Altaf Hamid Rao;
MIRPUR (AJK): Describing the recently-passed 13th AJK Constitutional Amendment as people-friendly, the retired Chief Justice of Azad Jammu Kashmir Justice Muhammad Azam Khan has said that Azad Jammu Kashmir government and the State Legislative Assembly have become more powerful after the arrival of the much-awaited amendment in Act – 1974 – interim constitution of Azad Jammu & Kashmir.
Primarily the credit of the amendment goes to the AJK prime minister Raja Farooq Haider Khan, he observed while responding to a question.
Talking to this Correspondent here on Tuesday over the much-popular 13th Amendment in the Interim Constitution of Azad Jammu Kashmir, Justice (Retd) Azam Khan, ex Chief Justice of the Supreme Court of Azad Jammu Kashmir, underlined that most of the articles incorporated in the 13th amendment are based on the recommendations and proposals of the committee constituted by the previous Azad Jammu Kashmir Legislative Assembly. “AJK would have more powerful government as a result of the 13th amendment – which is appreciable as a whole”, he declared.
Referring to the pre- 13th constitutional amendment in Act 1974 (now the interim constitution of AJK), Justice (Retd) Azam Khan recalled as saying that the dispute over the AJK Council was raised by late Sardar Abdul Qayyum Khan then President of All Jammu Kashmir Muslim Conference in 1977 during the PNA movement.
He said that one of the demands of the PNA during negotiations with late Zulfiqar Ali Bhutto was that the AJK Council be abolished.
According to Moulana Kouser Niazi as narrated in his book “AUR LINE CUT GAYEE”, the demand was accepted by late Z .A .Bhutto, Justice (Retd) Azam Khan referred to while recalling the history.
He continued while referring to the inordinate delays of months in the AJK Council in the course of the appointments of judges to the superior judiciary of Azad Jammu Kashmir. The recommendations of the judicial commission and the formerly parliamentary commission regarding the appointment of the judges have been included in the constitutional amendment, he pointed out.
Elaborating the diverse salient features of the 13th constitutional amendment, Justice (Retd) Azam said that the name of formerly Act 1974 has been changed to the Interim Constitution-1974 of Azad Jammu Kashmir under the above amendment. Moreover the word of ‘ Sections’ in the interim constitution will now be called as ‘Article / Articles’ and the Sub Sections will be called Sub Aritcles.
Justice (Retd) Azam Khan continued that 52 subjects were included in council legislative list important among others were appointment of judges in superior judiciary banking courts banking tribunals matters relating to electricity legislation in respect of council legislative list apart from legislative power ajk council was empowered to exercise executive authority on the subjects numerated in council legislative list he stated that files of appointment of judges and chief election commissioner remain pending with the council for months and sometimes judges were appointed by the consultation of the chief justice. Officers from FBR were appointed in ajk taxation department the council used funds arbitrarily as a bribe to disable the ajk government therefore there was always a strong resentment among the politicians and political parties of ajk against the beurocracy and high-up’s of ajk council.
The Former chief Justice continued by elaborating that right from 1975 the political parties and azad government have been demanding for abolishing the ajkcouncil and the previous assembly constituted a committee for making recommendations for making amendments in making ajk interim constitution 1994 which had representation of all the parliamentary parties and the committee approved its recommendation and submitted to the speaker and government of Pakistan. It was elaborated by the Former Chief justice that an amendment in section 31, 33 and 56 of act 1974 can only be brought with prior approval of Government of Pakistan
Referring to the most significant aspect of the 13th constitutional amendment, the retired chief justice of AJK underlined thatall the fundamental rights enshrined in constitution of Pakistan 1993 were not included in act 1974. Through the 13thamendment all the fundamental rights enshrined in constitution of Islamic republic of Pakistan 1973 have been included in AJKinterimconstitution, principals of policy appearing in constitution of Islamic republic of Pakistan 1973 have been included in interimconstitution. It included protection of local bodies institution, grant of due representation to women in all spheres of life and the protection to the due rights of minority communities, he added. Right of fair trial and social justice has been included in social justice.
“The historical 13th constitutional amendment also carries the protection of social justice and reradtion of social evils, socio-economic uplift andwell being of the people of AJK”, the retired Chief justice of AJK said.
Justice (Retd) Azam Khan stated that the matter of establishment Election commission forAJK has also been clearly included in the interim constitution through the 13th constitutional amendment at the pattern of the constitution of Pakistan.
He stated that this constitution shall hence fore be known as AJK Interim Constitution 1974. All the powers of the AJK Council regarding the legislation have been abolished through the 13th amendment, he underlined. The retired Chief Justice of the apex court of AJK further stated that in this respect Article 21 of the Interim constitution has been amended through inclusion of Sub Article 8 in the Article 21 – which says “The Council shall have an Advisory Role in respect of the matters and subjects referred to in Sub Article 3 of Article 31 and in respect of the responsibilities of the Government of Pakistan under the United National Commission for India and Pakistan (UNCIP) resolutions.
Justice (Retd) Azam Khan further mentioned that the number of the AJK legislative assembly seats has been raised from existing 49 to 53 through the 13th amendment. Unveiling the breakup of the seats, he said that 45 of the seats will be elected directly on the basis of adult franchise. These seats included 33 meant for all ten districts of AJK, 6 each for Pakistan-based Jammu Kashmir refugees belonging to Kashmir valley and the Jammu region including the Mangla dam affectees settled in all the four provinces of Pakistan. Appreciating the amendment, Justice Azam Khan further said that the constitution protection has been given to these 12 seats meant for Pakistan-based Jammu Kashmir refugees including the Mangla dam affectees.
He particularly mentioned that Azad Jammu Kashmir Legislative Assembly will now be bound to function for minimum of 60 days in a year.
To a question about the grant of fundamental rights to AJK people through the amendment, Justice (Retd) Azam Khan said that the principal of police has been provided under the 13th amendment in the AJK Interim constitution at the pattern of Pakistan.
Through the ACT 1974 president was elected through the joint sitting. Through the 13thamendment the legislative assembly is competent to elect the president.
Referring to the matter of acting prime minister Former Chief Justice said that previously that whenever the prime minister was unable to perform his function due to any reason the most senior minister has to act as Acting Prime minister but after the 13thamendment Acting prime minister will act only in the eventuality if the prime minister is unable to perform his function due to physical incapacitation or sickness
Referring to the no confidence motion against the leader of the house in the backdrop of the constitutional amendment, the retired chief justice of AJK said that now, under Article 18 of the AJK Interim constitution, at least 25 percent of total members of the AJK Legislative Assembly may move No Confidence motion against leader the house / the Prime Minister of AJK.
He said that moreover the amendment is also appreciated for the reason that the AJK Shariat Court has also been given the constitutional protection through the amendment in Article 43 the judges of “The AJK High Court will also be the judges of the AJK Shariat Court in the wake of the constitutional protection given under the aforesaid article”, he added.
Under various other salient features of the 13th constitutional amendment, Chairman of the AJK Public Service Commission (PSC) shall be appointed by the President of AJK on the advice of the Prime Minister of AJK. “The AJK Prime Minister may solicit the opinion of the leader of opposition in the AJK Legislative Assembly before making advice to the President of AJK for appointment of Chairman of the AJK Public Service Commission”, he underlined.
He further endorsed that all the laws framed by the AJK Council prior to the 13th Amendment shall continue to be enforced until altered / amended by the assembly.
A new Article has been added through which all the assets, both moveable and immovable, including the bank accounts of the AJK Council have been vested in AJK government and all the employees of the AJK Council serving on regular basis shall stand transfer or shifted to the government of AJK forthwith on commencement of this Act 2018 with effect from June 1st, 2018.
Referring to the amendment of exceptional significance about the generation of funds in the public exchequer, Justice (Retd) Azam Khan said that through the amendment Section 37 of the former Act-1974 has been deleted under the 13th amendment. Elaborating, he recalled that under section 37 AJK council has constituted council consolidated funds.Under Article 37-A, Azad Jammu and Kashmirconsolidated fund will deal with all the revenues including the Income tax. Elaborating the articles related to the state levies, Justice Azam said that through the amendment in Sub Article 1 of Article 37-A, the word Taxes including the Income Tax, has been inserted. “It means all the taxes including income tax have become source of income of the government revenues. And these taxes shall form part of the AJK Consolidated funds, he added.
“In the 3rd schedule of constitution in part ‘A’, 32 items are entered which fall in legislative competence of theGovernment of Pakistan and Part ‘B’ of 3rd schedule contains 22 items under article 31 (4) the AJK Legislative Assembly, with the consent of the Government of Pakistan may legislative as and when required. Moreover, “Sub Article 5 of Article-5 provides that all taxes including the income tax shall be levied for the purposes of territories by Azad Jammu Kashmir by or under the authority of an Act of AJK Legislative Assembly”, he pointed out.
“There appears some ambiguity at one hand Article 37-A provides that all taxes including the income tax shall be the part of AJK consolidated fund and sub article 5 of Article 31 provides that all taxes including the income tax shall be levied by or under the authority of an act of the Assembly. Whereas on the other hand, sub article 3 of Article 31 provides that the Government of Pakistan shall have exclusive power to make laws with respect to any matter enumerated in Part ‘A’ of the 3rdschedule”, the retired CJ of AJK underlined. He further stated that Entry No. 29 of the 3rd schedule contains “Taxes on Corporation when read with entry No. 15 which contains Corporations except Corporations owned or Controlled by AJK and Cooperative /societies. When read with definition of Corporations Tax provided in Article 2 of the constitution, a contradiction appears between in Article 37 – A, 31 (5), Article 2, Entry No. 15 and 29 of Part A of the 3rd schedule”, Justice (Retd) Khan mentioned.
This ambiguity, the retired judge suggested, needs to be addressed by the AJK Legislative Assembly. “It can be easily said that AJK government and AJK Legislative Assembly have become more powerful after the of the 13th amendment, he concluded
