Legal fraternity concerned over delay in appointment of permanent CJs in AJK

The Legal fraternity in Azad Jammu and Kashmir (AJK) has expressed serious concerns over the alleged “inordinate” delay on the part of prime minister of Pakistan in furnishing his advice for permanent appointment of both chief justices (CJ) in AJK’s superior courts, it has been learnt.

The non-appointment of permanent CJs is not only a violation of the AJK Constitution but it’s also hampering many important judicial functions, it believes. 

Under Article 42(4) of the AJK Constitution, the AJK president appoints the Supreme Court CJ on the advice of the AJK Council and under Article 43(2-A) the high court CJ is appointed by the president on the advice of the AJK Council and after consultation with the apex court’s CJ.

Headed by the prime minister of Pakistan, the council comprises six elected members from AJK and as many unelected members nominated by the chairman from amongst the federal cabinet. 

According to the AJK Constitution, when the office of the CJ is vacant for any reason, the AJK president can appoint the senior most of the other judges to act as CJ. 

Interestingly, currently both courts are being run by acting CJs. Justice Raja Saeed Akram Khan is acting CJ in apex court since April 1, 2020 following the retirement of his predecessor Chaudhry Ibrahim Zia and Justice Azhar Saleem Babar is acting CJ in high court since Nov 16 last year after the nullification of the basic appointment of his predecessor M Tabassum Aftab Alvi, who was otherwise slated to retire on Feb 19, this year, on attaining superannuation. 

On Feb 17, the appeal of Mr Alvi against his dismissal was also turned down by the apex court. 

Official sources told this scribe that the summaries for [advice in favour of] the appointment of Justice Babar and Justice Khan as permanent CJs were sent by the AJK president to the office of chairman AJK Council in February and March, respectively, but so far there had not been any response. 

This, the legal fraternity in AJK believed, not only amounted to “brazen and perpetual violation” of the AJK Constitution but had also held back many judicial functions particularly consultation by the permanent CJs for the due appointments in superior courts.   

According to a dictum laid down by the Supreme Court of Pakistan in the famous al-Jihad Trust case, which was also declared applicable to AJK’s judiciary by the AJK Supreme Court in Younus Tahir case, “the permanent vacancies occurring in the office of the CJ and judges normally should be filled in immediately not later than 30 days, but a vacancy occurring before the due date on account of death or for any reason should be filled in within 90 days, on permanent basis.”

“Since interpretation of constitutional points by the superior courts is considered to be the part of the Constitution, the inordinate delay in appointment of permanent CJs is therefore a brazen violation of the Constitution,” maintained Chaudhry Muhammad Ilyas, vice chairman of the AJK Bar Council, in a statement. 

Several other legal community leaders including Khawaja Manzoor Qadir and Raja Asif Bashir, presidents, respectively, of the AJK supreme and high court bar associations, accused the AJK Council of “shirking from its constitutional and legal obligations by not sending the advice for appointment of permanent CJs."

“It seems to be a deliberate attempt to create constitutional vacuum in AJK which has caused serious concern among the legal circles in this territory,” they said.  

Apart from the AJK lawyers, Abid Saqi, vice chairman of Pakistan Bar Council, had also expressed concern over delay in appointment of permanent CJs in AJK.  

“Constitutional offices cannot be run on ad-hoc basis. This weakens the institutions, compromises their freedom and independence and subsequently hampers the process of dispensation of justice,” he said in a statement. 

Legal sources pointed out the institution of Service Tribunal had also become non-functional due to the non-appointment of permanent CJs, as the appointment of its chairman and member is made by the president after consultation with the permanent CJs.

The process for appointment against two vacant post of judges in superior courts could not be initiated as well, until the appointment of the permanent CJs, as according to the dictum laid down in al-Jihad Trust case, the mandatory constitutional requirement of consultation is not fulfilled by consulting an acting CJ, the sources added.

Ershad Mahmud, an Islamabad based office bearer of Pakistan Tehreek-e-Insaf, maintained that Prime Minister Imran Khan believed that since the word “council” and not “chairman” had been used in the Constitution he alone could not furnish advice as chairman. 

“After consulting the federal law division, the prime minister had convened the sitting of Council members in the month of March on this issue but it had to be postponed due to the outbreak of Covid-19 in the country,” he said. 

However, a senior AJK official, who didn’t want to be named, claimed that the previous chairmen had exercised their authority in this regard themselves instead of "discussing and deciding" this issue at the council’s sitting. 

Tariq Naqash 

Notice served on ex AJK chief justice in vehicle purchase case

The High Court of Azad Jammu and Kashmir on Tuesday ordered to serve notices on a former chief justice (CJ) of AJK Supreme Court and eight government officials for their comments in connection with a petition challenging the “unlawful” sale of an official vehicle to the former CJ at a “throwaway price.” 

The petition was filed by advocates Syed Zulqarnain Naqvi, Syed Yasir Ali Gillani and Waheed Awan and civil society activists Shahid Zaman Awan, Shahab Rathore and Yasir Hussain Mughal under Article 44 of the AJK Constitution, and was taken up by a single member bench comprising Justice Sadaqat Hussain Raja.  

Ex CJ Zia, according to a notification issued by the law, justice and parliamentary affairs department on April 2, was provided a 2007 model 5-door Parado (MD-GA-566) on the occasion of his retirement “at a depreciated cost of Rs 410699, worked out by a deputy commissioner of Inland Revenue Department.” 

The petitioners informed the bench that the said vehicle was purchased by the AJK government “on its book value” from almost defunct Azad Kashmir Logging and Sawmills (AKLAS) Corporation and placed at the strength of the Central Transport Pool of Services and General Administration (S&GAD) department.

From there, it was directly transferred to the AJK Supreme Court on Feb 17, where Rs 818,300 were spent on its “wear and tear” at a private workshop in Peshawar according to a voucher dated March 28, just few days before its transfer to Mr Zia at the “depreciated cost of Rs 410699.”  

Advocate Naqvi argued that according to the AJK Constitution the members of the superior judiciary in AJK were mandatorily entitled to the same salary, allowances, perks, privileges and post retirement benefits as were admissible to their counterparts in Pakistan.

In this regard, he also quoted the law and the rules prevalent in Pakistan regarding the engine capacity, fuel ceiling etc of official cars to be used and utilized by the judges as well as their provision to the retiring judges at depreciated cost.

The impugned April 2 notification when gauged upon the touchstone of the law and rules in vogue in Pakistan was absolutely illegal, perverse, without jurisdiction or any lawful authority and discriminatory, he contended. 

Mr Naqvi pleaded that the court should take serious stock of the matter and take all those involved in approving and facilitating the unlawful transfer to task. 

Taking up the petition, Justice Sadaqat Hussain Raja ordered issuance of notices to Mr Zia and eight other respondents, including the chief secretary, law secretary, S&GAD secretary, Accountant General, Transport Officer, Registrar and Drawing and Disbursing Officer of Supreme Court, and deputy commissioner Inland Revenue Department, to submit their comment before June 15.

The judge also referred the matter to Chief Justice Azhar Saleem Babar for constitution of a larger bench to hear this petition.  

Tariq Naqash