PM Khan forms body to examine changes in AJK interim constitution

  • As head of the eight-member special committee, Law Minister Farogh Naseem asked to submit a report within 30 days, after detailed deliberations
  • Kashmir Affairs Ministry raises questions over validity and implications; calls 13th Amendment beyond approval of the federal cabinet

ISLAMABAD: Prime Minister Imran Khan has constituted a committee to examine the validity and implications of the limiting Pakistan’s role through the interim constitutional amendment by the state government of Azad Jammu Kashmir (AJK) beyond the approval of the federal cabinet, according to sources.

The Azad Jammu Kashmir Interim Constitution (Thirteenth Amendment) Act, 2018, with reference to the changes made by the state government beyond the approval of the federal cabinet, they said. Taking serious notice of the changes made in the AJK interim constitution by the state government, Prime Minister Khan constituted an eight-member committee under Federal Minister for Law and Justice Dr Farogh Naseem.

The Attorney General of Pakistan or his representative, secretaries of the Cabinet Division, Law and Justice Division, Gilgit-Baltistan & Kashmir Affairs, AJK chief secretary, and secretaries of the AJK Law, Justice and Parliamentary Affairs Department and the Human Rights Department will be members of the committee.

“The committee shall finalise its deliberations and submit a report within 30 days of issuance of the notification of its constitution,” said a letter signed by PM’s Secretary Muhammad Azam Khan, dated Sept 13, 2018. It is relevant to mention here that the Ministry of Kashmir Affairs has raised questions over the validity as well as implications of the amendments in the AJK interim constitution made by the state government what the officials believe beyond the approval of the federal cabinet.

The documents revealed that the Ministry of Kashmir Affairs had strongly opposed the changes made by the Kashmiri government without seeking prior approval from the federal cabinet in addition to forwarding the summary to then caretaker prime minister, seeking the formation of a committee to examine the validity and implications of the 13th Amendment.

The Kashmir Affairs secretary may act as the secretary of this committee, according to the summary sent to the prime minister on July 6, 2018. The sources also revealed that the AJK government, without getting prior approval of the federal cabinet, had made changes in the interim constitution (Act 1974) and attempted to put an end to the powers of the Pakistan government for the financial and administrative affairs, security, and imposition of emergency, appointment of the judges and increase in net hydel profit.

It is relevant to note that the outgoing government of the Pakistan Muslim League-N (PML-N) had introduced the 13th Amendment in the interim constitution on May 31, 2018. Instead of originating the bill either in the Kashmir Council or the Legislative Assembly, the AJK government presented it directly in the joint sitting of the Kashmiri parliament on the same day and got it passed. The bill presented and passed by the AJK government was beyond the approved bill of the cabinet. The following amendments were made in the interim constitution.

1) Altered provision of Section 19(1) and enlarged the scope of executive authority of the AJK government on the matters of the federal government enumerated in Part-B of the third schedule.

2) Altered provisions of Section 31(2) and extended the scope of the legislative authority of the (AJK) Legislative Assembly on the matters of the federal government enumerated in the Part-B of the third schedule.

3) Introduced new Sub-Section (5) in the 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 AJK government from its consolidation fund.

4) Shifted matters of the salaries, allowance and privileges of the members and including salaries and pension payable to an employee of the council from the Part-A to the Part-B of the third schedule. This was entry No 29 as per approved draft of the cabinet.

Besides these changes, significant amendments have also been made by the AJK government, which were neither considered nor approved by the cabinet e.g transforming the AJK Interim Constitution into a full-fledged constitution (Section 1); enhancing the membership of the Legislative Assembly from 49 to 53; creating a heavy burden on account of the payment of the net hydel profit and royalty etc on the Pakistan government (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 the assembly (Section 54).

In the AJK Council Secretariat, 184 employees are the Pakistani citizens and 23 employees are the AJK state subjects. On the basis of the ratio decidendi of the judgment of the AJK Supreme Court (1996 MLD 1377), the Ministry of Kashmir Affairs observed in its summary dated May 28, 2018, that the Pakistani citizens do not have any protection of the fundamental rights under the AJK Interim Constitution of 1974.

On the other hand, several writ petitions have been filed in the Islamabad High Court (IHC). Irrespective of the fate of these writ petitions on account of the jurisdictional defects, it has been assured that the sections 31(4) and 19(1) of the 13th Amendment are violative of the articles 97 and 98 of Pakistan’s Constitution of 1973 respectively. This issue also needs to be re-examined.

For implementation of the 13th Amendment, the ministry 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 the government in Islamabad or the Pakistani prime minister who is the chairman of the council.

It is pertinent to mention here that the amendments in the AJK interim constitution were challenged in the Islamabad High Court by Barrister Amar Sehri and the court sought a reply from the Attorney General of Pakistan and the Ministry of Kashmir Affairs on the matter. The petitioner has advocated that the amendments were against the interests of Pakistan in the (AJK) state and it could cause damage to the independence movement of the Kashmiri people.