistan, The Khyber Pakhtunkhwa, The Punjab and Sindh
b) The Islamabad capital territory hereinafter referred to as the federal capital
c) The federally administered tribal areas; and
d) Such states and territories as are or may be included in Pakistan, whether by accession or otherwise.
3. Majlis e shoora may by law admit into the federation new states or areas on such terms and conditions as it thinks fit
Along with article 257 Provisions relating to the state of jammu and Kashmir:
When the people of the state of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the state shall be determined in accordance with the wishes of the People of that state.
Apart from above the constitution makes no mention of azad Kashmir and most certainly not of Gilgit Baltistan.
The territories so describe highlight the legal limits of the constitution and law of Pakistan with provisions enacted for tribal areas.
Article 257 is an interesting read. It highlights two major elements.
1. That its accession to Pakistan is a preconceived notion that shall be upheld when it is formally done so and then the relationship between the state and its new acceded state shall be determined.
2. That unsaid is that currently the state has not acceded to Pakistan thus is an independent entity.
However Pakistan and azad Kashmir are extremely intertwined in their affairs. How did this come to be even if by the constitution of Pakistan that the state has not yet acceded to Pakistan nor holds mention within the territories of Pakistan?
Azad Kashmir and Pakistan
The first government of Azad Kashmir was established on 24th October 1947 under sardrar Muhammad Ibrahim who was its first president. On 3rd November azad Kashmir also sought, although unsuccessfully to become a member state of the United Nations. This highlights that the government during the initial stage of the freedom fight against the dogra rule sought a separate statehood which may or may not be in line with the thinking of its majority people as we saw gilgit baltistan after its freedom and formation independently without any duress joined Pakistan. Perhaps azad Kashmir would have done the same if it had liberated all of its territories but we are not here to discuss the ‘what ifs’ but the legal entity that is azad Kashmir. As the war ended the government of azad Kashmir which was run by the central committee of muslim conference formed into the azad Kashmir government and there with Pakistan framed “The rules of business” in order to administer the area of azad Kashmir but before that both the government of Pakistan and the then government of Pakistan signed the Karachi agreement.
The agreement was signed on 28th april 1949 between the two governments and it set down the division of power between the two governments as well as the muslim conference. Now this agreement was basically between three parties and their signatories were mushtaq ahmed gurmani from Pakistan, sardar Muhammad Ibrahim the president of AJK and ghulam abbas the head of All jammu and Kashmir muslim conference. Now the agreement based on the local administration, the relationship with Pakistan and the financial arrangements as well as the division of functions between the three powers.
Pakistan received within the agreement matters which were
1. Defence including the entire Azad army
2. Negotiations with UNCIP
3. Foreign policy
4. Refugee relief
5. Arrangements for plebiscite
6. All Kashmiri activities within Pakistan
7. And lastly the administration and entire affairs of gilgit baltistan and ladakh
AJK government was given the following
1. Policy of the state
2. Administration of the state
3. Advice to the Pakistan authority incharge of affairs of Kashmir as mentioned above
The MC received
1. Right to political activities within AJK
2. Political activities with the indian held Kashmir
3. Political activities within the refugees
4. Advisory for refugee rehabilitation
5. Advisory for the authority in charge of affairs of Kashmir as mentioned above
6. General guidance for the government of Azad Kashmir.
1948-1974 The legal frameworks which administered Azad Kashmir
As mentioned above with the war ending Pakistan and Azad Kashmir framed “the rules of business” The supreme head of azad Kashmir promulgated it in 1950 and placed it into enforcement. The supreme head of azad Kashmir has all the executive and legislative powers and he even had the power to appoint president and members of the council of ministers and every law required his approval to be passed. The government was a presidential system but it was under the supreme head of the state. The first supreme head was Chaudhary ghulam abbas who migrated to azad Kashmir from indian held Kashmir and was the leader of the MC as mentioned above. This created a massive rift as sardar Ibrahim was of the view that there should be a local authority which had also been mentioned in UNCIP as well as such singular vested powers created a dictatorship. This rift reached its climate with the sacking of sardar Ibrahim on May 1950 which led to mass protests and uprisings. The political differences between these two factions would shape the governance of azad Kashmir and would require an article on its own as it highlights how the Kashmir valley supported sardar Ibrahim and how the jammu refugees stood by Chaudhary abbas and abbas was not in favor of democracy. We will simply touch it where it will be required. This ofcourse was amended in 1952 and the ministry of Kashmir affairs was constitutionally introduced. It stated
The president shall hold office during the pleasure of All Jammu and Kashmir Muslim conference, duly recognized as such by the government of Pakistan in the ministry of Kashmir affairs.
Thus all powers stood now vested in the joint secretary of the ministry of Kashmir Affairs and all appointments into judiciary or government could only be made after due consultation with the ministry of Kashmir affairs. This would continue till 1958 when again the rules were revised and the joint secretary was removed and amended with the chief advisor. The govt of AJK could not create a post that was above a pay scale of 150 rupees and could only spend one lakh per annum ( be advised that the currency value are of that era). The MC had sole discretion in the appointment of the president and any person who enjoyed the confidence of the working committee of the muslim conference could enjoy his appointment as president. This was until 1960. These amendments were not popular and sparked great protests. The one in 1952 created a body that basically had all the powers to govern AJK. Over here the state of jammu and Kashmir was no more than a municipality and we slowly and slowly in its history come to understand the tightly locked relation between Pakistan and Azad Kashmir the ministry comes to power and Pakistan began to directly and entirely rule azad Kashmir. Add this as well that till 1960 the people of AJK remained without adult franchise meaning no elections of any kind were held over there. The entire period had one group fighting the other and the office of the ministry in Azad Kashmir did little to stop the infighting but worked to pit one against the other. The People of azad Kashmir were not happy with these events and were extremely dissatisfied with the working of the government.
In 1960 where the presidential act of 1960 was enforced on 16th December 1960 and this act stated that votes of basic democrats were introduced and the azad jammu and Kashmir council was formed which had 24 members amongst which the Kashmiri refugees were to elect 12 of them. This was structured along the basic democracies ordinance of 1959 brought by ayub khan who was the president at that time and had removed both the government of Pakistan under iskander mirza and the government of Azad Kashmir under sardar Ibrahim. You can see once again the active role both political entities the locals and the refugees are playing. This was made to please both local and refugee factions who were in a power tussle. Ayub who was tired of old politicians and made it his slogan to bring in newer blood barred both sardar Ibrahim and ghulam abbas from contesting elections due to corruption charges.
Now the first ever elections came from basic democrats of 1200 from local and 1200 from refugee and they elected k.h khurshid who was also in good light with ayub. His administration greatly struggled with the opposition especially Chaudhry abbas and bureaucracy working within the AJK and the ministry of Kashmir affairs. During his administration a law was passed an act which stated that state council could not undertake any legislation without the previous consent of the chief advisor and no law could take effect unless the chief advisor directed so. This brought the situation back to square one as despite an election the powers of the state were still vested upon singular beings above question of the locals. Khurshid administration came under so much fire that he resigned but this fire was not just from the local population but also from the opposition efforts to displace him and the constant negative attitude of the bureaucracy. Agitation movements against ayub started all over AJK and Pakistan and open calls for singular governance structure for Pakistan and AJK became a frequent voice and the solution for the mess of Kashmir was sounded. The movements and the alliance of political parties all over Pakistan saw ayub hand power to yahya.
Yahya enacted the Azad Jammu and Kashmir government act of 1970 which had adult franchise vote based on one vote one per person and the promise for elections to be held. For the first time the members of the AJK legislative assembly and the president were to be elected through democratic election. The assembly would have 24 elected members and one female member. The president was the chief executive and all legislative powers were vested in the legislative assembly. On top of it all the AJK assembly had the power to make laws for all subjects of the territory and the president had the power to appoint the chief justice and judges of the high court of AJK. The powers of the chief advisor or the secretary were abolished and AJK found itself truly independent in its local decision making. The assembly could also remove the president with a 2/3rd majority resolution The matters conceded in the Karachi agreement remained with Pakistan but finally after great efforts a workable framework was formed between two governments which would satisfy the locals. It was under Yahiya that the state subject law of 1924 which barred non Kashmiris from obtaining citizenship of the state was made part of Pakistan and AJK. This act would remain in power for 4 years.
Legal question raised
Now the 1960 act has seen much debate as previous enactments were through local pathways of MC yet this was one which was brought to rise by ayub alone under whom the later elections happened for khurshid. Many highlight whether ayub as the president of Pakistan whose territorial limits were defined within its own constitution and legal framework could bring forth an ordinance upon a state that was completely part of Pakistan nor mentioned as a part anywhere. Many argue that Kashmir along with Pakistan was brought under a dictator who had illegally and unconstitutionally usurped power and thus his days of power and his elections are all illegal be they be in azad Kashmir or in Pakistan.
Changes in between 1960-1970
in 1964 the presidential act of 1960 was replaced by the 1964 act of government of azad jammu and Kashmir under which the state councilors were amended to the extent that eight state councilors were to be elected by democrats of AJK.
In 1965 under another provision 2 members were to be nominated by the president from the refugees settled in Pakistan. It also included the legislative act which saw the downfall of khurshid
In 1968 the Azad jammu and Kashmir government act of 1968 was enforced which had 8 councilors elected and 4 members nominated by the chief advisor from the refugees. The chief advisor occupied a pivotal role and the entire process was carried out by Pakistan.
The Azad Jammu and Kashmir Interim Constitution act 1974
The events of 1971 saw zulfiqar ali Bhutto become the martial law administrator and with it the framing of the 1973 constitution. Unlike the previous constitutions the 1973 constitution followed the parliamentary system with a bicameral legislature. For the first time since its inception Pakistan was going to work with a parliamentary setup. This has a profound effect on azad Kashmir which was, just like Pakistan, tired of single power entities and intertwined with Pakistan a wave of change grasped the land as people demanded for a similar constitution which will allow the people of azad Kashmir to elect their representatives who shall bring to power the executive and formulate the legislation that will be enforced within Azad Kashmir. We see that both azad Kashmir despite at times being independent from each other, are united in such a fashion that each happening in Pakistan effects Azad Kashmir. It is hardly surprising that nobody from both region can see each other apart from the other.
Zulfiqar ali Bhutto also (often stated to be stemmed from an understanding with Indira after the post war talks), wanted to find a solution to the Azad Kashmir conundrum. He even offered to make it a fifth province. He followed on accord with the local parties as well as his own political branch and worked to create the interim constitution of azad Kashmir. The thought process was to reduce the arbitrary power of the Kashmir ministry and create a more democratic link between the two governments. The draft constitution was introduced in the AJK assembly on 24th august 1974 and was approved by the government of Pakistan.
The following are some of the salient features of the constitution
1. Short constitution as it’s based on 59 articles.
2. Five schedules which are the following
(1) First deals with oaths of the president, prime minister, minister, speaker of the legislative assembly, member of the legislative assembly or council, chief justice of azad jammu and Kashmir, judge supreme court of AJK, oath of chief justice high court, judge of high court, advisor and auditor general. Apart from the judges and the auditor general all contain the religious oath and this line “that I will remain loyal to the country and to the cause of accession of the state of jammu and Kashmir to Pakistan”
(2) Second schedule deals with offices to be formed and in relation to 24,2,d.
(3) Third is the council legislative list in relation to article 31.2.a which is the following
a) Subject to the responsibilities of the Government of Pakistan under the UNCIP Resolutions, nationality, citizenship and [Nationalisation;] migration from or of into Azad Jammu and Kashmir, and admission into, and emigration and expulsion from, Azad Jammu and Kashmir, including in relation thereto the regulation of the movements in Azad Jammu and Kashmir of persons not domiciled in Azad Jammu and Kashmir.
b) Post and Telegraphs, including Telephones, Wireless, Broadcasting and other like forms of Communication; Post Office Saving Bank.
c) Public debt of the Council, including the borrowing of money on the security of the Council Consolidated Fund.
d) Council public services and Council Public Service Commission.
e) Council pensions, that is to say, pension’s payable by the council or out of the Council Consolidated Fund.
f) Administrative Courts for Council Subjects.
g) Council agencies and institutions for the following purpose, that is to say, for research, for professional or technical training, or for the promotion of special studies.
h) Nuclear energy, including-
a. Mineral resources necessary for the generation of nuclear energy;
b. the production of nuclear fuels and the generation and use of nuclear energy;
c. and ionising radiations.
i) Aircraft and air navigation; the provision of aerodromes; regulation and organisation of air traffic and of aerodrome.
j) Beacons and other provisions for safety of aircraft.
k) Carriage of Passengers and goods by air.
l) Copyright, inventions, designs, trade marks and merchandise marks.
m) Opium so far as regards sale for export.
n) Banking, that is to say, the co-ordination with the Government of Pakistan of the conduct of banking business.
o) The law of insurance and the regulation of the conduct of insurance business.
p) Stock-exchange and future markets with object and business not confined to Azad Jammu and Kashmir.
q) Corporations, that is to say, the incorporation regulation and winding up of trading corporations including banking insurance and financial corporation, but not including corporations owned or controlled by Azad Jammu and Kashmir and carrying on business only within Azad Jammu and Kashmir or, co-operative societies, and of corporations, whether trading or not, with object not confined to Azad Jammu and Kashmir, but not including Universities.
r) Planning for economic co-ordination, including planning and co-ordination of scientific and technological research.
s) Highways, continuing beyond the territory of Azad Jammu and Kashmir excluding roads declared by the Government of Pakistan to be strategic importance.
t) Council surveys including geological surveys and Council meteorological organizations.
u) Works, lands and buildings vested in, or in the possession of, the Council for the purposes of the Council (not being Military, Navel or air force works), but as regards property situate in Azad Jammu and Kashmir, subject always to law made by the Legislative Assembly, save in so far as law made by the Council otherwise provides.
w) Establishment of standards of weights and measures.
x) Extension of the powers and jurisdiction of members of a police force belonging to Azad Jammu and Kashmir or any Province of Pakistan to any area in such Province or Azad Jammu and Kashmir, but not so as to enable the police of Azad Jammu and Kashmir or such province to exercise powers and jurisdiction in such Province or Azad Jammu and Kashmir without the consent of the Government of that province or Azad Jammu and Kashmir; extension of the powers and jurisdiction of members of a police force belonging to Azad Jammu and Kashmir or a Province of Pakistan to railway areas outside Azad Jammu and Kashmir or that province.
y) Election to the Council.
z) The salaries, allowances and privileges of the members of the Council and [Advisors.]
bb) Mineral oil natural gas; liquids and substances declared by law made by the Council to be dangerously inflammable.
cc) Development of industries, where development under Council control is declared by law made by the Council to be expedient in the public interest.
dd) Removal of prisoners and accused persons from Azad Jammu and Kashmir to Pakistan or from Pakistan to Azad Jammu and Kashmir.
ee)Measures to combat certain offences committed in connection with matters concerning the Council and the Government and the establishment of a police force for that purpose [or the extension to Azad Jammu and Kashmir of the jurisdiction of a police force established in Pakistan for the investigation of offences committed in connection, with matters concerning the Government of Pakistan.]
ff) Prevention of the extension from Azad Jammu and Kashmir to Pakistan or from Pakistan to Azad Jammu and Kashmir of infections of contagious diseases or pests affecting men; animals or plants.
gg)Population planning and social welfare.
jj) Newspapers, books and printing presses.
ll) Curriculum, syllabus, planning, policy, centres of excellence and standards of education.
mm) Sanctioning of cinematography films for exhibition.
oo) Duties of customs, including export duties.
pp) Taxes on income other than agricultural income.
qq) Taxes on corporations.
rr) Taxes on the capital value of the assets, not including taxes on capital gains on immovable property.
ss) Taxes and duties on the production capacity of any plant, machinery, undertaking, establishment or installation in lieu of the taxes and duties specified in entries 42 and 43 or in lieu of either or both of them.
tt) Terminal taxes on goods or passengers carried by railways or air, taxes on their fares and freights.
uu) Fees in respect of any of the matters enumerated in this list, but not including fees taken in any Court.
vv)Jurisdiction and powers of all Courts with respect to any of the matters enumerated in this list.
ww) Offences against laws with respect to any of the matters enumerated in this list.
xx) Inquiries and statistics for the purpose of any of the matters enumerated in this list.
yy)Matters which under the Act are within the Legislative competence of the Council or relates to the Council.
zz) Resettlement and Rehabilitation of Jammu and Kashmir state refugees in Pakistan.
aaa) Matters incidental or ancillary to any of the matters enumerated in this list.
(4) Fourth deals with salary, privileges, allowances, salary of the chief justice of Supreme Court which is to be the same as the one in Pakistan.
(5) Fifth deals with salary, privileges, allowances, salary of the chief justice of High Court which is to be the same as the one in Pakistan
3. Islam to be state religion
4. Definition of muslim as defined in article 2 section 1.
5. A total definition that one who does not believe absolutely in the finality of the prophet is not a muslim. Article 2 section 3.
6. Fundamental rights have been allotted where most are same as Pakistan’s constitution however two interesting are these
a) Freedom of association. –
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.
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
b) Abolition of untouchability. - Untouchability is abolished, and its practice in any form is forbidden and shall be declared by law to be an offence
7. President to be elected by the council, the assembly and the federal minister of the council secretariat as defined as joint sitting through the process as mentioned in article 5.
8. Two legislatures. Now this is a very interesting aspect when I read the constitution. There are basically two authorities that hold legislative powers and they are defined but before I touch this allow me to write article 21 to explain the AJK council.
a) Azad Jammu and Kashmir Council.-
(1) There shall be an Azad Jammu and Kashmir
Council consisting of-
(a) the Prime Minister of Pakistan;
(b) the President;
(c) five members to be nominated by the Prime Minister of Pakistan from time to time amongst Federal Minister and members of Parliament ;
(d) The Prime Minister of Azad Jammu and Kashmir or a person nominated by him; and
(e) six members to be elected by the Assembly from amongst State Subjects in accordance with the system of proportional representation by means of the single transferable Vote.
(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.]
So basically counting the council will be composed of 6 members from the Pakistan state, 7 from the azad Kashmir. Now this is one of the legislatures. The Second legislature is the legislative assembly which is covered in article 22 which states its durations with article 23-30 dealing with quorums, qualifications, dissolution, time periods, oaths e.t.c. the legislative assembly is composed of 49 members. 41 elected, 5 special seat women, one technocrat, one ulema and one from the indian held Kashmir resident abroad. These 8 will be elected by the 41 elected through adult franchise. Now this was also amended in june 2018 which I will talk later on but mention that the members are now 53 and the structure has undergone some change.
Now many might point out that Pakistan also has two legislatures and is bicameral with the upper house aka senate and lower house aka national assembly but the legislative process in Pakistan is that any bill be it presented at senate or at national must be voted at the other house but the Kashmiri bicameral is different. It is more independent and for that we will read article 31, 33, 35, 36.
1. Article 31 Legislative Power. - (1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws- (a) for the territories of Azad Jammu and Kashmir;
(b) for all State Subjects wherever they may be; and
(c) for the officers of the Council or as the case may be, the Government, wherever they may be.
Subject to sub-section (3), ---
(a) the Council shall have exclusive power to make laws with respect to any matter in the Council Legislative List set out in the Third Schedule, hereinafter referred to as the Council Legislative list; and
(b) the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative list.
Neither the Council nor the Assembly shall have the power to make any law
(a) the responsibilities of the Government of Pakistan under the UNCIP Resolutions;
(b) the defence and security of Azad Jammu and Kashmir;
(c) the current coin or the issue of the bills, notes or other paper currency; or
(d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid.
(4) No tax shall be levied for the purposes of the territories of Azad Jammu and Kashmir except by or under the authority of an Act of the Council or the Assembly.
No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah.
2. Article 33 Amendment of this Act. – [(1) The provisions of this Act may be amended in accordance with the following provisions:
Provided that no amendment shall be made in Section 31, this Section or Section 56 saves with the prior approval of the Government of Pakistan.]
(2) A Bill to amend this Act may originate either in the Council or in the Assembly.
Within fourteen days of the day on which a Bill to amend this Act is introduced in the Council or the Assembly, the President shall summon a joint sitting and if the Bill is passed in the joint sitting, [……] with or without amendment, by the votes of the majority 67[of the total membership of the joint sitting], the Bill shall be presented to the President for assent
3. Article 35 Authentication of Bills passed by the Council.- A Bill passed by the Council shall not require the assent of the President and shall, upon its authentication by the Chairman of the Council, become law and be called an Act of the Council
4. Article 36 President’s assent to Bills.-(1) Subject to this Act, when a Bill has been passed by the Assembly or a joint sitting, it shall be presented to the President for assent
Now setting aside the powers conceded to the state of Pakistan in the Karachi agreement as mentioned in article 31 which highlights that neither the assembly nor the council can make those laws. Now looking at article 31 subsection 3 a it clearly states that the third schedule I mentioned above entirely all matters mentioned in it, laws concerning those matters can only be made by the council not the legislative. The word exclusive is used here to highlight this sole power whereas any matter not mentioned in the legislative list, any law upon that matter not mentioned can be made by the legislative assembly. Now unlike the bicameral system used in Pakistan these two are independent legislatures meaning that any law being passed by the council does not require the assent of the legislative assembly nor any law passed by the legislative assembly requires the assent of the council. It highlights the separation of the legislatures yet there is their joint form as well which we witness in the president election as well as in the amendment of the constitution which is article 33. It states that only an amendment passed by the joint sitting. It may originate in any legislature true but must require majority vote in that joint sitting which will be dominated by the Kashmiri representatives… There is a bar that no amendment can pass in the legislative power that will effect article 31, 33 and 56. Article 56 is basically the following
Article 56 Act not to derogate from responsibilities of Pakistan.- Nothing in this Act shall derogate from the responsibilities of the Government of Pakistan in relation to the [matters specified in sub-section (3) of section 31] or prevent the Government of Pakistan from taking such action as it may consider necessary or expedient for the effective discharge of those responsibilities.
We also come to see that the bills passed by the council require not the president’s assent but the council chairman who is the prime minister of Pakistan whereas the legislative bills require the assent of the President. Thus the independence of the two legislatures.
9. Easy to amend. Flexible constitution. Pakistan constitution is an inflexible constitution meaning it’s hard to amend as the bill must pass 2/3rd majority in the senate and the national however in the AJK constitution an amendment needs simple majority of the joint sitting and it will pass.
10. Judicial provisions from 42-47 which highlight two major courts. The Supreme Court and the high court. Both seats are at muzzafarabad.
11. Section 57 which is an interesting read. The Pakistani constitution has judicial review which and article 239 section 5 which stated that no amendment of bill passed by the parliament can under judicial review which was brought during Zia era and was set aside afterwards most famously in PLD SC 401 2015. Section 57 is the same thing. It bars judicial ability to repeal amendments or even this act passed by the legislature and this was part of the act and had insertion of the words supreme court and amendment in it in 1975 when Pakistan and Kashmir were under civilian government. Allow me to reproduce the act
Article 57 Act to over-ride other laws, etc.-(1) The Provision of this Act shall over-ride and have effect notwithstanding the provisions of any law for the time being in force.
(2) No Court, including the [Supreme Court of Azad Jammu and Kashmir] and the High Court, shall call into question or permit to be called into question, the validity of this Act 123[or an Act to amend it.]
12. The major feature is also that there is no interim government between elections like the Pakistani system of elections which has an interim government. Like the indian system the AJK prime minister continues the till the coming to the office of the newly elected prime minister which is mentioned in article 15.
Prime Minister continuing in office.- (1) The Prime Minister shall continue to hold office until his successor enters upon the office of the Prime Minister.
(3) Nothing in Section 13 or Section 14 shall be construed to disqualify the Prime Minister or a Minister continuing in office during the period the Assembly stands dissolved
Now above are the features of the constitution as well as the major portions of the constitution. By reading we come to understand the governance system of the Azad Kashmir. We have come to understand that ascension to Pakistan is a major portion of the constitution and the area is intertwined with Pakistan whilst it does have power and say at all positions the council also has representations from the Pakistan government and Pakistan exercises its authority in the federal form as it does with other provinces within the federation but also is vested with powers upon matters so provided within the constitution as representation within the council.
By reading the constitution we come to also understand that despite the Supreme Court and president and a flag Azad Kashmir is very much a part of the federation of Pakistan which is blessed with autonomy. Now this was fine till 2010 when the assembly of Pakistan passed the 18th amendment which gave huge powers to the provinces.. Previously the central was very powerful and most of the time between the period of 1974 and 2010 it was ruled by two very powerful military generals’ general zia ul haq and general Pervez Musharraf. The central power was extremely dominant and considering the relationship of azad Kashmir and Pakistan and the relationship of Pakistan and its provinces the act was considered fine but that changed drastically by the 18th amendment which devolved massive powers from the central to the provincial and this brought arguments about the effectiveness of the 18th amendment on azad Kashmir and many in Kashmir demanded their own form of 18th amendment which should take massive powers from the council and the federal and devolve it to the legislative and like we had our own 18th amendment they had their amendment called the 13th amendment act which I will highlight in the amendments below and I will highlight the differences..
Before I touch upon the amendment I want to look into the UNCIP on local governance and on the case laws of the AJK courts.
The Azad Jammu and Kashmir Local authority and UNCIP
UNCIP is basically and abbreviation for the “UNITED NATIONS COMMISSION FOR INDIA AND PAKISTAN” and it is responsible for issue. Now there is little on local authority mandated by the UN and the UN did not delve into any organized system to be in place till the plebiscite. Infact it’s a massive irresponsibility displayed as it considers the area disputed and calls for self-determination based on referendum yet made absolutely no effort to highlight or specify what form of governance should be placed in both kashmirs. It continuously states that Kashmiri choice should be respected through referendum but never laid out the exact pattern as to what form of authority should be in place to govern the area till the solution of Kashmir is presented. It didn’t in 1949 nor in 2019. Now all one can find is the mention of the ‘local authority’ which is stated as “Pending a final solution, the territory evacuated by the Pakistani troops will be administered by the local authorities under the surveillance of the commission..” On September 2 1948 josef korbel stated “by Local authority we mean the Azad Kashmiri people”
The relationship between Azad Jammu and Kashmir Laws and the precedents so passed by courts.
As we have seen above that the azad Kashmir has a complicated relationship with Pakistan from the start as the disputed nature of the area often tied Pakistan’s hand in its governance structure. The constitution itself is a mixture of autonomy granted and status of being part of the federation yet the Pakistani constitution is very silent on it. The azad Kashmir constitution is very detailed about it yet the Pakistani constitution simply has one article. Now before we enter into the precedents I will mention a few laws of the azad Kashmir region.
Azad Kashmir like Pakistan and india kept many laws that were enforced in the region or in relation to the region as well as within the british raj. I mentioned one above of the citizenship of 1924.
Criminal code is governed by the Azad Kashmir Penal Code aka APC. It is basically the same as the penal code of 1860 governed in Pakistan and India but any criminal activity in azad Kashmir is not written as Pakistan Penal Code aka PPC but as Azad Kashmir Penal Code aka APC and the legislature can make changes in it as it sees fit as long as they are not against fundamental rights or against injunctions of islam. Now this highlights the separate nature and autonomous nature of azad Kashmir.
Now in 1949 a Law was passed called the azad jammu and Kashmir courts and law code 1949 which was basically meant to highlight the enforcement of laws and the court structure within Azad Kashmir. Now it is a 60 section act but it structures the legal system of azad Kashmir and validates several laws. It also highlights the language of courts. Some of them were
· Suits valuation act
· Court fees act
· Limitation act
· All acts passed shall be deemed valid which are not inconsistent with the provisions of the act within the dogra regime.
· Hindu laws for hindus and Islamic laws for muslims and dictates of equity and justice
· The azad jammu and Kashmir Family courts act 1993.
As you have noticed the legal system though similar to Pakistan yet is a separate legal system. The question then comes is whether such legal separation exists within the hierarchy of courts. Can a precedent set by the supreme court of Pakistan be enforced in the lower of courts of azad Kashmir or vice versa? Can decrees be execute? Can an order be implemented? For this we will look into some citations which have highlighted these questions. Now citations for reference and citations as binding principle are two different things for example citations to make a point are used dating back to 1937 and sometimes of what the indian or us court did but as founded in the Pakistan supreme court case that indian citations are not binding upon Pakistani courts as they are judgments of a foreign court.
1986 C L C 1309
[Azad J a LK]
Before Sardar Muhammad Ashraf Khan and Muhammad Akram Khan, JJ Mian NAZIR AHMAD--Appellant
ABDUR RASHID QURESHI--Respondent
Ss. 2(6) & 46--Foreign judgment--Execution of--Precept issued by a foreign Court, held, would not be executable in native country-Judgment and decree upon which precept proceeded being judgment and decree of Court situate in Pakistan, could not be executable in Azad Jammu and Kashmir--Judgment of a Court of Pakistan, however, being foreign judgment would be conclusive as to any matter thereby directly adjudicated between parties in view of provisions of S.13, Civil Procedure Code, 1908--Remedy available to such decree-holder would be to institute suit on basis of such foreign judgment and obtain decree from a Court of
Azad Jammu and Kashmir against judgment debtor--Judgment of Court of Pakistan would provide only valid cause of action and foundation, for suit upon it in a competent Court of Azad Kashmir, if same was conclusive, final, and not hit by any of exception specified in S. 13, Civil Procedure Code, 1908--P L D 1976
Now the case was that the subjudge of mirpur attached a property acting upon the percepts provided to him by the court of civil judge of Jhelum to attach the property of the appellate.
2. Briefly stated that giving rise to the filing of this appeal are that Abdur Rashid, respondent obtained an ex parte decree for payment of Rs.25,000 against the appellant on 18-12-1982. On being moved by the decree-holder, the Court passing the decree issued a precept under section 46, C.P.C. and sent the same to the Court of Sub-Judge, Mirpur for attachment of the property specified therein owned and possessed by the appellant within its territorial jurisdiction. On receipt of the said precept, Sub-Judge Mirpur after hearing the learned counsel for the parties issued the warrant for attachment of the aforesaid property, vide his order, dated 20-8-1984. Feeling aggrieved by the above order for the attachment of his property, the appellant has filed this appeal.
3. We have heard the learned counsel for the parties and have also gone through the record of the case.
4. The learned counsel for the respondent raised two preliminary objections out of which first being that the appeal against the impugned order is not maintainable as the same is not made in proceedings for the execution of the decree but only in pursuance of the precept issued by the competent Court under section 46, C.P.C. In other words, his contention is that an order made in the proceedings in respect of execution of decree is appealable and not the one made in execution of precept received under section 46, C.P.C. His second preliminary objection is that there is no provision in law under which objections to the execution of the precept can be raised and that such an objection is at the most competent before the Court issuing the precept and not before the Court to whom it is sent for execution.
5. We have given our due consideration to the above preliminary objections but no substance in them in the given circumstances of the case. The order of the Sub-Judge, Mirpur under appeal has been challenged on the ground that he had no jurisdiction to entertain the precept incompetently issued and execute the same by issuing a warrant of attachment for the property of the appellant mentioned in it. Thus, if the Court of Sub-Judge, Mirpur was not competent to execute the precept then his order under appeal being void ab initio having been passed without jurisdiction is liable to be set aside by the Court, exercising appellate jurisdiction over it. Even if, it is assumed that the impugned order is not appealable, this Court in exercise of its revisional jurisdiction can examine its legality or otherwise and can set it aside, in case, it is found to be unlawful and passed without) jurisdiction. 6. Similarly the second preliminary objection regarding the nonexistence of any provision of law enabling the appellant to raise objections to the precept issued under section 46, C.P.C. before the Court of Sub-Judge, Mirpur, is not relevant and substantial because the objection as to the lack of jurisdiction of the Court to obey and execute the precept sent to it under section 46, C . P. C . by the person likely to be adversely affected by such an execution is not prohibited by any provision of law and such a legal objection can always be taken before such Court who is bound to decide it in the first instance. The right to challenge the competency of a Court of law to pass an order to the detriment of a person is a right which does not require any enabling provision of law but rather is inherent right vested in such a person.
7. In the above view of the matter, the appellant had every right to raise objection as to the competency of the Sub-Judge, Mirpur to order the attachment of his property, in pursuance to the precept and such an objection can also be taken before this Court as a ground for declaring the impugned order having been passed without jurisdiction and consequently unlawful. For the above reasons, both the above preliminary objections of the respondent are repelled.
8. On merits, the learned counsel for the appellant has contended that the decree passed by the civil Court at Jhelum in Pakistan on the basis of which precept was issued to the Sub-Judge, Mirpur for execution is a decree of foreign Court which could not be executed in Azad Kashmir with the result that the Court of Sub-Judge, Mirpur was not competent to make the order of attachment of the property belonging to the appellant by way of execution of the said precept and as such the order impugned in the appeal is void and unlawful. In support of his above contention, he has referred to A I R 1925 Mad. 1100 wherein it has been held that the precept issued under section 46, C . P . C . cannot be executed by the foreign Courts and its issuance for execution is- restricted to a Court situated in India only. In this connection he has also made a reference to P L D 1966 S C 88 wherein it was held that Azad Kashmir is not a part of Pakistan but is a foreign country so for Pakistan is concerned.
9. The learned counsel for the respondent, on the other hand, has contended that the precept issued by the Court in Pakistan is executable by the Courts in Azad Kashmir under section 43, C.P.C. as applicable in Azad Kashmir and that even otherwise the superior. Courts of Azad Kashmir have held that a decree passed by a Court in Pakistan can be executed in Azad Kashmir. In support of his above contention he has cited P L D 1976 Azad J & K 9, P L D 1954 Azad J & K 1 and P L D 1973 Azad J & K 51. He thus contended that the precept under discussion could be issued and sent to the Sub-Judge, Mirpur for execution in view of the provisions of section 46, C . P. C . because the Court competent to execute a decree is also competent to execute the precept.
10. After giving our due consideration to the arguments addressed at the bar, we are of the opinion, that 'the provisions of section 46, C .P. C . did not empower a civil Court situate at Jhelum in Pakistan to issue a precept to the civil Court of Mirpur in Azad Kashmir for attachment of .the property of the appellant situated within its jurisdiction. Consequently, the Sub-Judge, Mirpur had no jurisdiction to order the attachment of the said property in execution of the precept. The judgment and decree upon which the precept proceeded was a judgment and decree of a foreign Court which could not be executed in Azad Kashmir with the result that since the Court of Sub-Judge, Mirpur was not competent to execute the said decree he also lacked the jurisdiction and power to execute the precept because under section 46, C . P. C . the Court passing the decree is only empowered to issue a precept to any other Court which is competent to execute such a decree which is the foundation of such a precept. The foreign judgment has been defined in section 2(6) of the C.P.C. as the judgment of the foreign Court and the foreign Court according to the definition contained in section 2(5) of the C.P.C. means a Court situate outside Azad Kashmir and not established or continued by the authority of the Azad Jammu and Kashmir Government. In view of the above definition of 'foreign judgment' and 'foreign Court' the Courts in Pakistan are all foreign Courts so for as the Azad Kashmir is concerned and the judgments passed by them are foreign judgments. This has already been held in number of cases by the superior Courts of Azad Kashmir out of which P L D 1954 Azad J & K 1 and P L D 1976 Azad J & K 9 may be referred to. The decree passed on the basis of such judgment is not executable in Azad Kashmir as there is no provision in the Civil Procedure Code under which the decree of the foreign Court can be executed in Azad Kashmir.
11. However, the judgment of the Court in Pakistan being a foreign judgment shall be conclusive as to any matter thereby directly adjudicated between the parties or party under whom they or any of them claimed litigation under the same title in view of the provisions of section 13 of the C.P.C. subject, of course, to the exceptions enumerated in the said section itself. This being the legal position, the judgment and decree obtained by a person in Pakistan is not enforceable in Azad Kashmir and the only remedy available to such a decree-holder is that he may institute a suit on the basis of such foreign judgment and obtain a decree from the Court of Azad Kashmir against the judgment-debtor. Thus, the judgment of the Court in Pakistan provides only a valid cause of action and foundation for a suit upon it in a competent Court of Azad Kashmir, if it is conclusive and final and it is not hit by any of the exceptions specified in section 13 of the Civil Procedure Code.
12. The contention of the learned counsel for the respondent that the decree passed by the Court of Pakistan can be executed in Azad Kashmir under section 43, C.P.C., has no substance in it as the said section does not cover a decree of the Court in Pakistan. It appears appropriate here to reproduce section 43, C.P.C. as was in force in West Punjab which was adopted in Azad Kashmir in the year 1948. It reads as follows:---
"43. Any decree passed by any civil Court established in any part of India to which the provisions of this Code do not extend or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends."
13. From the bare reading of the above section, it becomes quite clear that the civil Courts in Azad Kashmir are not empowered to execute a decree passed by any civil Court of Pakistan. In section 13 of the C . P. C . as applicable in Azad Kashmir the word 'Pakistan' shall be substituted by the word 'Azad Kashmir' and the word 'Central Government' shall refer to 'Government of Azad Jammu and Kashmir' and thus under this section any decree passed by any civil Court established in any part of Azad Kashmir to which the provisions of the C.P.C. of Azad Kashmir do not extend or by any Court established or continued by the authority of the Government of Azad Jammu and Kashmir outside Azad Kashmir may be executed within jurisdiction of any Court in Azad Kashmir to which the C.P.C. is applicable. It needs hardly any mention that the Courts in Pakistan are not established or continued by the authority of the Government of Azad Kashmir and as such the decrees passed by their civil Courts do not fall within the; ambit of this section and as such are not executable by the Courts of Azad Kashmir. Even if, assuming for the sake of arguments but not conceding that a decree of the foreign Court can be executed in Azad Kashmir still the present decree is unenforceable in Azad Kashmir because the same has not been passed on merits but is an ex parte one. Under section 13, C.P.C., a foreign judgment is conclusive only if the same has been given on the merits of the case but from the copies of the judgment and decree received alongwith the precept by the Court of Sub-Judge, Mirpur, it appears that the judgment and decree against the appellant was passed ex parte which cannot be executed by the Courts of Azad Kashmir. A decree in a personal action announced by a foreign Court in absentia against the residence of Azad Kashmir who did not submit to its jurisdiction is a nullity in law under the private International Law and obviously such a decree being null and void is not executable in Azad Kashmir. In this view of the matter, also the decree in question is not enforceable in Azad Kashmir and thus the precept issued on its basis to the civil Court of Mirpur in Azad Kashmir could be obeyed and executed and by doing so, by way of passing impugned order, the Sub-Judge, Mirpur has acted illegally and without jurisdiction.
14. We have gone through the judgments of this Court cited by the learned counsel for the respondent iii support of his contention that the decrees of the Courts of Pakistan are executable in Azad Kashmir but in them it is not held so except in one reported as P L D 1976 Azad J & K 9 in which the Single Bench comprising the then learned Chief Justice has pronounced that although the judgments of the Pakistan Courts are the foreign judgments, yet they can be executed in Azad Kashmir.
15. After giving our due consideration to the question as to whether or not the judgments passed by the Courts of Pakistan are executable in Azad Kashmir in the light of the relevant law and reasoning given in support of the view in the above judgment, we may say with utmost respect that we could not persuade ourselves to agree with the said view. 'The grounds advanced by the learned Judge in support of his view were that section 44 of the C.P.C., 1977 Bk. as was in force in Jammu and Kashmir State in Dogra Regime empowered his Highness, the Maharaja of the State of Jammu and Kashmir to declare in notification in the Government Gazette the decrees of any Civil or Revenue Court situate in British India may be executed in the State as if they had been passed by the Court of the State and that the notification to that effect was issued by the Government of which judicial notice has been taken in a Full Bench case reported as P L D 1954 Azad J & K 1 and that the said notification is still in force as between Azad Jammu and Kashmir on the one hand and Pakistan on the other in view of the ruling given in P L D 1973 Azad J & K 51 laying down that under the standstill agreement entered into between the Maharaja's Government and the Pakistan Government on 12-8-1947, all arrangements that previously existed between the Maharaja's Government and British India were still in force as between the Azad Jammu and Kashmir Government and Pakistan because the Azad Jammu and Kashmir Government is the successor of Maharaja's Government it has been held in P L D 1970 Azad J & K 88.
16. As said earlier, we are unable to subscribe to the view as well as to the reasoning given in support of the same by the learned Judge who gave the said judgment, for the following reasons:
Even if the judicial notice is taken as has been done in P L D 1954 Azad J & K 1 as well as in a case under consideration i.e. PLD 1976 Azad J & K 9, that the Maharaja's Government had issued a notification under section 44 of the C.P.C. empowering the Courts of Azad Kashmir to execute the decrees passed by the Courts of British India as if they had been passed by the Courts of the State, still the said Notification cannot be held to be in force in Azad Jammu and Kashmir territory after coming into being the two separate dominions of Pakistan and India and the State of Jammu and Kashmir. The C.P.C in force in the State of Jammu and Kashmir prior to the establishment of the State of Jammu and Kashmir, ceased to be applicable in Azad Kashmir at least since the year 1948, if not earlier, when the C.P.C as in force in West Punjab in Pakistan was adapted in Azad Kashmir. On the adaptation of the said C.P.C. in Azad Kashmir, the Notification, issued under it also came to an end and did not remain in force in Azad Kashmir. In P L D 1976 Azad J & K 9, the Notification under this section was held to be still in force in Azad Kashmir on the ground that under the stand-still Agreement entered into between the Maharaja's Government of the former State of Jammu and Kashmir and the Pakistan Government on 12-8-1947, all the arrangements previously existing between the Maharaja's Government and British India were continued and as such the Notification issued under section 44, C.P.C., also remained in force in Azad Kashmir for the reason that the Azad Kashmir Government is the successor of Maharaja's Government. First of all, the Stand-still Agreement referred to in the above judgments has neither been produced before us nor we have been able to lay our hands on such an agreement of which judicial notice could be taken. We do find it mentioned and reproduced in the form of telegrams exchanged between the Maharaja's Government and the Government of Pakistan in a judgment reported as P L D 1973 Azad J & K 51 which has been written by the same learned Judge who held in a judgment reported in P L D 1976 Azad J & K 9 that decrees of Pakistan Courts are executable in Azad Kashmir. These telegrams are reproduced below:--- "Telegram of the Prime Minister of Kashmir addressed to the State's Relations Department, Government of Pakistan, 12th August, 1947:
'Jammu and Kashmir Government would welcome Stand-still Agreement with Pakistan on all matters on which these exist at present moment with outgoing British India Government. It is suggested that existing arrangements should continue pending settlement of details and formal execution of fresh agreements'. Telegram of the Foreign Secretary, Government of Pakistan, addressed to the Prime Minister of Kashmir, 15th August, 1947:
"Your telegram of the 12th. The Government of Pakistan agree to have a Stand-still Agreement with the Government of Jammu and Kashmir for the continuance of the existing arrangements pending settlement of details and formal execution of fresh agreements."
17. As would appear from the perusal of the judgment in which the above telegrams are reproduced, the copies of these telegrams were provided to the learned Judge by the then Director-General, Foreign Office, Islamabad in connection with the writing of a Book on Kashmir by him. Legally, these copies furnished privately to an author of a Book on Kashmir in a private capacity by some officer of the foreign office of Pakistan Government carry with it no authenticity and as such judicial notice cannot be taken of them. Even otherwise, the agreement arrived at on the exchange of these telegrams between the Mahraja's Government and the Government of Pakistan was for the continuance of arrangements on matters which existed at the moment between the outgoing British India Government and the Government of former State of Jammu and Kashmir. But the Notification issued under section 44, C . P. C .. by the Government of the said State cannot, by any stretch of imagination, be construed as an arrangement between the Government of the said State of Jammu and Kashmir and the British India Government as referred to in the Stand-still Agreement. The decrees passed by the Courts of British India were made executable in the territory of the State of Jammu and Kashmir by a legislation enacted in the form of section 44, C.P.C. and the Notification issued thereunder and not by any executive or administrative arrangement.
18. Apart from the above legal position, it could not be said that any arrangement with regard to the execution of decrees passed by the British India Courts in the former State of Jammu and Kashmir existed between the British India Government and the Government of and Kashmir State on the date of Stand-still Agreement in discussion because by section 7 of the Indian Independence Act, all the treaties and agreements in force at the date of passing of the said Act between His Majesty and the Rulers of the Indian State lapsed and came to an end except those relating to custom, transit, communication, posts and telegraphs and other like matters. Thus, even if, the law conferring powers on the Courts of the former State of Jammu and Kashmir to execute the decrees of the British Indian Courts are considered to be an arrangement between the British Indian Government/ and the Government of the State of Jammu and Kashmir, the same had already come to an end on the date the Stand-still Agreement in question was concluded between the former Jammu and Kashmir State and the Pakistan Government in view of section 7 of the Indian Independence Act. However, at least from the date of coming into being the constitution of Azad Kashmir, it cannot be said that Azad Kashmir Government is the successor of the former State of Jammu and Kashmir and as such it is bound to honour the agreement entered into by the Mehraja's Government with any foreign Government. The Laws for the Azad Kashmir are enacted by Azad Jammu and Kashmir Legislative Assembly created first under the Azad Jammu and Kashmir Interim Constitution Act, 1970 and after its repeal under Azad Jammu and Kashmir Interim Constitution Act, 1974 with the result that any matter covered by the agreement between the former State of Jammu and Kashmir and Pakistan Government is now to be governed by law in force in Azad Kashmir and any such agreement would be deemed to have lapsed and become rendered redundant.
19. For all the above reasons, we overrule the ruling of the Single Judge announced in P L D 1976 Azad J & K 9 wherein it was held that the decrees passed by the Courts of Pakistan are executable in the territory of Azad Kashmir. 20. The net result of the above discussion is that the decrees of the Courts of Pakistan cannot be executed by the Courts of Azad Kashmir and as such any precept issued on the basis of such decree by a Court in Pakistan for execution cannot be executed in Azad Kashmir for the simple reason that the precept can only be executed by a Court which is competent to execute a decree. Therefore, accepting this appeal, the order of the Sub-Judge, Mirpur dated 20-8-1984 whereby he, in execution of the precept issued by the civil Court, Jhelum, issued the warrant of attachment of the property belonging to the appellant, is set aside on the ground of having been passed without jurisdiction and lawful authority. In the circumstances of the case, the parties shall bear their own costs.
The appeal was accepted and the judgment highlighted several points. It highlighted the fact that Pakistan being a foreign country thus its courts are all foreign for Azad Kashmir and thus any decision by any foreign court is not executable within azad Kashmir and it even highlighted a Pakistan judgment of PLD SC88 that azad Kashmir was not part of the Pakistani federation and thus its laws are not applicable over there. The court utilized the definition of foreign court in CPC and how Azad Kashmir is different from the dogra regime and it looked into its own constitution as well as the legal limits of the laws of azad Kashmir and laws of Pakistan. This was against highlighted November 2018 when an intra-court appeal against a single bench order which stated that the Islamabad high court was the correct forum for an appeal concerning an appointment by the Kashmir council chairman however this was set aside where it was stated that according to Azad Kashmir interim act of 1974, IHC or any other court of Pakistan does not have the authority to listen to any appeal against the decision of the Kashmir council chairman and only the azad Kashmir high court is competent to hear such cases.
We see that laws passed by Pakistani parliament do not hold enforcement within Azad Kashmir and vice versa and it was due to this fact the 18th amendment, which was bound to the territorial limits of the federation of Pakistan as mentioned in the constitution, which empowered the provinces was not enforceable within Azad Kashmir and once the region that held more autonomy than other provinces had lesser autonomy and this was seen by constant demand of the people of AJK to empower them with greater autonomy.
This cry was answered on 2nd June 2018 when the azad Kashmir assembly passed the 13th amendment which was touted as its own 18th amendment and it was a large amendment which I will reproduce entirely here.
The thirteenth amendment.
As I mentioned above that the 18th amendment triggered a serious debate for decentralization and a relief from the powerful Kashmir council. The prime minister of azad Kashmir raja Farooq haider played a vital role as he focused on the passage of such bill which would allow decentralization. The opposition parties were not cooperative especially the PPP chapter and boycotted the voting and the bureaucracy was more unwilling to lose power. The N govt supported the amendment and upon the wee hours attained the approval for decentralization of the region and the federal cabinet gave its nod for the bill and with it the thirteenth amendment was placed and passed within the legislative assembly. It is the following
ACT further to amend the Azad Jammu and Kashmir Interim
Constitution Act, 1974 WHEREAS it is expedient further to amend the Azad
Jammu and Kashmir Interim Constitution Act, 1974 (VIII of 1974), for the purposes hereinafter appearing;
It is hereby enacted as follows:-
1. Short title and commencement.- (1) This Act may be called the Azad Jammu and Kashmir Interim Constitution (Thirteenth Amendment) Act, 2018.
2. (2) It shall come into force at once.
3. Amendment in the Preamble of the Azad Jammu and Kashmir Interim Constitution Act, 1974.- In the Azad Jammu and Kashmir Interim Constitution Act, 1974 (VIII of 1974), hereinafter referred to as the Constitution, in the Preamble, between third and fourth paragraphs, the following new paragraphs shall be inserted:-
“AND WHEREAS the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;
AND WHEREAS, it is necessary to cause further empowerment of the Legislative Assembly of Azad Jammu and Kashmir and Azad Government of the State of Jammu and Kashmir as being chosen representative of the people of Azad Jammu and Kashmir to exhaustively exercise their legislative powers and executive authority, as the case may be, for the better governance, socio-economic development and in particular for general welfare of people of Azad Jammu and Kashmir in the sustained manner and other matters ancillary thereto beside pursuing and fostering our cause of securing self-determination under the UN Charter and according to the UNCIP Resolutions through the democratic method of free and fair plebiscite under the auspices of the United Nations;”
3. General amendment in the Constitution.- In the
(i) for the words “this Act” wherever occurring, the words “the Constitution” shall be substituted and referred as such;
(ii) for the words “Section” and “sub-section”, wherever occurring, the words “Article” and “sub-Article” shall be substituted and referred as such respectively.
4. Amendment of Article 1 of the Constitution.- In the
Constitution, sub-Article (1) of Article 1 shall be substituted as under,-
“(1) This Constitution shall henceforth be known as the Azad Jammu and Kashmir Interim Constitution, 1974.”
5. Amendment of Article 2 of the Constitution.- In the
Constitution, in Article 2, in sub-Article (1),-
(i) the definition of term ‘Joint Sitting’ shall be omitted;
(ii) in the definition of term ‘Judge’, between the words “an” and “additional”, the words “ad-hoc Judge of the Supreme Court and” shall be inserted.
(iii) in the definition of term ‘Service of Azad Jammu and
Kashmir’ the words “or Advisor appointed under Article 21” shall be omitted.
(iv) for sub-Article (2), the following shall be substituted:-
“(2) In the Constitution, Act of the Assembly, shall include an Ordinance promulgated under sub-Article
(1) of Article 41.”
6. Addition of new Article 3-A to 3-J of the Constitution.- In the Constitution, after Article 3, the following new Article 3-A, 3-B, 3-C, 3-D, 3-E, 3-F, 3-G, 3-H, 3-I, and 3-J shall be added, namely.-
“3-A. Principles of Policy.- (1) The Principles set out in Article 3-A, 3-B, 3-C, 3-D, 3-E, 3-F, 3-G, 3-H, 3-I and 3-J shall be known as the Principles of Policy, and it is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or authority of the State, to act in accordance with these Principles in so far as they relate to the functions of the organ or authority.
(2) In so far as the observance of any particular Principle of Policy may be dependent upon resources being available for the purpose, the Principle shall be regarded as being subject to the availability of resources.
(3) In respect of each year, the President shall cause to be prepared and laid before the Assembly, a report on the observance and implementation of the Principles of Policy and provision shall be made in the rules of procedure of the Assembly for discussion on such report.
3-B. Responsibility with respect to Principles of Policy.- (1) The responsibility of deciding whether any action of an organ or authority of the State, or of a person performing functions on behalf of an organ or authority of the State, is in accordance with the Principles of Policy is that of the organ or authority of the State, or of the person, concerned.
(2) The validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the Principles of Policy, and no action shall lie against the State or any organ or authority of the State or any person on such ground.
3-C. Islamic way of life.- (1) Steps shall be taken to enable the Muslim State Subjects, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.
(2) The state shall endeavor, as respects the Muslims of State:-
(a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and
exact printing and publishing of the Holy Quran;
(b) to promote unity and the observance of the Islamic moral standards; and
(c ) to secure the proper organization of zakat, usher, auqaf and mosques.
3-D. Promotion of local Government institutions.- The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women.
3-E. Parochial and other similar prejudices to be discouraged.- The State shall discourage parochial, racial, tribal and sectarian prejudices among the State Subjects.
3-F. Full participation of women in life.- Steps shall be taken to ensure full participation of women in all spheres of life.
3-G. Protection of family, etc.- The State shall protect the marriage, the family, the mother and the child.
3-H. Protection of minorities.- The State shall safeguard the legitimate rights and interests of minorities including their due representation in the Service of Azad Jammu and Kashmir.
3-I. Promotion of social justice and eradication of
social evils.- The State shall,-
(a) promote, with special care, the educational and economic interests of backward classes or areas;
(b) remove illiteracy and provide free and compulsory secondary education within minimum possible period;
(c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit;
(d) ensure inexpensive and expeditious justice;
(e) make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment;
(f) enable the people of different areas, through education, training, agricultural and industrial development and other methods, to participate fully in all forms of national activities, including employment in the service of Azad
Jammu and Kashmir;
(g) prevent prostitution, gambling and taking of injurious drugs, printing, publication, circulation and display of obscene literature and advertisements;
(h) prevent the consumption of alcoholic liquor otherwise than for medicinal and, in the case of non-Muslims, religious purposes; and
(i) decentralise the Government administration so as to facilitate expeditious disposal of its business to meet the convenience and requirements of the public.
3-J. Promotion of social and economic well-being of the people.- The State shall ,-
(a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants;
(b) provide for all citizens, within the available resources of the State, facilities
for work and adequate livelihood with reasonable rest and leisure;
(c) provide for all persons employed in the service or otherwise, social security by compulsory social insurance or other means;
(d) reduce disparity in the income and earnings of individuals, including persons in the various classes of the service; and
(e) eliminate riba as early as possible.
7. Amendment of Article 4 of the Constitution.- In the Constitution, in sub-Article (4) of Article 4, in paragraphs relating to fundamental rights,-
(i) in paragraph 1, between the words “of” and “liberty” the words “life or” shall be inserted;
(ii) in paragraph 2, for the sub- paragraph (4) and
(5), the following shall be substituted, namely:-
“(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defense of Azad
Jammu and Kashmir or Pakistan or any part thereof, or
public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding three months unless the Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.
Explanation-I: In this clause, "the Review Board" means a Board appointed by the Chief Justice of Azad Jammu and Kashmir consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court.
Explanation-II: The opinion of the Review Board shall be expressed in terms of the views of the majority of its members.
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order:
Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.
(6) The authority making the order shall furnish to the Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.
(7) Within a period of twenty four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case:
Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defense of Azad Jammu and Kashmir or Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a law or is a member of any association which has for its objects, or which indulges in, any such antinational activity.
(8) The Review Board shall determine the place of detention of the person detained and for a reasonable subsistence allowance for his family.
(9) Nothing in this clause shall apply to any person who for the time being is an enemy alien.
(iii) In paragraph 3,-
(a) in sub-paragraph (2), between the words “labour” and “are” the words “and traffic in human beings” shall be inserted and thereafter the following new sub-paragraph (2-a) shall be added;
“(2-a) No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment.”
(b) the full stop at the end of clause (b) of sub-paragraph (3) shall be substituted by a colon and thereafter the following proviso shall be added:
“Provided that no compulsory service shall be of a cruel nature or incompatible with human dignity.”
(iv) for paragraph 7, the following shall be substituted, namely:-
“7. Freedom of association.- (1) Every State Subject shall have the right to form association or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan and Azad Jammu and Kashmir, morality or public order.
(2 ) Every State Subject, not being in the Service of Azad Jammu and Kashmir, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of the State and such law shall provide that where the Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of the State, the Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.
(3) 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.
(4) Every political party shall account for the source of its funds in accordance with law.”
(v) in paragraph 8, in clause (c),-
(a) the words “or Council” appearing between the words “Government” and “or” shall be omitted; and
(b) the words and comma “or the Council,” appearing between the words “Government” and “of” shall be omitted.
(vi) In the paragraph 14,-
(a) in sub-paragraph (3), in clause (b), after the words “under any law” , at the end, the words and brackets, “(not being property which has ceased to be evacuee property under any law)” shall be added; and
(b) after sub-paragraph (3), the following new sub-paragraph (4) shall be added,- “(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any court.”
(vii) For paragraph 15, the following shall be substituted, namely.-
“15. Equality of State Subjects.- (1) All State Subjects are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination against any State Subject on the basis of sex.
(3) Nothing in this Article shall prevent the state from making any special provision for the protection of women and children.
(viii) The paragraph 16 shall be renumbered into subparagraph (1) and thereafter the following new subparagraph (2) shall be added, namely,-
“(2) Nothing in sub-Article (1) shall prevent the state from making any special provision for women and children.”
(ix) For paragraph 17, the following shall be substituted namely:-
“17. Safeguard against discrimination in services.- No State Subject otherwise qualified for appointment in the service of Azad Jammu and Kashmir shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, residence, sex or place of birth:
Provided that in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex:
Provided further that under-representation of any class or area in the service of State may be redressed in such manner as may be determined by an Act of Assembly.
(x) After paragraph 18, the following new paragraphs
19, 20, 21, 22, 23 and 24 shall be added, namely:-
“19. Right to fair trial.-For the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.
20. Protection against double punishment and selfincrimination.- No person shall,-
(i) be prosecuted or punished for the same offence more than once; or
(ii) when accused of an offence, be compelled to be a witness against himself.
21. Inviolability of dignity of man, etc.-
(i) The dignity of man and, subject to law, the privacy of home, shall be inviolable.
(ii) No person shall be subjected to torture for the purpose of extracting evidence.
22. Right to information.- Every State Subject shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.
23. Right to education.- The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.
24. Preservation of language, script and culture.- Without prejudice to the national language of Azad Jammu and Kashmir as may be declared by the Government, any section of society having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose.”
8. Amendment of Article 5 of the Constitution.- In the
Constitution, in Article 5, in sub-Article (1), for the words “Joint Sitting”, appearing twice, the word “Assembly” shall be substituted.
9. Amendment of Article 6 of the Constitution.- In the Constitution, in Article 6, for the words “Joint Sitting”, wherever appearing, the word “Assembly” shall be substituted.
10. Amendment of Article 12 of the Constitution.- In the Constitution, in Article 12, the words and comma “Subject to this Act,” shall be omitted.
11. Amendment of Article 14 of the Constitution.- In the Constitution, in Article 14, in sub-Article (1), the proviso, shall be substituted as under:-
“Provided that from next term of Assembly, total strength of Ministers in the cabinet shall not exceed thirty percent of the total membership of the Assembly.”
12. Substitution of Article 14-A of the Constitution.- In the Constitution, for Article 14-A the following shall be substituted, namely:-
“14-A. Appointment of Advisors, Special Assistants and Parliamentary Secretaries.- (1) The Prime Minister may appoint Advisors and Special Assistants to Government, of whom total strength in each case shall not exceed two, for the performance of such duties and functions as may be prescribed by law.
(2) The Prime Minister may also appoint
Parliamentary Secretaries, not exceeding five from amongst the members of the Assembly to perform such functions as may be prescribed by law.
(3) The Advisor, Special Assistant or
Parliamentary Secretary, as the case may be, by writing under his hand addressed to the Prime Minister, may resign from his office or may be removed from his office by the Prime Minister.”
13. Amendment of Article 17 of the Constitution.- In the Constitution, in sub-Article (3) of Article 17, for the comma and words “, for any reason, the Prime Minister is unable to perform his functions” the words “the Prime Minister is unable to perform his functions due to physical incapacitation or sickness” shall be substituted.
14. Amendment of Article 18 of the Constitution.- In the Constitution, for sub-Article (1) of Article 18, the following shall be substituted, namely,-
“(1) A resolution for a vote of no-confidence (hereinafter in this Article referred to as the resolution) moved by not less than twenty five per centum of the total membership of the Assembly may be passed against the Prime Minister by the Assembly.”
15. Substitution of Article 19 of the Constitution.- In the Constitution, for Article 19, the following shall be substituted, namely:-
“19. Extent of executive authority of Government.- (1) The executive authority of the Government shall extend to the matters with respect to which the Assembly has power to make laws including Part-B of Third Schedule and shall be so exercised as,-
(a) not to impede or prejudice the responsibilities of Government of Pakistan in relation to the matters specified in sub-Article (3) of Article
(b) to secure compliance with the laws made in relation to matters specified in Third Schedule as set out under sub-Article (3) of Article 31.
(2) The Government, if deems necessary or expedient in the public interest and to secure paramount purpose of social and economic wellbeing of the people of the State, may with the consent of the Government of Pakistan, entrust, either conditionally or unconditionally, to the Government of Pakistan or to any of its subordinate authority including a ministry, division, organization or statutory body or entity of Pakistan, to perform any of such functions within territory of the State as may be prescribed by law.
(3) The Government of Pakistan may also entrust, either conditionally or unconditionally, any of its functions to the Government in relation to any matter specified in Part-B of the ‘Third Schedule’ as set out under sub-Article (3).
(4) The relationship between Government of Pakistan with the Government shall be such as manifested in sub-Article (3) of Article 31 and the Cabinet Division D.O. No. 8/9/70-Cord-1 dated the 11th May, 1971 of the Government of Pakistan with respect to peculiar political status of Azad Jammu and Kashmir and shall be the guiding principles to maintain direct working relationship of Government with the Government of Pakistan.”.
16. Amendment of Article 21 of the Constitution.- In the
Constitution, in Article 21,-
(i) sub-Articles (7), (8), (9), (10), (11), (12) and (13) shall be omitted; and
(ii) sub-Article (14) shall be renumbered as sub-Article
(7) thereof and thereafter the following new sub-
Article (8) shall be added, namely:-
“(8) The Council shall have an advisory role in respect of matters and subjects, referred to in subArticle (3) of Article 31 and in respect of the responsibilities of Government of Pakistan under the UNCIP Resolutions.”.
17. Amendment of Article 22 of the Constitution.- In the Constitution, in Article 22,-
(i) in sub-Article (1), for the words “forty nine”
the words “fifty three” shall be substituted;
(ii) for clause (a) of sub-Article (1), the following
shall be substituted, namely;-
“(a) forty five shall be elected directly on the basis of adult franchise, out of whom,-
(i) thirty three members to be elected by the State Subjects residing in the Azad Government of the State of Jammu and Kashmir as defined in
Provided that this amendment shall take effect from the next term of the Assembly;
(ii) six members to be elected from amongst themselves by the refugees from the occupied areas of districts of Muzaffarabad, Anantnag
(Islamabad) and Baramula as these existed on the 14th day of August, 1947, who are now residing in any of the province of Pakistan;
(iii) six members to be elected from amongst themselves by such of the State Subjects from occupied areas of districts of Jammu, Kathua, Reasi, Udhampur, Poonch State and Mirpur as existed on the 14th day of
August, 1947 and Mangla Dam affectees who are now residing in any of the province of Pakistan:
Provided that the members
represented under sub-clauses (ii) and (iii), hereinabove, shall be deemed to have been elected and shall always to have been validly represented and elected under this Article.
18. Amendment of Article 27 of the Constitution.- In the Constitution, for sub-Article (3) of Article 27, the following shall be substituted, namely:-
“(3) The Assembly shall meet for not less than sixty working days in each year.”.
19. Amendment of Article 30-A of the Constitution.- In the Constitution, in Article 30-A, the words “or the Council or the joint sitting” shall be omitted.
20. Substitution of Article 31 of the Constitution.- In the Constitution, for Article 31, the following shall be substituted, namely:-
“31. Legislative Power.- (1) Subject to sub-Article (3) the Assembly shall have the power to make laws,-
(a) for the territories of Azad Jammu and Kashmir;
(b) for all state subjects, wherever they may be; and
(c) for all persons in the Service of Azad Jammu and Kashmir, wherever they may be.
(2) The Assembly shall have exclusive power to make laws on any matter not enumerated in Part-A of the Third Schedule.
(3) The Government of Pakistan shall have exclusive power to make laws with respect to any matter enumerated in ‘Part-A’ of the Third Schedule.
(4) The Assembly shall, with the consent of Government of Pakistan, make laws with respect to any matters enumerated in ‘Part-B’ of the Third Schedule.
(5) All taxes including the income tax shall be levied for the purposes of the territories of Azad Jammu and Kashmir by or under the authority of an Act of the Assembly.
(6) No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah.
Explanation.—In the application of this subArticle to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect.”.
21. Substitution of Article 32 of the Constitution.- In the Constitution, Article 32 shall be substituted as under,-
“32. Council of Islamic Ideology.- (1) There shall be a Council of Islamic Ideology, hereinafter referred to as the Islamic Council.
(2) The Islamic Council shall consist of such members, being not less than five nor more than ten, as the President may appoint, on the advice of the Prime Minister, from amongst persons having knowledge of principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic, political, legal or administrative problems of Azad Jammu and Kashmir.
(3) While appointing members of Islamic
Council, the President shall ensure that,-
(a) so far as practicable, various school of thought are represented in the Islamic Council
(b) not less than one of the members are persons each of whom is or has been a judge of the Supreme Court or of a High Court; and
(c) not less than one third of the members are persons each of whom has been engaged for a period of not less than fifteen years, in Islamic research or instruction.
(4) The President shall appoint one of the members of Islamic Council to be Chairman of Islamic Council.
(5) If one-third members of the total strength of the Assembly so requires, the Assembly may refer to Islamic Council or Islamic Ideology Council of
Pakistan constituted under Article 228 of the Constitution of Pakistan, for solicitation of advice as to whether a proposed law is or is not repugnant to the injunctions of Islam:
Provided that the Government may also make such reference for advice of Islamic Council or Islamic Ideology Council of Pakistan, if deems expedient in the public interest.
(6) When a proposed law or a question is referred under sub-Article (6), the Islamic Council, or the Islamic Ideology Council of Pakistan, as the case may be, shall, within fifteen days, inform the Assembly or the Government of the period within which the council expects to be able to furnish that advice:
Provided that the Islamic Council may refer the question so received, with or without its opinion, to the Council of Islamic Ideology of Pakistan for advice.
(7) Where the Assembly considers that in the public interest, the making of the proposed law in relation to which the question arose should not be postponed until the advice of the Islamic Council or Islamic Ideology Council of Pakistan is furnished, the law may be made before the advice is furnished;
Provided that, where a law is referred for advice under sub-Article (7) and it is advised that the law is repugnant to the injunctions of Islam, the Assembly shall reconsider the law so made.
(8) A member of Islamic Council shall hold office for a period of three years.
(9) A Member may, by writing under his hand addressed to the President, resign his office or maybe removed by the President upon the passing of a resolution for his removal by a majority of the total membership of the Islamic Council.
(10) The proceedings of the Islamic Council shall be regulated by rules of procedure to be made by the Council with the approval of the Government.
22. Substitution of Article 33 of the Constitution.- In the Constitution, for Article 33 the following shall be substituted, namely,-
“33. Amendment of the Act.- (1) The provisions of the Constitution may be amended in accordance with the following provisions.
(2) No amendment shall be made in Articles 31, 33 and 56, without the prior approval of the Government of Pakistan.
(3) A bill to amend the Constitution, shall be originated in the Assembly and when the bill has been passed with or without amendment by the votes of not less than two-third of total membership of the Assembly, the bill shall be presented to the President for assent.”.
23. Omission of Article 33-A of the Constitution.- In the Constitution, Article 33-A shall be omitted.
24. Substitution of Article 34 of the Constitution.- In the Constitution, for Article 34, the following shall be substituted, namely:-
“34. Validity of Proceedings of the Assembly.- (1) The validity of any proceedings in the Assembly shall not be questioned in any court.
(2) An officer or member or an authority to whom powers are vested for the regulation of proceedings, conduct of business, maintenance of order in the Assembly shall not, in relation to the exercise of any of those powers, be subject to the jurisdiction of any court.
(3) A member of, or a person entitled to speak in the Assembly shall not be liable to any proceedings in any court in respect of anything
said by him or any vote given by him in the Assembly or in any committee thereof.
(4) A person shall not be liable to any proceedings in any court in respect of publication by or under the authority of the Assembly, of any report, paper, vote or proceedings.
(5) No process issued by a court or other authority shall, except with the leave of the Speaker be served or executed within the precincts of the place where a meeting of the Assembly is being held.
(6) Subject to this Article, the privileges of the Assembly, the committees and members of the Assembly and of the persons entitled to speak in the Assembly may be determined by law.”
25. Omission of Article 35 of the Constitution.- In the
Constitution, Article 35 shall be omitted.
26. Amendment of Article 36 of the Constitution.- In the Constitution, in Article 36, in sub-Article (1), the words ‘or a Joint Sitting” shall be omitted.
27. Omission of Article 37 of the Constitution.- In the
Constitution, Article 37 shall be omitted.
28. Amendment of Article 37-A of the Constitution.-
Constitution, in Article 37-A,-
(i) in sub-Article (1), between the words “revenue” and “received” the words “taxes including income tax” shall be inserted; and
(ii) in sub-Article (2), in clause (b), between the words “the” and “High Court” the words “Supreme Court and the” shall be inserted.
29. Amendment of Article 41 of the Constitution.- In the
Constitution, in Article 41,-
(i) in sub-Article (2), in the clause (a), the semi-
colon at the end shall be substituted by a colon and the word “and” at the end shall be omitted and thereafter following proviso shall be added:
“Provided that the Assembly may by a resolution extend the Ordinance for a further period of four months and it shall stand repealed at the expiration of the extended period.” and
(ii) sub-Article (4) shall be omitted.
30. Amendment of Article 42-A of the Constitution.- In the Constitution, in Article 42-A, in sub-Article (4), for the words “Council” the words “Government” shall be substituted.
31. Amendment of Article 42-D of the Constitution.- Constitution, in Article 42-D, the words “or the Council” shall be omitted.
32. Amendment of Article 43 of the Constitution.- In the Constitution, in Article 43, after sub-Article (1-A), the following new sub-Article (1-B), (1-C) and (1-D) shall be added, namely,-
“(1-B) There shall be a Shariat Appellate
Bench of the High Court as constituted by an Act of the Assembly consisting of Chief Justice of High Court, all the Muslim Judges of the High Court and an Aalim Judge, to perform such functions and exercise such jurisdiction as may be conferred upon it by an Act of the Assembly.
(1-C) The Aalim Judge shall be appointed by the President on the advice of the Prime Minister and after consultation with the Chief Justice of the Supreme Court and the Chief Justice of High Court, from amongst the persons having such qualification and experience and on such terms and conditions, as may be, prescribed by an Act of the Assembly.
(1-D) The Shari’at Appellate Bench of the
High Court, existing at the time of enforcement of this Amendment Act, 2018 shall be deemed to have been constituted under this Article.
33. Amendment of Article 47 of the Constitution.-
Constitution, in Article 47,-
(i) In sub-Article (1), the words “Council in respect of matters to which its executive authority extends and” shall be omitted.
(ii) in clause (b) of sub-Article (1), the words “the Council or” shall be omitted.
34. Substitution of Article 48 of the Constitution.- In the Constitution, for Article 48, the following shall be substituted:-
“48. Public Service Commission.- (1) There shall be a Public Service Commission consisting of a Chairman and such number of members who shall be having such qualification as may be prescribed by an Act of the Assembly.
(2) The appointment of the Chairman
Public Service Commission and members shall be made by the President on advice of the Prime Minister on such terms and conditions as may be prescribed by an Act of the Assembly:
Provided that in respect of appointment of Chairman, the Prime Minister, may solicit the opinion of Leader of Opposition in the Assembly before making advice to the President for such appointment.
The Chairman and members of Public
Service Commission appointed immediately before the commencement of this amending Act, 2018 shall be deemed to have been appointed under this Article subject to terms and conditions already determined and notified at the time of their appointment.”
35. Substitution of Article 50 of the Constitution.- In the Constitution, for Article 50 the following shall be substituted, namely:-
“50. Election Commission.- (1) There shall be an Election Commission for Azad Jammu and Kashmir, hereinafter referred to as “the Commission”.
(2) The Commission shall consist of the
Chief Election Commissioner, who shall act as the Chairman and two Members.
(3) The Chief Election Commissioner, hereinafter referred to as the Commissioner, shall be appointed by the President on the advice of the Chairman of the Council.
(4) The Prime Minister after consultation with the Leader of Opposition in the Assembly shall finalize the nominees for the appointment as Commissioner.
(5) No person shall be appointed as the Commissioner unless he has been a Judge of the Supreme Court or High Court or has been a civil servant of BPS-21 and above, in the service of Azad Jammu and Kashmir.
(6) The members of the Commission possessing the qualification as mentioned for Commissioner in sub-Article (5) above, shall be appointed by the President on the advice of the Prime Minister.
(7) It shall be duty of the Commission to organize and conduct the election for the office of the President, the Assembly, the Council and local government bodies and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with the law.
(8) The Commission shall have such powers and perform such functions as are conferred on it under the Constitution and Act of the Assembly.
(9) At any time when the office of Commissioner is vacant or the Commissioner is absent or unable to perform the functions of his office due to any cause, the senior member of Commission duly designated at the time of appointment shall act as Commissioner for a period not exceeding six months.
(10) Before entering upon office, the
Commissioner shall make oath before the Chief Justice of Azad Jammu and Kashmir and the members before the Commissioner in the form set out in the First Schedule.
(11) Subject to this Article, the Commissioner and each member, as the case may be, shall hold office for a term of five years from the day he enters upon his office:
Provided that the Chief Election Commissioner appointed before the commencement of the Azad Jammu and Kashmir Interim Constitution
(Thirteenth Amendment) Act, 2018 shall be deemed to have been appointed under this Article for remaining period of his term.
(12) The Commissioner and members shall not be removed from their office except in the manner prescribed in Article 42-E.
(13) The Commissioner or the member may, by writing under his hand addressed to the
President, resign from his office.
(14) The terms and conditions, other than mentioned hereinabove, for the office of the Commissioner and member shall be such as may be prescribed by an Act of Assembly.
The Commissioner or a member
hold any other office of profit in the
Service of Azad Jammu and
Kashmir or Pakistan; or
occupy any other position carrying
the right to remuneration for the rendering of such services.
(16) A person who has held office as
Commissioner or the member shall not hold any office of profit in the Service of Azad Jammu and Kashmir or Pakistan before the expiration of two years after he has ceased to hold that office.
(17) The Commission shall perform such functions as may be determined by Act of Assembly.
(18) It shall be the duty of all executive authorities in the state to assist the Commission in the discharge of its functions.
(19) Until Assembly by law otherwise provides, the Commission may, on the advice of the Prime Minister and with the approval of the President, make rules providing for the appointment of officers and servants to be employed in connection with the functions of the Commission and for their terms and conditions of employment.”.
36. Amendment of Article 50-A of the Constitution.- In the Constitution, in Article 50-A, in sub-Article (1), for the word ‘Council’, the words “Chairman of the Council” shall be substituted.
37. Amendment of Article 51 of the Constitution.- In the Constitution, in Article 51, the existing provision shall be renumbered to as sub-Article (1) and thereafter the following new sub-Article (2) shall be added, namely:-
“(2) Subject to the Constitution, all laws of Azad Jammu and Kashmir which, from time to time, made by the Azad Jammu and Kashmir Council and in force immediately before the commencement of the Azad Jammu and Kashmir Interim Constitution (Thirteenth Amendment) Act, 2018, shall continue to be in force until amended or altered or repealed by the Act of the Assembly or by the order, notification etc., of the Government of Pakistan or, as the case may be, by the Azad Government of the State of Jammu and Kashmir:
Provided that the reference of Azad Jammu and Kashmir Council made in the existing laws, on the commencement of the Azad Jammu and Kashmir Interim Constitution (Thirteenth Amendment) Act, 2018, shall, as far as practicable, be construed and referred to as the Assembly, or as the case may be, Government of Pakistan or the Azad Government of the State of Jammu and Kashmir.”.
38. Insertion of new Article 51-A of the Constitution.- In the
Constitution, after Article 51, the following new Article 51A shall be inserted, namely:-
“51-A.Transfer of Employees, Assets and Liabilities.-(1) On the commencement of the Azad Jammu and
Kashmir Interim Constitution (Thirteenth Amendment) Act, 2018, all moveable and immovable properties and assets, moneys or funds received by and deposited in the Azad Jammu and Kashmir Council Consolidated Fund or made part of Public Finance, all savings or fixed deposits of the Council in all bank accounts and also such liabilities which were incurred under any law, shall immediately be transferred or invested with Azad Jammu and Kashmir Consolidated Fund or, as the case may be, to the Government.
(2) All existing employees in the service of
Azad Jammu and Kashmir Council who immediately before the commencement of the Azad Jammu and Kashmir Interim Constitution
(Thirteenth Amendment) Act, 2018 were serving on regular basis under superintendence and control of Azad Jammu and Kashmir Council for any department, secretariat or any statutory body or institution or organizations duly constituted or setup under any law or through its executive authority shall stand transferred or shifted to the Government forthwith on commencement of this amending Act, 2018.
(3) The rights of the persons under existing laws of Azad Jammu and Kashmir who were, immediately before the commencement of the Azad Jammu and Kashmir Interim Constitution (Thirteenth Amendment) Act, 2018, serving under the Azad Jammu and Kashmir Council shall be protected and officers and servants on deputation from the Federal Government or any province shall be entitled for repatriation to their parent organizations.
(4) The persons serving on contractual or temporary basis shall not be entitled to claim any right to continue their employment and they shall be dealt in accordance with prevailing service rules of Azad Jammu and Kashmir and terms of their appointments.
(5) Subject to Article 51, the perks, privileges and allowances to the elected members of the Council and also salary, allowances and pensionary benefits of the employees of the Council in the Service of Azad Jammu and Kashmir, as admissible to them under the law, shall be borne by the Government, for which budgetary requirements shall be made out of the Azad Jammu and Kashmir Consolidated Fund.”
39. Substitution of Article 52-A of the Constitution.- In the Constitution, for Article 52-A, the following shall be substituted, namely:-
“52-A. Power to acquire property and to make contracts, etc.- (1) The executive authority of the Government shall extend, subject to an Act of the Assembly, to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of the Government and to the making of contracts.
(2) All property acquired for the purpose of the Government shall vest in the President.
(3) All contracts made in the exercise of the executive authority of the Government shall be expressed to be made in the name of the President and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President by such persons and in such manner as the President may direct or authorize.
(4) The President shall not be personally liable in respect of any contract or assurance made or executed in the exercise of the executive authority of the Government and no person making or executing any such contract or assurance on his behalf shall be personally liable in respect thereof.
(5) Transfer of land or property by the
Government shall be regulated by law.”
40. Addition of Articles 52-B and 52-C in the Constitution.-
In the Constitution, after Article 52-A, following Articles 52-
B and 52-C shall be added:-
“52-B. Ownerless property.- Any property which has no rightful owner, if located within Azad Jammu and Kashmir, shall vest in the Government.
52-C. Natural Resource endowment.- (1) The natural resource of Azad Jammu and Kashmir which having a potential of economic value and providing for the sustenance of life for future generations shall be preserved and regulated by an Act of the Assembly.
(2) Without prejudice to sub-Article (1), the natural resource of Azad Jammu and Kashmir may be utilized under the law, in the economic and efficient manner, by the Government and also may be authorized under an Act of
Assembly to utilize any resource of the State by any person, entity or authority of Pakistan in consideration of valuable economic benefits for the public interest such as net-hydel profit or royalty or any other acceptable form or benefit but without affecting the pristine environmental value of the inherent endowment of the State.”
41. Amendment of Article 53 of the Constitution.- In the
Constitution, in Article 53,-
(i) in sub-Article (2), for the words “a joint sitting” the words “the Assembly” shall be substituted.
(ii) in sub-Article (2-A), the words “unless it has earlier been approved by a resolution of the Council” shall be omitted.
42. Amendment of Article 54 of the Constitution.- In the
Constitution, in Article 54, in sub-Article (1), full stop at the end shall be substituted by a colon and thereafter the following proviso shall be added:
“Provided that the Assembly shall, in no case be dissolved on account of issuance or pendency of the proclamation under the Constitution.”
43. Amendment of Article 58 of the Constitution.- In Article 58, between the words “may” and “make”, the commas and words “, on the advice of Prime Minister,” shall be substituted.
44. Amendment of the First Schedule of the Constitution.- In the Constitution, in First Schedule,-
(i) form of “Oath of Advisor” shall be omitted; and
(ii) form of oath for office of Chief Election
Commissioner and Member of the Election Commission shall be added as under,-
“CHIEF ELECTION COMMISSIONER OR A
MEMBER OF THE ELECTION COMMISSION
[See Article 50]
I, ____________, do solemnly swear that as Chief Election Commissioner or member of the Election Commission, I shall discharge my duties, and perform my functions honestly, to the best of my ability, faithfully in accordance with the Azad Jammu and Kashmir Interim Constitution, 1974 and the law, and without fear or favor, affection or ill will, and that I shall not allow my personal interest to influence my official conduct or my official decisions.
May Allah Almighty help and guide me (A'meen).”
45. Substitution of Third Schedule of the Constitution.- In the Constitution, for the Third Schedule the following shall be substituted, namely,-
[See Article 31 (3) and (4)]
1. The responsibilities of the Government of Pakistan under the UNCIP Resolutions.
2. Defense and security of Azad Jammu and Kashmir.
3. The current coin or the issue of bills, notes or other paper currency.
4. The External affairs of Azad Jammu and Kashmir including foreign trade and foreign aid.
5. Post and Telegraphs, including Telephones, Wireless, Broad- Casting and other like forms of communications; post office saving Bank.
6. Nuclear energy, including:-
(a) mineral resources necessary for the generation of nuclear energy;
(b) the production of nuclear fuels and the generation and use of nuclear energy; and
(c) ionizing radiations.
7. Aircraft and air navigation; the provision of aerodromes; regulation and organization of air traffic and of aerodromes.
8. Beacons and other provisions for safety of aircraft.
9. Carriage of passengers and goods by air.
10. Copyright, inventions, designs, trademarks and merchandise marks.
11. Opium so far as regards sale for export.
12. State Bank of Pakistan; banking, that is to say, the conduct of banking business by corporations other than corporations owned or controlled by Azad Jammu and Kashmir and carrying on business only within the Azad Jammu and Kashmir.
13. The law of insurance, except as respects insurance undertaken by Azad Jammu and Kashmir and the regulation of the conduct of insurance business, except as respects business undertaken by Azad Jammu and Kashmir.
14. Stock exchanges and future markets with objects and business not confined to Azad Jammu and Kashmir.
15. Corporations, that is to say, the incorporation, regulation and winding-up of trading corporations, including banking, insurance and financial corporations, but not including corporations owned or controlled by Azad Jammu and Kashmir or cooperative societies, and of corporations, whether trading or not, with objects not confined to Azad Jammu and Kashmir, but not including universities.
16. Planning for economic coordination including planning and coordination of scientific and technological research.
17. Highways, continuing beyond the territory of Azad Jammu and Kashmir and also roads declared by the Government of Pakistan to be of strategic importance.
18. External affairs; the implementing of treaties and agreements, including educational and cultural pacts and agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan.
19. Foreign exchange; cheques, bills of exchange, promissory notes and other like instruments.
20. Administrative Courts and Tribunals for subjects under this Part.
21. Libraries, museums, and similar institutions controlled or financed by the Government of Pakistan.
22. Government of Pakistan agencies and institutes for the following purposes, that is to say, for research, for professional or technical training, or for the promotion of special studies.
23. Education as respects Azad Jammu and Kashmir students in foreign countries and foreign students in Azad Jammu and Kashmir.
24. Import and export across customs frontiers as defined by the Government of Pakistan.
25. International treaties, conventions, agreements and
26. Surveys including geological surveys and meteorological organizations.
27. Establishment of standards of weights and measures.
28. Duties of customs, including export duties.
29. Taxes on corporations.
30. Offences against laws with respect to any of the matters in this Part.
31. Inquiries and statistics for the purposes of any of the matters in this Part.
32. Matters incidental or ancillary to any matter enumerated in this Part.
2. Mineral oil and natural gas; liquids and substances declared by Government of Pakistan to be dangerously inflammable.
3. National planning and national economic coordination, including planning and coordination of scientific and technological research.
4. Supervision and management of public debt.
7. State Property until transfer to the Government of AJK.
8. Electricity except the power generation planned and made by Government of AJK.
9. Terminal taxes on goods or passengers carried by railway or air, taxes on their fares and freights.
10. Extension of the powers and jurisdiction of members of a police force belonging to Azad Jammu and Kashmir, or any Province of Pakistan to any area in such province or the Azad Jammu and Kashmir but not so as to enable the police of Azad Jammu and Kashmir or such province to exercise power and jurisdiction in such province or Azad Jammu and Kashmir and without the consent of the Government of that province or the Azad Jammu and Kashmir.
11. Measures to combat certain offences committed in connection with matters concerning the subjects included in this list.
12. Removal of prisoners and accused persons from Azad Jammu and Kashmir to Pakistan or from Pakistan to Azad Jammu and Kashmir.
13. Prevention of the extension from Azad Jammu and Kashmir to Pakistan or from Pakistan to Azad Jammu and Kashmir of infections of contagious diseases or pests affecting men; animals or plants.
14. Curriculum, syllabus, planning, policy, centers of excellence and standards of education.
15. Medical and other professions excluding legal profession.
16. Standards in institutions for higher education and research, scientific and technical institutions.
17. Matters concerning coordination between Azad Jammu and Kashmir and other Provinces of Pakistan.
18. The salaries, allowance and privileges of the members and including salaries and pension payable to employees of the council.
19. Jurisdiction and powers of all courts with respect to any of the matters enumerated in this list.
20. Offences against laws with respect to any of the matters in this Part.
21. Inquiries and statistics for the purposes of any of the matters in this Part.
Matters incidental or ancillary to any matter enumerated in this Part.
The above constitution changed the very nature of the 1974 constitution and was rejoiced throughout Azad Kashmir as the beginning of true autonomy. Some major amendments were the following
· The word act was removed and constitution replaced the act making it the official constitution.
· The term joint sitting was entirely removed from the definition which meant that the legislative assembly looked to secure power where joint sitting was mentioned
· Principles of policy which were originally not part of the constitution but existed in the Pakistani constitution were now made part of it and they have been written in the amendment as well as the addition of Islamic way of life and the responsibility of the state to make sure islam is implemented within the region
· New fundamental rights like right to fair trial, equality, right to information, right to education and ofcourse the preservation of local customs, language e.t.c
· Various areas where joint sitting were mentioned are now replaced with assembly meaning that wherever the joint sitting was to make decisions like amendments this will be done by the assembly.
· The council in article 21 has been reduced to an advisory board alone and its powers have been taken by the assembly.
· Now seats became 53 amongst which 45 are to be elected amongst which 33 are to be elected by the residents of the AJK and the rest for the occupied territories of the indian state.
· Now the amendment divided the third schedule into two parts. Part A and Part B. The assembly can make any laws not mentioned in Part A as Part A is exclusively for Pakistan and assembly will make laws for Part B upon advice of Pakistan and most importantly the council is removed from tax levy and only the assembly can now implement and create taxes within the AJK.
· The amendment process was changed and the flexible constitution became a bit inflexible with 2/3rd majority of the assembly passing the amendment for presidential assent. Joint sitting was removed entirely. its procedure was omitted and assembly became the lone legislature as article 35 was also omitted.
This amendment has a great effect as AJK got immense fiscal autonomy. The Kashmir council also collected funds for its own projects but it now got merged into the AJK funds with the accountant general office under AJK. Kashmir council will also no longer run developmental schemes as that will be done entirely by the AJK government and All projects in AJK must get approval of the AJK assembly thus natural resources are preserved. Plus for the first time AJK will receive hydro charges to wapda at the rate fixed for Punjab or kpk and unlike before the local government will be allowed to consume locally produced energy first. Departments like tourism are also under AJK and the government has pledged to provide them observer status in the Indus river system authority, the economic coordination committee and the national finance commission. AJK with this amendment is now truly autonomous and this first step can open new avenues for greater autonomy in line with the autonomy so enjoyed by the Pakistani provinces.
We see above the history and struggle of AJK and the constant arguments of its position. We see that it holds a complicated relation with Pakistan where it is a part of Pakistan yet not a part of it. Pakistan has say in its affairs but is restricted in its legal power. Its authority especially after this amendment is highly limited and again and again its limits in terms of court and law are highlighted. Although positive steps are being taken it is imperative that a permanent solution be presented to end this dispute on top of it all we must make sure that gilgit baltistan does not undergo the roller coaster azad Kashmir had to go through. The legal arguments that began for AJK in 1949 have only begun for GB in 2010 and this cannot be delayed as it was for AJK. We must highlight their roles in our constitution and work tirelessly to find the solution of Kashmir issue whilst working for greater governance in the region. It is no doubt that kashmiris and gilgitis and Pakistanis are one in the same but this oneness must not be taken for granted. In our own Political and internal struggles we must not forget the regions that placed their trust upon us and the people that placed their hopes and futures in our hands. This must not be betrayed.
 Substituted by 1st Amendment Act 1975.
 Added by ibid.
 Added by 2nd Amendment Act 1976.
 Substituted by ibid.
 Omitted by ibid. 67 Inserted by ibid.
 Substituted by 1st Amendment Act 1975.
 Inserted by 1st Amendment Act 1975. 123 Added by ibid.
Apologies for any grammatical mistake
Last edited by a moderator: