ISLAMABAD: President of the Supreme Court Bar Association (SCBA) Syed Qalbe Hassan has expressed concern over the delay in issuance of advice for the permanent appointment of chief justices of the Supreme Court and High Court of Azad Jammu and Kashmir (AJK) by the prime minister of Pakistan.

The prime minister is the chairman of the Kashmir Council and the sole authority to accord approval to the summaries forwarded by the AJK president three months ago, the SCBA president said in a statement issued here on Tuesday.

He alleged that the Kashmir Council chairman had failed to discharge the constitutional legal formality, which resulted in the heartburning of the legal fraternity of Pakistan as well as Azad Jammu and Kashmir.

As per relevant provisions of the Constitution, whenever the office of chief justice of the Supreme Court or that of the High Court of AJK falls vacant, a senior most judge of the Supreme Court or of the High Court is appointed by the AJK president on the advice of the prime minister, Mr Hassan stated.

But it was ironic that after the retirement of the chief justices of the Supreme Court and the High Court of AJK, no permanent appointment to these offices had been made despite the lapse of a considerable long time and instead, as an ad hoc arrangement, acting chief justices had been appointed against both the august offices which not only negated the spirit of the Constitution but also undermined the principles of the independent judiciary in respect of judicial appointments, he added.

The SCBA president said the prime minister, being chairman of the Kashmir Council, was the sole authority to issue advice for permanent appointment of the chief justices of the Supreme Court and High Court of AJK.

He urged the prime minister to issue advice for these appointments to the AJK president who, according to the Constitution, is the appointing authority.

The legal fraternity in AJK believes that the alleged ‘inordinate’ delay on the part of the prime minister of Pakistan in furnishing his advice for permanent appointment of both chief justices in AJK’s superior courts is not only a violation of the AJK Constitution but also hampering many important judicial functions.

Under Article 42(4) of the AJK Constitution, the AJK president appoints the Supreme Court CJ and under Article 43(2-A) the high court CJ 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 judge to act as CJ.

Interestingly, currently both courts are being run by acting CJs. Justice Raja Saeed Akram Khan has been acting CJ since April 1 this year, following the retirement of his predecessor Chaudhry Ibrahim Zia, while the high court is being run by Justice Azhar Saleem Babar as acting CJ since Nov 16 last year after the nullification of 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 filed by 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 no response has been received.

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

Published in Dawn, June 10th, 2020