MUZAFFARABAD, Oct 1: The courts are jealous in assuming and extending their jurisdiction under the principles of judicial activism but it should not subvert the express provisions of the constitution. They should assume the jurisdiction only in an ambiguous or anomalous position of law by resorting to their inherent powers to fill the vacuum, but where the provisions of law are clear and parties also admit the facts which leave no ambiguity, it would be adventurism and transgression to extend or assume such jurisdiction.

This was observed by AJK High Court Chief Justice Syed Manzoor Hussain Gillani, while dismissing a petition whereby the election of Sardar Mohammad Sawar Khan as member of the AJK Council was challenged.

The petitioner, Sardar Nasim Ahmed Sarfraz, had maintained that Sawar Khan was holding the office of Kashmir Liberation Cell (KLC) secretary at the time when he filed nomination papers and was declared elected. Since it was a full-time public office remunerated by salary, and was an office of profit in the service of AJK, the respondent could neither be a candidate nor could hold the membership of the AJKC, said the petition instituted on June 27.

The counsel for the respondent contended that the petitioner could not be allowed to challenge the election after having failed in raising the objection in time.

He further contended that the disqualification, if any, attached to the respondent to be a candidate and now member (of the AJKC) for being secretary KLC was removed by an ordinance promulgated on Sept 22, 2000, while the election was held on Sept 30, 2000.

He also told the court that the petition was filed more than eight months after the election, and, therefore, it was hit by the rule of laches.

In his decision, the CJ held that, in view of the constitutional and admitted factual positions, the respondent was not disqualified at the time of election, because the office of KLC secretary was excluded from the definition of service of Azad Kashmir through the Ordinance which stood repealed on Jan 22 due to expiry of time. Disqualification, if any, attached to him arose after Jan 22 and, therefore, it was a “post-election matter,” the CJ held referring to section 21, sub-section 4-B, of the AJK’s interim constitution. According to the clause, if the disqualification was incurred after election, the question could be resolved by the chief election commissioner only on reference by the AJKC chairman (chief executive of Pakistan).