MUZAFFARABAD: The Azad Jammu and Kashmir (AJK) High Court on Tuesday set aside Ordinance XIX of 2015 to the extent of Section 6-A, which provided for the appointment of an acting chief election commissioner (CEC).

The bench comprising Justice M. Tabassum Aftab Alvi, Justice Chaudhry Jahandad Khan, Justice Azhar Saleem Babar and Justice Mohammad Sheraz Kiani held that the office of an acting CEC could only be created through a constitutional amendment.

However, the bench also declared that the AJK Council’s advice for the CEC appointment was binding on the AJK president only when offered in response to a presidential summary for the purpose.

The decision came on a petition filed on Dec 31, 2015, by two PML-N lawmakers and a former vice chairperson of the AJK Bar Council. The petition challenged Ordinance XIX and the appointment thereunder of High Court Chief Justice Ghulam Mustafa Mughal as acting CEC.

The petitioners had sought directives to the government to fill the office of CEC on a regular basis in accordance with Section 50(1) of the AJK Interim Constitution Act 1974. The clause reads that the CEC shall be appointed by the president on the advice of the council, which is headed by the Pakistani prime minister.

Earlier in November 2015 the AJK president had returned the Council’s advice for the appointment of Mr Mughal as permanent CEC on the grounds that Mr Mughal’s name did not figure in the panel he had sent to the Council.

“As far as appointment of CEC on regular basis is concerned, advice tendered by the AJK Council on November 16, 2015, could have a binding effect on the President, had it been tendered on the summary moved by the President,” the bench observed in a 29-page judgment authored by Justice Babar.

The bench referred to an AJK Supreme Court dictum from October 2015 on a presidential reference that an advice could not be tendered by the Council on its own or in vacuum, but could be tendered when sought for by the president.

Therefore, the advice tendered by the Council on Nov 16, 2015, was in violation of Section 50(1) of the Interim Constitution Act 1974, the bench held.

It stated that, since the CEC’s primary function was to conduct free and fair elections, all political parties were stakeholders in the process.

Since parliamentary parties are represented in the Assembly, by leaders of the house and the opposition, the CEC appointment after consultation with the leader of the opposition gained more importance.

The bench directed that a panel of suitable candidates should be sent to the Council within a week.

The bench also seized the opportunity to point out that while a serving high court judge is eligible for the position, the court is already short of two judges and holds the additional responsibilities of the Shariat Court, a position it said should be kept in view while preparing summary for the appointment of new CEC.

Published in Dawn, January 13th, 2016