MUZAFFARABAD: The Azad Jammu and Kashmir (AJK) Supreme Court on Monday declared that the advice issued by the AJK Council in November last year for appointment of permanent Chief Election Commissioner (CEC) is valid and legal and (therefore) holds ground.

“The advice issued by the AJK Council on November 16, 2015 about an eligible person who qualifies to be appointed as CEC under the CEC (terms and conditions) Act 1992 is a valid advice,” declared the full court, led by Chief Justice Mohammad Azam Khan.

Under Section 50 of the AJK Interim Constitution Act, 1974, the CEC is appointed by the AJK president on the advice of the AJK Council, headed by the prime minister of Pakistan.

On September 7, 2015, the AJK Council issued advice for the appointment of retired Justice Munir Ahmed Chaudhry, a former Judge of the AJK High Court, as CEC.

The AJK government did not comply with the advice, and instead sought the opinion of the AJK Supreme Court on the matter through a presidential reference. On October 21, 2015, the AJK apex court opined that the AJK Assembly and not the AJK Council was competent to legislate on the terms and conditions of CEC.

On November 16, 2015, the AJK Council withdrew the advice relating to the appointment of Justice Munir and issued a fresh advice for appointment of Justice Ghulam Mustafa Mughal, Chief Justice High Court, as CEC.

The AJK government did not follow the second advice and instead amended the CEC (terms and conditions) Act, 1992 through Ordinance XIX of 2015, wherein Section 6-A was inserted to create room for appointment of acting CEC.

Under the amended law, Justice Mughal was appointed as acting CEC through a notification issued on December 29, 2015.

Mr Mughal declined to take oath and in the meanwhile Chaudhry Tariq Farooq and Dr Najeeb Naqi, PML-N lawmakers, and Raja Sajjad Ahmed, a former vice-chairman AJK Bar Council, challenged Section 6-A of the Ordinance XIX of 2015 in the High Court. They prayed for modification in the December 29 notification to bring it in conformity with Section 50 of the Constitution.

Accepting their petition, the High Court declared section 6-A ultra vires of the Constitution. However, instead of granting their request for appointment of Justice Mughal as permanent CEC in accordance with November 16 advice by the Council, the High Court observed that the President should send a fresh penal of eligible persons to the Council after consultation with the Leader of the House and the Leader of Opposition.

The High Court judgment was challenged in three separate appeals, one by the AJK Council, other by Mr Farooq and others and the third by the AJK government.

On Monday, the apex court disposed of all three appeals and announced its short order, authored by the CJ, in Mirpur.

“Under Section 50 of the Constitution the CEC has to be appointed by the President on the advice of the Council and section 6-A of the Ordinance XIX of 2015 provides appointment of CEC without the advice of Council, and therefore section 6-A offends Section 50 of the Constitution,” it said.

“Since we have drawn the conclusion that the advice issued by the Council on November 16, 2015 is valid and legal and holds the field, therefore, acting CEC cannot be appointed in the presence of the advice for appointment of permanent CEC,” the apex court held.

Published in Dawn, January 26th, 2016