By: Zulfiqar Ali (Kashmir Investigation Team)
MUZAFFARABAD (Kashmir English): AJK elections: On January 13 this year, the tenure of the Chief Election Commissioner (CEC) of Azad Kashmir came to an end, leaving the position vacant. This is despite the fact that general elections are due in June or July next year.
It has now been over four months, yet the Prime Minister of Azad Kashmir has neither initiated any process for the appointment of the Chief Election Commissioner nor consulted the Leader of the Opposition in this regard.
According to legal experts, keeping the position of the Chief Election Commissioner vacant is a clear violation of the constitution.
They state that under Article 50 of the Constitution of Azad Kashmir, the Prime Minister, after consulting the Leader of the Opposition in the Legislative Assembly, finalises the names of potential candidates and sends them to the Chairman of the Kashmir Council, who holds the position by virtue of being the Prime Minister of Pakistan.
As per the constitution, the Chairman of the Azad Jammu and Kashmir Council selects one of the proposed names and sends it to the President of Azad Kashmir for appointment. The President then appoints the selected individual as the Chief Election Commissioner.
Legal experts underline that the constitution explicitly states the position cannot be left vacant.
Article 50, Clause 9 specifies: “If the office of the Chief Election Commissioner falls vacant, or if the Commissioner is absent for any reason or unable to perform duties, then the senior-most member of the Commission, who was formally designated at the time of appointment, shall act as the Chief Election Commissioner for a maximum of six months.”
This, according to experts, makes it abundantly clear that the post cannot remain unfilled.
Political analysts suggest that one reason for the Prime Minister of Azad Kashmir delaying the appointment could be his desire to appoint a person of his own choice as the Chief Election Commissioner, which he is currently reluctant to disclose.
Another possible reason, according to analysts, could be the anticipation of pressure to hold early elections due to prevailing uncertainty in the region. In such a case, the government may use the delay in the appointment of the Chief Election Commissioner as an excuse to avoid early elections.
Legal experts note that there is no penalty for this constitutional violation, leading the government to believe that delaying the process will not result in any consequences.
Due to the delay in the appointment of the Chief Election Commissioner, Pakistan has been compelled to intervene in the interest of protecting public welfare.
In light of the current situation, Prime Minister Shehbaz Sharif has constituted a high-level committee headed by the Federal Minister for Law, with members including the Chief Secretary of Azad Kashmir and the Secretary of the Ministry of Kashmir Affairs.
This committee will take necessary steps regarding the appointment of the Chief Election Commissioner.
This is not the first time the position of Chief Election Commissioner in Azad Kashmir has remained vacant for an extended period. The three-year tenure of former Chief Election Commissioner Justice Ghulam Mustafa Mughal ended on 19 February 2019.
On the same day, the then Pakistan Muslim League (N) government appointed the senior member of the Election Commission, former Justice Abdur Rasheed Sulehria, as Acting Chief Election Commissioner for six months. His tenure ended on 15 October 2019.
The post remained vacant for three months until 14 January 2020, when former Justice Abdur Rasheed Sulehria was appointed as the permanent Chief Election Commissioner for a five-year term, roughly one and a half years before the general elections.
Similarly, during the Pakistan People’s Party (PPP) government, the position of Chief Election Commissioner remained vacant from 15 April 2015 to 17 February 2016.
Before the appointment, the PPP government in Azad Kashmir refused to act on the advice of the Chairman of the Azad Jammu and Kashmir Council, in violation of the constitution. However, following the Supreme Court’s intervention, compliance was enforced after three months.
On 16 November 2015, the Chairman of the Azad Jammu and Kashmir Council sent advice to the President of Azad Kashmir to appoint High Court Chief Justice Ghulam Mustafa Mughal as Chief Election Commissioner.
Prior to this, on 22 October, the PPP government in Azad Kashmir issued an amendment ordinance, creating the new position of Acting Chief Election Commissioner by amending the Chief Election Commissioner (Terms and Conditions) Act, 1992.
A day earlier, the Supreme Court of Azad Kashmir had opined that the Legislative Assembly of Azad Jammu and Kashmir has the authority to amend the terms and conditions of the Chief Election Commissioner.
Ignoring the advice of the Chairman of the Azad Jammu and Kashmir Council, the Azad Kashmir government, on 29 December 2015, used the newly amended law to appoint High Court Chief Justice Ghulam Mustafa Mughal as Acting Chief Election Commissioner. However, he did not take the oath of office.
Meanwhile, the Pakistan Muslim League (N) challenged the amendment in court, seeking its annulment and the appointment of a permanent Chief Election Commissioner in light of the constitution and the advice of the Chairman of the Azad Jammu and Kashmir Council.
On 25 January, the Azad Kashmir Supreme Court ruled that “the November recommendation in favour of Chief Justice Mughal by the Kashmir Council is legal, valid, and authoritative.”
Just three days after this ruling, the PPP government in Azad Kashmir amended the Chief Election Commissioner (Terms and Conditions) Act to render any sitting judge ineligible for appointment as Chief Election Commissioner.
The Pakistan Muslim League (N) subsequently filed a contempt of court petition for non-implementation of the Supreme Court decision.
Understanding the court’s stance, the PPP government-appointed Chief Justice Ghulam Mustafa Mughal as the permanent Chief Election Commissioner on 11 February, in accordance with the advice of the Chairman of the Azad Jammu and Kashmir Council.
This entire scenario illustrates that successive governments in Azad Kashmir have prioritised their own preferences over constitutional compliance, resulting in continued uncertainty in the region.
