At long last, AJK gets a Chief Election Commissioner

AJK SC CJ (left) administers oath to CEC

Azad Jammu and Kashmir (AJK) High Court Chief Justice Ghulam Mustafa Mughal took oath on Friday as the AJK Chief Election Commissioner (CEC), putting an end to a protracted controversy as well as uncertainties linked with this constitutional office vacant since April last year.   

The new CEC, who was administered oath by AJK Supreme Court Chief Justice Muhammad Azam Khan, faces a daunting task of making foolproof electoral arrangements, including preparation of flawless voters lists, within a short span of time, as the sitting Assembly completes its five year term on July 24.

According to Section 22 (4) of the AJK’s Interim Constitution Act 1974, general elections to the Legislative Assembly are required to be held within a period of 60 days immediately preceding the day on which the term of the Assembly is due to expire… and the result of the election shall be declared not later than fourteen days before that day.

In view of the said section, experts say, general elections can be conducted at any day between May 24 and July 10.

 “Yes indeed there is very little time (left) to elections and I have accepted this position as a challenge, in the national interest,” Justice Mughal told reporters at the swearing-in ceremony.

When his attention was drawn towards objections to the existing electoral rolls and opposition parties’ demand for fresh computerised lists, he said: “We have to take decision on this issue that how to make these lists up-to-date. There won’t be any problem in AJK but it definitely is a real issue in the constituencies located in Pakistan.”

It may be recalled that 29 out of the 41 constituencies of AJK Assembly are located within the AJK territory, and the rest in the four provinces of Pakistan. Six of those are reserved for the refugees from India-held Kashmir Valley and as many for the refugees from India-held Jammu and ‘others.’

To a question, the CEC said he would soon summon a meeting of political parties to devise a code of conduct.

“Whosoever violates it will be disqualified,” he warned.  

The appointment of Mr Mughal was notified by the AJK government on February 11 in accordance with the advice of the AJK Council tendered on November 16, 2015.

Under Section 50 (1) of the Interim Constitution Act, the AJK CEC is appointed by the AJK President on the advice of the AJK Council, headed by the prime minister of Pakistan.

According to the law department notification, Justice Mughal will hold the office of CEC in addition to his existing duties for a term of three years or till his retirement, if that comes earlier.

It may be recalled here that the appointment of CEC had seen prolonged wrangling between the AJK government and the AJK Council and main opposition PML-N in the courts of law, after the office became vacant in April last year.

On November 16, the AJK Council had given advice for appointment of Justice Mughal as permanent CEC. Instead of following the advice, the AJK government went on to amend the Chief Election Commissioner (Terms and Conditions) Act, 1992 through Ordinance XIX of 2015, wherein Section 6-A was inserted to create room for appointment of acting CEC.

After amending the law, the government appointed Justice Mughal as acting CEC on December 29, 2015. However, he did not take oath of that position.

In the meanwhile, PML-N lawmakers Chaudhry Tariq Farooq and Dr Najeeb Naqi challenged Section 6-A of the Ordinance XIX of 2015 in the High Court and prayed for modification in the December 29 notification to bring it in conformity with Section 50 (1) of the Constitution.

Accepting their petition, the High Court declared section 6-A ultra vires of the Constitution, but did not grant petitioners’ request for appointment of Justice Mughal as permanent CEC in accordance with the Council’s November 16 advice.

Instead, 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 verdict was challenged in three separate appeals in the AJK Supreme Court, which disposed them off on January 25, and declared in its short order that the November 16 advice is “legal, valid and holds the ground.”

Once again, instead of acting upon the decision, the government amended the Chief Election Commissioner (Terms and Conditions) Act 1992 on January 28, rendering a sitting judge ineligible for appointment as CEC.

It was after that step, the PML-N lawmakers filed an application in the Supreme Court for contempt of court proceedings against the government.

On February 9, the apex court took strong exception to the non-implementation of its judgment, hinting that it could take punitive measures as prima facie the conduct of the government constituted a case for contempt of court proceedings.

The court also summoned law minister, chief secretary and law secretary to make personal appearance before it.

Sensing the mood the Supreme Court, the government presented the notification about the appointment of Justice Mughal as CEC before it on Thursday.

However, nevertheless, CJ Mughal was reluctant to take oath until a detailed judgment by the apex court on the issue with particular reference to the amended law.

On Thursday the Supreme Court observed that the amended law (rendering a sitting judge ineligible to be appointed as CEC) was neither in existence on November 16, when the advice was sent by the Council nor on January 25, when this court had declared the advice legal and valid, and declared that a piece of subordinate legislation could not nullify its judgment.

…. Tariq Naqash