MUZAFFARABAD: Three senior lawyers from the Azad Jammu and Kashmir (AJK) capital have filed a petition in the region’s high court, challenging 12 seats for Pakistan-based refugees from Indian-occupied Kashmir in the AJK Legislative Assembly.

Advocates Karam Dad Kan, Raza Ali Khan and Raja Amjad Ali Khan have called for the annulment of Section 2 (ii, iii) of the AJK Legislative Assembly Ordinance 1970, whereby six seats of the AJK Legislative Assembly are reserved for refugees from Kashmir Valley and as many for refugees from Jammu.

“This section is ultra vires of various constitutional provisions and conventions, Islamic injunctions and has been issued to frustrate the very intention of the constitutional command, and is prejudicial for the security of the federation of Pakistan and Azad Kashmir,” they said.

The petitioners said that the promulgation of the AJK Interim Constitution Act 1974 and its Section 31(3), read with Section 19 expressly excluded the jurisdiction of the AJK government and the AJK Council in matters related to external affairs of the state, including the Kashmir dispute, and water and ceasefire line disputes.

They said that the Kashmir issue is the subject of the federation of Pakistan alone, and the AJK government, assembly, nor the AJK council has the power to perform any functions in this regard.

Furthermore, they said that the symbolic representation of people from Indian-held Kashmir through those who migrated from there to Pakistan, was in utter disregard of the constitutional scheme and the security of Pakistan and AJK.

The petitioners further pointed out that AJK has been defined in the constitution as a territory and not as a state, and added that according to the definition and AJK’s constitutional and administrative setup, AJK it was neither a de-jure nor a de-facto state but a territory.

In this situation, they said representation of Pakistan based immigrants from Indian-occupied Kashmir was not permissible under the constitution.

They contended that while the interim constitution guaranteed the fundamental rights of state-subjects, reciprocally it also imposed some restrictions and obligations for the exercise of these rights.

In this regard, they said only those state subjects permanently residing within territory where the jurisdiction of the AJK government could be exercised, and paying taxes, directly or indirectly, to the AJK exchequer could claim their fundamental rights as enshrined in the constitution.

“In fact the refugees settled in Pakistan are citizens of Pakistan, enjoying all their fundamental, legal and other citizenship rights there,” the petitioners said, adding that, “They are taxpayers in Pakistan, voters for national and provincial assemblies, whereas in AJK they have never paid any taxes nor any other liability as revealed by the budget books.”

They said that the annual budgets of the AJK government and council were prepared from the taxes levied on those residing within state territory, and their allocation to those residing outside the state territory was, among other things, also against the celebrated principle of law that there would be no representation without taxation.

The petitioners pointed out that the status of ‘state subjects’ had been defined in a notification dated April 20, 1927 and laws enforced in the former-princely state of Jammu and Kashmir from time to time made it clear that those state subjects who were not permanently residing within the territory of state were not entitled to claim internal rights guaranteed to those who were permanently residing within the state.

Therefore, the refugees settled in Pakistan did not possess the right to form a government in the territory of AJK through adult franchise without residing in the state territory. Similarly, refugee MLAs did not have the authority to get funds for development work outside AJK territory.

The petitioners have also said that the government and AJK council should not be able to allocate any funds to be spent outside AJK territory in the upcoming budget.

The full bench, comprised of Chief Justice Ghulam Mustafa Mughal, Justice M. Tabassum Aftab Alvi and Justice Azhar Saleem Babar, has sought comments from respondents by June 26.

Published in Dawn, June 15th, 2014