ISLAMABAD: The Ministry of Kashmir Affairs and Gilgit-Baltistan (GB) has raised questions over the validity as well as, implications of amendments in the Azad Jammu and Kashmir (AJK) interim constitution made by the AJK government beyond the federal cabinet’s approval.
Documents available with Pakistan Today reveal that the Ministry of Kashmir Affairs & Gilgit-Baltistan (MoKA&GB) has strongly opposed changes made by the government of AJK without seeking prior approval from the federal cabinet in addition to, forwarding the summary to the caretaker prime minister, seeking the formation of a committee to examine the validity and implications of the 13th Amendment.
“The MoKA&GB secretary may act as the secretary of this committee,” states the summary sent to the premier of Pakistan on 06-07-2018.
Well-informed sources have also revealed that the interim premier has constituted a committee under the convenorship of Federal Minister for Law and Justice.
They said that the government of AJK, without getting prior approval of the federal cabinet, has made changes in the AJ&K Interim Constitution Act, 1974 and attempted to put an end to the powers of the Government of Pakistan for the financial and administrative affairs, security, and imposition of emergency, appointment of judges, increase in net hydel profit of AJK.
It is relevant to note that the former Pakistan Muslim League-Nawaz (PML-N) government had introduced the 13th amendment in the interim constitution of AJK on May 31, 2018.
Moreover, instead of originating the bill either in the council or the assembly, the government of AJK presented it directly in the joint sitting of AJK council and legislative assembly on the same day and got it passed. The bill presented and passed by the government of AJK was beyond the approved bill of the cabinet. The following amendments were made in the constitution.
1) Altered provision of section 19(1) and enlarged the scope of executive authority of the government of AJK on the matters of federal government enumerated in Part-B of Third Schedule,
2) Altered provisions of section 31(2) and extended the scope of legislative authority of Legislative Assembly on the matters of federal government enumerated in Part-B of the third schedule.
3) Introduced new sub-section (5) in section 51-A and declared that the perks, privileges and allowances to the elected members of the Council and also salary, allowances and pensionary benefits of the employees of the Council will be borne by the government of AJ & K from its consolidation fund, and
4) Shifted the matters of “salaries, allowance and privileges of the members and including salaries and pension payable to an employee of the council” from Part-A to Part-B of Third Schedule. This was entry No. 29 as per approved draft of the Cabinet.
Besides the above, significant amendments have also been made by the government of AJK, which were neither considered nor approved by the cabinet e.g transforming AJK Constitution Act into a full-fledged constitution (section 1); enhancing the membership of Legislative Assembly from 49 to 53; creating a heavy burden on account of payment of net hydel profit and royalty etc on government of Pakistan (section 5-C); acquiring sole authority to approve or disapprove an imposed emergency in times of war or external aggression (section 53), and putting embargo on dissolution of assembly (section 54).
In the Secretariat of AJK Council, 184 employees are Pakistani citizens and 23 employees are AJK state subjects. On the basis of ratio decidendi of the judgment of AJK’s apex court (1996 MLD 1377), MoKA&GB observed in its summary dated May 28, 2018, that Pakistani citizens do not have any protection of fundamental rights under the AJK Interim Constitution Act, 1974.
Meanwhile, several writ petitions have been filed in Islamabad High Court (IHC). Irrespective of the fate of these writ petitions on account of jurisdictional defects, it has been assured that sections 31(4) and 19(1) of 13th Amendment are violative of articles 97 & 98 of the Constitution of Islamic Republic of Pakistan respectively. This issue also needs to be re-examined.
For implementation of 13th Amendment, MoKA&GB set up a committee/sub-committee(s). The minutes of the meeting depicts that the issues require consideration at a higher/political level.
Moreover, the Council in amended form having being assigned the advisory jurisdiction has several important subjects including defence, security, external affairs, Kashmir issue and nuclear energy under the subordination of Prime Minister of Pakistan/federal government, who is the chairman of the Council.
It is pertinent to mention here that said amendments in the interim constitution act of AJK were challenged in Islamabad High Court (IHC) by Barrister Amar Sehri and IHC sought a reply from Attorney General and MoKA&GB on the matter.
The petitioner has advocated that amendments were against the interests of Pakistan in AJK and it could cause damage to the struggle of Kashmir’s independence from Indian clutches.
