MUZAFFARABAD: The Azad Jammu and Kashmir (AJK) High Court on Thursdaysuspended the operation of a notification stipulating process for a by-election in Mirpur scheduled for Nov 24.

On Oct 7, 2019, the AJK Election Commission Secretariat had issued a notification for holding a by-election in LA-III Mirpur-3 after the disqualification of cabinet member Chaudhry Mohammad Saeed by the AJK Supreme Court under contempt of court charges on Sept 25 - a day after Mirpur was struck by a devastating earthquake.

The notification was challenged by advocatesSyed Ahsan Ali Hamdani and Waleed Kashifin the high court on Oct 29, through their counsel Fayyaz Ahmed Janjua, alleging that the process for by-election wasagainst the spirit of constitutional law, rules and various judgments of the superior courts.

Theoffice ofthe chief election commissioner (CEC) in AJK had been vacant since Oct 15 and the constitutional requirement that electionselections should be conducted under the supervision of the CEC was ignored in case of Mirpur by-poll, they contended.

According to legal sources, the AJK election commission had sought an ‘opinion’ from the Supreme Court about whether it could proceed with the process for the by-election in the absence of a CEC as enunciated in Article 50.

Article 50 governs the composition of the election commission.

In response, an assistant registrar (judicial) of the apex court had written a letter to the election commission wherein he had quoted remarks by Chief Justice Chaudhry Mohammad Ibrahim Zia that “the order of the court could neither be held in abeyance due to non-appointment of CEC nor Article 25 of the constitution could be infringed upon.”

“Since two members of election commission were holding their office, the commission was bound to discharge its functions in accordance with the constitution,” the apex court official had further quoted Justice Zia as saying.

Under Article 25(3) of the AJK Constitution, when an assembly seat becomes vacant not later than 120 days before the expiry of the assembly’s term, an election to fill the seat shall be held within 60 days from the occurrence of the vacancy.

The petition by Mr Hamdani and Mr Kashif was dismissed by a high court bench, comprising Justice Azhar Saleem Babar and Justice Raja Shiraz Kiani, on Nov 4 on the basis of Justice Zia’s remarks quoted in assistant registrar’s letter to the election commission.

The dismissal was challenged by the petitioners in the apex court, where a division bench comprising Justice Raja Saeed Akram Khan and Justice Ghulam Mustafa Mughal, accepted the appeal and held that the letter from the apex court did not stop the high court from addressing this issue under the law.

The apex court bench remanded the case to the high court where it was heard by the same bench that had earlier dismissed the petition.

Meanwhile, another petition for the cancellation of the by-election was also filed in the high court by Raja Tasleem Arif, an independent candidate who had pulled out of the fray.

Mr Arif, who was represented by advocate Mushtaq Ahmed Janjua, had maintained that the by-election was not possible in the prevailing situation because the government had declared Mirpur as a ‘calamity hit area’.

Consolidating both petitions, the high court bench ordered suspension of the operation of the Oct 7 notification for violating Article 50 of the AJK constitution.

Published in Dawn, November 22nd, 2019