MUZAFFARABAD: The Azad Jammu and Kashmir (AJK) High Court will hear a petition challenging recent legislation by the AJK Assembly whereby a ‘judicial policy making committee’ has been established by the government.

A division bench, comprising Justice Mohammad Shiraz Kiani and Justice Sadaqat Hussain Raja, will hear the petitioners on Friday to decide the maintainability of the petition.

The petition has been filed by Fayyaz Ahmed Janjua, also the counsel, Waheed Bashir Awan and Raja Waqas Khan, who alleged that the legislation was in contravention of the provisions of the AJK Interim Constitution Act, 1974. All three are members of the Central Bar Association Muzaffarabad.

On Nov 13, 2017, the AJK Assembly passed an act to establish the State Judicial (Policy Making) Committee headed by the AJK chief justice, with the most senior judge of the apex court, chief justice and the most senior judge of the high court and law department secretary as its members.

The committee has so far held six meetings and has come up with some ‘guiding principles’ for judicial and non-judicial officers and other staff of the lower courts.

The petitioners contended that sections 42 to 42-D of the AJK Constitution clearly defined the composition, functions, jurisdiction and other powers of the apex court while sections 43 to 46(1), (2), (3) and (4) specified the jurisdiction, powers etc of the high court.

They particularly referred to section 46 which stated that the high court “shall superintend and control all courts subordinate to it”, and pointed out that the meaning of the word “superintend”, according to popular and legal dictionaries, was “to be responsible for the management or arrangement of (an activity or organisation)”.

The use of word “shall” in this section left no doubt that the high court alone was responsible and empowered to control the subordinate courts, they maintained.

In this backdrop, the petitioners argued, the enactment of a ‘judicial policy making committee’ under the apex court chief justice amounted to violation and contempt of the constitutional provisions.

They contended that since the powers and functions of the both superior courts had been unambiguously defined in the AJK Constitution, the government could not amend them through a piece of subordinate legislation. Rather, such an amendment needed alteration in the constitution.

They argued that apart from that, it was also against the provisions of section 44-A of the AJK Constitution, whereby the high court had been empowered to make rules regulating the practice and procedure of the any subordinate court.

Pleading maintenance of status-quo, the petitioners also sought an interim injunction to restrain the respondents from framing rules of procedure under the act during the pendency of petition.

The petitioners have arrayed the AJK Assembly through its speaker, AJK government through the law secretary and members of the committee through the law secretary as respondents, and the AJK high court through its registrar as a pro-forma respondent.

Published in Dawn, March 17th, 2018