MUZAFFARABAD: Two written statements were filed in the Azad Jammu and Kashmir (AJK) High Court on Thursday by two attorneys, on behalf of the respondents in a petition on the appointment of the AJK chief election commissioner (CEC).

Barrister Hamayun Nawaz submitted a written statement on behalf of the AJK government and AJK law department, and Additional Advocate General Chaudhry Shaukat Aziz submitted a statement on behalf of the AJK president and Legislative Assembly.

One of the attorneys told Dawn that their statements relied mainly on the opinion of the AJK Supreme Court that the AJK Assembly was competent to legislate on the terms and conditions of the CEC.

In both statements, the respondents contended that the advice of the AJK Council, sent in November 2014 for the appointment of High Court Chief Justice Ghulam Mustafa Mughal as permanent CEC was not implementable ‘for being illegal’, because the same advice had not been sought by the AJK president, “as visualised by Section 50 of the AJK Interim Constitution Act 1974”.

Section 50 states that the AJK CEC shall be appointed by the AJK president on the advice of the AJK Council, headed by the prime minister of Pakistan.

Counsel argued that it was binding on the Council to send advice after it was sought from it, in favour of anyone out of the panel sent by the AJK president.

They said this was why the AJK president had returned the Council’s advice on Dec 31, 2015, and asked the Council to send a fresh advice, in favour of anyone from the already submitted three member panel.

In their statements, counsel for the respondents called the petition “proxy litigation” and maintained that the petitioners – two PML-N lawmakers and a senior lawyer – had no locus standi to file it, as they were not aggrieved, and had no personal or legal constitutional right infringed by the appointment of the acting CEC.

They said the petition should have been filed by the Council or by the acting CEC.

The final hearing of the petition will be held on Jan 8.

Legal sources said the bench would have to determine whether the Council could send an advice on its own or only after receiving a request form the AJK president, and whether the Council’s advice was binding on the president or selection from the president’s panel was binding on the Council.

The court will also decide whether a stopgap arrangement for a constitutional office can be made through sub-constitutional legislation, as done by the AJK government in creating room for the appointment of the acting CEC through an ordinance, or only through a constitutional amendment.

Published in Dawn, January 8th, 2016