MUZAFFARABAD: The legal fraternity in Azad Jammu and Kashmir (AJK) has expressed serious concerns over the alleged “inordinate” delay on the part of the 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, 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 since April 1, 2020, following the retirement of his predecessor Chaudhry Ibrahim Zia and high court is being run by Justice Azhar Saleem Babar as acting CJ 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 Dawn 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 the AJK Council chairman 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.

Al-Jehad Trust case

According to a dictum laid down by the Supreme Court of Pakistan in the famous Al-Jehad 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 Mohammad 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 the Pakistan Bar Council, had also expressed concern over delay in appointment of permanent CJs in AJK.

Published in Dawn, June 3rd, 2020