Altaf Hamid Rao
MIRPUR (AJK):(Parliament Times) Veteran seasoned Jurist of Azad Jammu & Kashmir and ex Chief Justice of AJK High Court Justice (Retd) Abdul Majeed Mallick has said that the Government of Azad Jammu & Kashmir was eligible and authorized to governance and administration of the Azad Jammu Kashmir territories in the light of its sovereign authority envisaged in Independence Act 1947, affirmed and resolved by the Security Council in Its resolutions and declared in the charter of October 24, 1947.
“In the recent 13th amendment in Article 4 (7), (freedom of Association), the sovereign status of the AJK State and its Integrity has also been accepted and acknowledged. It this position, the Azad Government of the State of Jammu & Kashmir enjoyed its power and aurhority in governance and administration of the AJK Territories”, Justice (Retd) Majeed Mallick said while talking to this Correspondent here on Saturday
Commenting on diverse repercussions of the recently-arrived 13th constitutional amendment in formerly Act 1974, the Interim Constitution of Azad Jammu Kashmir, seasoned jurist and retired Chief Justice of Azad jammu Kashmir High Court Justice Abdul Majeed Mallick has said that the amendment contains positive and negative points.
Main positive point in the amendment is that Act 1974 has been substituted and referred as the constitution.
Justice Majeed Mllick recalled that the United Nations Security Council’s resolution of March 13th 1951, moved on the request of Pakistan imposed restriction and condition that no political party or Constituent or Legislative Assembly of any part of the State, could not dispose off the State as a whole or any of its part, or affiliate it in any manner to India or Pakistan, in derogation to the UNSC resolution past from time to time. “Such a restriction imposed by the UNSC, was reaffirmed by a resolution of January 24, 1957”, he pointed out and added that therefore the transfer of subjects and matters pertaining to Azad Jammu Kashmir and transferred to Pakistan was a serious debatable issue. Likewise, it was desirable to ascertain whether the transfer of subjects under the third schedule was compatible with the provisions of Article 257 of the constitution of Pakistan.
Elaborating, Justice (Retd) Mallick said that it was debatable weather the AJK Legislative Assembly the AJK Council in joint session were competent to declare the Act as the constitution. “Primarily, a constituent assembly along, was competent to frame a constitution”, he observed.
He continued that the next positive point refer to fundamental right “freedom of association, wherein, Para 7 (2), the status of the State of Jammu & Kashmir was acknowledged as sovereign and political entity”. “It was provided that no person shall act in derogation and against the interest of the sovereignty or integrity of the state”, he pointed out.
Justice (Retd) Majeed Mallick , also central President of Jammu Kashmir Liberation League, said that it was a historical fact on enforcement of independence Act of 1947 and on lapse of treaty of Amritsar, the State of Jammu & Kashmir assumed its position as sovereign State. This position, he pointed out, was further affirmed by the resolutions of the United Nations Security Council, past from time to time and accepted both by India and Pakistan. “Therefore, unless the disposal of the State was made in the shape of accession to Pakistan or India in exercise of the right of self determination, in a free and impartial plebiscite, the sovereign status of the State continues as such.
Justice (Retd) Mallick underlined there was also an addition and clarification in the words and phrases in fundamental rights as assigned in the amendment. He observed that the 13th amendment was the result of struggle of the people of Azad Jammu Kashmir and the elected members of the AJK Legislative Assembly as they were least satisfied with the functioning of the Jammu & Kashmir Council. Justice Mallick said that the administrative powers exercised by the minister and staff of the AJK Council, was considered direct intervention and sharing the administration in the affairs of Azad Jammu Kashmir.
Just (Retd) Majeed Mallick recalled that previously the AJK Council was assigned authority in the administration and law making in 52 sujects, described in the third schedule. “By virtue of amendment, the extent of executive authority of AJK government, was described in section in Article 19 of the Constitution. This was subject to legislative powers of the Assembly described in article 31 (2)”, he said and added that it was provided, “the assembly shall have exclusive power to make laws on any matter not enumerated in the 3rd Schedule. Article 31 (5) postulated, “all taxes including the income tax shall be levied for the purposes of the territories of Azad Jammu & Kashmir by or under the authority of an act of the Assembly”.
The aforesaid provisions expressly exclude the legislative power of the Assembly, including imposition of taxes including the income tax, in all subjects except in respect of all subjects and matters described in schedule 3. The schedule 3 contain 33 matters in its part ‘A’ and 21 matters in part ‘B’, he said. “Prima facie, all the important subjects of the vital administrative and tax bearing matters were delivered to the authority of the Government of Pakistan, as referred in article 31 (3)”, he underlined.
He said that the administrative and law making authority previously exercised by the AJK Council was substituted by the Government of Pakistan. Justice Mallick emphatically said that it was noticeable that in Pakistan, the parliament, the superior judiciary and National Accountability Bureau (NAB) and other agencies, function under the constitution and law if Pakistan. He observed that the 13th amendment was silent on the point of accountability of the Government of Pakistan in respect of matters transferred to it under the amendment. “Just like AJK Council, the government of Pakistan was not answerable before the superior judiciary of Pakistan or Azad Jammu Kashmir and any other institution of Pakistan or AJK empowered to hold the Govt of Pakistan in respect of matters enumerated in scheduled ‘3’ .
Justice (Retd) Majeed Mallick said that it is interesting that the AJK Council, continued in its previous position to function under the interim constitution. However, its status was reduced to an advisory role in respect of the matters and subjects contain in article 31 (3) related to responsibilities of the government of Pakistan under the UNCIP (United Nations Commission for India and Pakistan) resolutions. He continued that its administrative staff and offices were left under its control.
Responding to a question, Justice (Retd ) Majeed Mallick said that an important restriction was imposed under the interim constitution, whereby, under the Article 33, no amendments in the interim constitution of AJK were to be made in Article 31, 33 and 56, without prior approval of the Government of Pakistan. “Article 33 pertains to amendment of the interim constitution”, he pointed out. He underlined that previously such a restriction of the prior approval of the Government of Pakistan to make an amendment in the constitution was absent.
Justice (Retd) Mallick further said that the aforesaid restriction has reduced the legislative power of the assembly. Likewise, in article 51 of the interim constitution, whereby the protection has been provided to all laws made by the council and were enforced immediately before the commencement of the amendment, provided that such laws, made by the AJK Council shall continue in force until amended or altered by the order, notification, etc ; of the Government of Pakistan or by the Act of the AJK Legislative Assembly. “The aforesaid provision described in Article 51 was an indicator of the fact that all the matters and subjects transferred to the Government of Pakistan under the Third schedule were subjects to orders, notifications etc. of the Government of Pakistan, for their implementation, administration in position of taxes etc and all other actions.