13th Amendment opens new vistas for empowerment of AJK govt: Azam Khan

MIRPUR (AJK), July 10 (APP)::Ex Chief Justice of Azad Jammu Kashmir, Justice ( R ) Muhammad Azam Khan has said that Azad Jammu Kashmir government and the State Legislative Assembly have become more powerful after the approval of the much-awaited amendment in formerly Act-1974 of the interim Constitution of Azad Jammu and 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 APP here Tuesday, Azam Khan 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, the
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 Kausar 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.
Justice (R) 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.
Azam said that 52 subjects were included in the Council’s legislative list, important among others were appointment of judges in superior judiciary, banking courts, banking tribunals, matters relating to electricity legislation. In respect of the Council’s legislative list, apart from legislative power, the AJK Council was empowered to exercise executive authority on the subjects numerated in the Council’s 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 paralyze the AJK government which led to strong resentment among the politicians and political parties of AJK against the bureaucracy and high-ups of AJK Council, Azam said.
The former Chief Justice continued by elaborating that right from 1975, the
political parties and Azad government have been demanding for abolishing the AJK Council and the previous assembly constituted a committee for making recommendations and 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 the 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
the Government of Pakistan
Through the 13th Amendment, all the fundamental rights enshrined in the Constitution 1973 of the Islamic republic of Pakistan have been included in AJK interim Constitution,
principals of policy appearing in the Constitution of Islamic Republic of Pakistan
have been included in the interim Constitution. He told that 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 also said that the right of fair trial and social justice has been included in social justice.
The former Chief Justice said that the matter of establishment Election Commission for AJK has also been clearly included
in the interim Constitution through the 13th Constitutional Amendment on the pattern of the Constitution of Pakistan.
He stated that this Constitution shall hence forth 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. He 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 have 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.
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 on the pattern of Pakistan. Through
the ACT 1974, the president was elected through the joint sitting. Through the 13th Amendment, he told that the legislative assembly is competent to elect the President.
Referring to the matter of acting Prime Minister, the 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 former CJ 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 Prime Minister. “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 elaborated 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.
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. He recalled that under section 37, the AJK Council has constituted the Council Consolidated Funds.Under Article 37-A, Azad Jammu and Kashmir Consolidated 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 the Constitution in part ‘A’, 32 items are entered which fall in legislative
competence of the Government 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, he 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.