Brief of the Writ Petition No. 122/1992
Filed on 03 December 1992 in the High Court of Azad Jammu and Kashmir

A judgement was announced on 02 April 1999.

1. Writ Petition under Section 44 of the Azad Jammu and Kashmir Interim Constitutional Act 1974 praying therein for the issuance of an appropriate writ directing the respondents to appoint a Plebiscite Advisor to advise the Government in relation to holding of plebiscite in the State of Jammu and Kashmir, in terms of UNCIP Resolutions as required by Section11 of the Constitution.

There are five respondents. Four impleaded by JKCHR and the 5th by the Government of Azad Jammu and Kashmir.

2. That the Constitution in its Preamble has Chartered the priorities and set the principal ‘Declaration of Intent’. Government of Azad Jammu and Kashmir, is a ‘provisional establishment’, ‘to provide for the better Government and Administration of Azad Jammu and Kashmir until such time as the status of Jammu and Kashmir is determined ‘…..’in accordance with the freely expressed will of the people of the State through the democratic method of free and fair plebiscite under the auspices of the United Nations as envisaged in the UNCIP Resolutions adopted from time to time’.

3. That an aversion to the Constitutional priorities, under Section 11, may safely be construed that other institutions – Legislature, Executive and Judiciary, may have remained ‘wanting’ in constitutional and legal sanctity/authority.

4. That the word ‘May’ acquires a mandatory meaning, and especially where the statute concerns the rights and interests of the public, or where third persons have a claim de jure that a power shall be exercised, or whenever something is directed to be done for the sake of justice or public good, or is necessary to sustain the statute’s constitutionality.

5. That the circumstances in the state of Jammu and Kashmir, and more so the loss of a generation in Jammu and Kashmir, are as such that they create a ‘duty’ under Section 11 and make it mandatory. The circumstances are at a point and boil that even an option under ‘May’ is converted into a ‘duty’.

6. That a non-exercise of a ‘Discretion’ – concerning rights and interests of public is an abuse of ‘Discretion’.

7. That a dis-use of Discretion after using it once is also an abuse of Discretion and the authority has failed on the point of ‘reasonableness’.

8. That a prayer by JKCHR and a direction by the Court under Section 11 is not repugnant to the constitutional partnership between Azad Kashmir and Pakistan.

9. That a direction under Section 11 would not interfere in any shape or manner with the specifics under Sections 19 (2), 31 (3) and 56 of the Constitution.

10. That a direction under Section 11 shall have to be understood, in the rationale of Section 257 of the Constitution of Pakistan.

11. That since the UN Resolution accepts the Government based at Srinagar as the legitimate Government of Jammu and Kashmir, for the purposes of the implementation of UN Resolutions and the formal appointment of a Plebiscite Administrator, who of course shall be a nominee of the UN Secretary General, Section 11, creates a duty of first priority for the Government of Azad Jammu and Kashmir, around the ‘transfer of the free will’ of the people of Kashmir.

12. That Section 11 becomes operative and creates a duty concurrently with the cease fire and the appointment of UN

Observers (UNMOGIP).

For any further clarification or other arguments advanced please email info@jkchr.com

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