MUZAFFARABAD: The Azad Jammu and Kashmir (AJK) Supreme Court on Friday set aside the appointment of five judges in the region’s high court by declaring them ultra vires the Constitution and without lawful authority.

While declaring the offices of impugned judges vacant, the division bench of the apex court, comprising acting Chief Justice Raja Saeed Akram Khan and Justice Ghulam Mustafa Mughal, gave validity to all the acts done by them as judges on the basis of the principle of de facto doctrine including withdrawal of financial benefits.

Raja Raza Ali Khan, Sardar Mohammad Ejaz Khan, Khalid Yousuf Chaudhry and Raja Sajjad Ahmed Khan from the bar and Chaudhry Mohammad Munir from the bench were appointed as HC judges on May 21, 2018.

However, their appointment was challenged by lawyers from different parts of AJK between June 4, 2018, and July 23, 2018, through six writ petitions.The petitioners had alleged that the mandatory requirement of “consultation” had not been complied with, because it had been held, time and again, that consultation should be effective, meaningful, purposive and consensus oriented, leaving no room for complaint of arbitrariness or unfair play.

Another point raised in the petitions was the alleged lack of consensus between the chief justices of the supreme and high courts on the appointments.

According to the AJK Constitution, an HC judge is appointed by the AJK president on the advice of the AJK council – headed by the prime minister of Pakistan – after consultations with the CJs of the two superior courts in AJK.

However, the high court dismissed the petitions against the appointments on Sept 17, 2019, holding that the impugned appointment notification was validly issued to the extent of the judges appointed from the bar.

However, it set aside the appointment of Mr Munir for he did not fulfil the constitutional requirement of three-year service as district and sessions judge at the time of his elevation to the high court.

Mr Munir was granted interim relief by the apex court and had been continuing in office ever since.

In the meanwhile, the petitioners also challenged HC judgment in the apex court where they were represented by Sardar Shamshad Khan, Syed Shahid Bahar, Fayaz Ahmed Janjua, Barrister Hamayun Nawaz, Barrister Adnan Nawaz and others.

The impugned judges, AJK president and AJK council were represented Raja Hanif, Shoukat Aziz, Bashir Mughal, Sardar Tahir Anwar and others.

Hearings were delayed due to several reasons including Covid-19 pandemic. However, finally early this month arguments were heard on four consecutive days following which the judgment was reserved.

Authored by the acting CJ, the 136 page judgment was announced on Friday in open court in the presence of the counsel for the parties.

The bench held that the consultation for appointment of all the five judges had not been made in accordance with the spirit of the provisions of Article 43(2-A) of the AJK Constitution and the dictum laid down by the superior courts.

Published in Dawn, July 18th, 2020