MUZAFFARABAD: Prime Minister Imran Khan on Monday sent an advice to Azad Jammu and Kashmir (AJK) President Sardar Masood Khan for confirmation of Justice Raja Saeed Akram Khan as permanent chief justice of the region’s supreme court after more than a year, senior officials confirmed.
On March 31, 2020, the office of apex court’s chief justice (CJ) had fallen vacant following the retirement of Justice Ch Ibrahim Zia and, ever since, Justice Khan, the senior most judge, was holding it as acting CJ.
While the appointments of acting CJs in both the supreme and high courts in AJK can be made by the AJK president on his own as a stopgap arrangement, the appointment of permanent CJs cannot be made by him without an advice to this effect from the Prime Minister of Pakistan in the latter’s capacity as chairman of AJK council.
However, after the passage of 13th constitutional amendment in June 2018, a “difference of opinion” had emerged on whether the advice shall be made by the ‘council’ or by the ‘chairman of the council.’
It was why the appointment of permanent CJs of the AJK’s supreme court as well as high court could not be made since April this year and Nov last year, respectively, because the Federal Law Division had reportedly opined that a session of the council was required for such an advice.
In order to remove the very “anomaly” or “ambiguity” in the process for appointment of the members of its superior courts, the AJK government was compelled to pass the 14th constitutional amendment in December last year, whereby the words “the chairman of” were inserted in the Articles 42 and 43 between the words “on the advice of” and “the council.”
However, it took the AJK council chairman almost five months to send his advice for confirmation of Justice Khan as the apex court’s CJ.
A senior official in the AJK law department confirmed to Dawn that they had received the summary from the president’s office and were in the process of issuing a formal notification to this effect.
The acting CJ was in Mirpur on Monday but would arrive in Muzaffarabad early Tuesday to be administered oath by the president at 11am, the official said.
Under Article 42 (3) of the AJK constitution, the AJK supreme court consists of a CJ and two other judges.
However, after the retirement of Justice Mustafa Mughal in December last year, it has been functioning with only one judge, because no judge could be appointed in the absence of a permanent CJ.
Unlike Pakistan, appointment of judges can be directly made in the AJK apex court apart from elevation from the high court.
Not only the apex court, the AJK high court has also been functioning with an acting CJ, since Nov 2019 when the basic appointment [as judge] of the then CJ, Tabassum Aftab Alvi, was nullified by the apex court due to a technical flaw and the next senior judge, Azhar Saleem Babar, was appointed as acting CJ.
In July 2020, five more high court judges were also sent packing by the apex court because of the same technical mistake in their appointment, leaving the court with only three judges as against its sanctioned strength of 9.
Of the three judges, acting CJ Babar retired on March 22 this year, following which Justice Shiraz Kiani was appointed as acting CJ. However, within five weeks of assuming office, Justice Kiani died of brain hemorrhage on May 3, following which the only judge, Sadaqat Hussain Raja, was appointed as acting CJ.
Published in Dawn, May 18th, 2021