AJK judiciary should be treated with the same respect and deference as its counter-part in Pakistan argues an ex-senior most judge of the Supreme Court of Azad Kashmir (AJK). Yet, he laments that summaries for the appointment of Chief justices of Supreme Court and High Court remain pending before Chairman Kashmir Council for months – thanks to the scheming bureaucracy in Islamabad.
The positions of Chief Justice of Supreme Court and High Court of Azad Jammu and Kashmir (AJK) have been lying vacant for the last 4 to 5 months. Under the scheme of AJK constitution, the Judges, the Chief Justice of Supreme Court and High court are appointed by the president of AJK with prior approval, (which is called Advice under the constitutional scheme) of Chairman Kashmir council – who happens to be the Prime Minister of Pakistan.
When the post of Chief Justice of any of the two courts falls vacant, the senior-most judge of the respective court is appointed as Chief Justice however due to one or the other kind malpractices this almost never happens.
Normally the process needs to be completed before a vacancy actually occurs as is done around the world, particularly in the Pakistani courts. However, it never happens in AJK where the federal bureaucracy, sitting in Islamabad, procrastinates the matter with a colonial attitude.
To fill the position, the President of AJK is empowered to appoint an interim Chief of Justice, pending advice from the Kashmir Council. The interim Chief Justices have the same powers as the Chief Justice but the notion that they are ACTING is badgered contemptuously by the federal government.
Read an excellent summary report on the issues, facing AJK judiciary, from Pakistan’s largest English paper Dawn: AJK Legal fraternity concerned over the delay in the appointment of CJs, Dawn
Summary from AJK remains pending before PM of Pakistan?
There are three very glaring examples of this callous attitude. A judge of great seniority of the AJK Supreme Court worked as interim Chief Justice for approximately four years. Similarly, services of a retired judge of the High Court were hired as an interim Chief Justice for three years.
The worst of such cases is perhaps the example of a judge with twenty-two days service remaining in the supreme court was appointed as Chief Justice AJK over a judge that was seven years in seniority to him.
All governments in Islamabad have continued with these policies of deliberate neglect and gross insensitivity. No Pakistani government has ever been an exception to this rule. One hoped that government of Prime Minister Imran Khan will prove different – however it is apparently hijacked by the same sections of bureaucracy as all governments before.
The “Proposal of Advice” for the appointment of senior-most judges of the respective courts as Chief Justice was petitioned well before the retirement of the out-going Chief Justice but has been pending before the office of chairman i.e. Prime Minister of Pakistan since.
Under the scheme of the constitution and judicial precedents, only the senior-most judge can be appointed as the Chief Justice -and this approval is a formality.
Pressurizing AJK govt to undo 13th Amendment?
While no one can be sure why the matter is being treated with such neglect and insensitivity in Islamabad. But it is leading to continuous whispers, between Islamabad and Muzaffarabad – is that this is being done to pressurise the AJK government into undoing the 13th amendment of the AJK constitution.
Through this amendment, the over-lordship of AJK council in financial, executive, and legislative matters was cut to size. This is a sore scare for the federal bureaucracy dealing with AJK affairs in the ministry of Kashmir affairs and their deputies in the AJK council. They collect AJK revenue and deduct more than 38% from it to be disbursed at Council’s discretion and the remaining is given to AJK after making the AJK government beg and plead.
In my opinion, the bureaucracy in Islamabad, deprived of this easy loot has brewed a perversity creating a misconception among the political bosses in the circles of the Government of Pakistan dealing with AJK affairs relating to council that “AJK council in session“ can decide the matter of appointment of judges, and not the chairman.
Kashmir council consists of six members elected by AJK Assembly and five nominated by the prime minister of Pakistan from among the members of parliament of Pakistan or federal ministers, besides President and Prime Minister of AJK. [Article 21(1) to 3A]
Kashmir Council may be fooling its political bosses
Headed by the Prime Minister of Pakistan as its chairman, it won’t be out of place to mention that none of the federal nominees are under oath of the AJK constitution.
Apart from the fact that council in session is irrelevant in executive affairs before 13th
amendment in AJK interim constitution; after the amendment, the only function of the
council in session under Article 21 (8) is “The council shall have an advisory role in respect of matters and subjects, referred to in sub-Article (3) of Article 31 and in respect of the responsibilities of the government of Pakistan under UNCIP Resolutions.”
It will be a travesty of the constitution to read council as defined under Article 21(1 to 3A) when its role is very clearly and vividly defined as advisory for legislative matters. It would equally be illogical and unconventional besides being unconstitutional to put the appointment of judges to the vote of members of the council and politicize it when the constitution does not allow it.
This is how the bureaucracies fool the political bosses for their petty ends – and let the political decision makers take the blame for what is often “bureaucracy’s vested interests”
Abuse of power by the bureaucracy through interpretation?
At the end of the day, political bosses have to bear the brunt for maladministration before courts and the National Accountability Bureau (NAB). The office of Chief Justice is not a political or elected office to be put to vote, neither is the Kashmir Council vested with any power under Article 21, of the constitution, to be an electoral college or judicial selection commission for election or appointment of judges – who will be selected as per their seniority, a principle clearly accepted in Pakistan and AJK.
The word “council“ referred to in Article 42 and 43 of the AJK interim constitution relating to appointment of Supreme Court and High court judges has a self-contained procedure for appointment. It neither defines nor accepts any role of members of the council which is otherwise clearly mentioned in Art 21(8).
The absence of the word “chairman“ before “council“ in Art 42 and 43 may be an insignificant omission which won’t allow to be read as “council in session“ and this omission alone can not defeat the sense and spirit of the constitution given its scheme and nature of functions of the executive business of council or the Government of Pakistan.
When is there a room for interpretation?
The celebrated rule of interpretation is to supply omissions or commissions when the scheme of the constitution or law so requires or is otherwise not clear. Interpretation cannot be made to defeat the purpose but is meant to advance the object. Procrastinating the matter for whatever reason affects the image of AJK judicial system, speaks of maladministration and malice of the authorities connected therewith in the federal government in Islamabad.
This becomes particularly important in relation to a territory that is passing through the “transitory phase since seventy-three years without any outlet and without their fault”. It is still known as “Azad Kashmir.” Hope this matter reaches the ears and eyes of Prime Minister of Pakistan: Mr. Imran Khan. He is believed to be a just man of solid principles.
Author Justice (r) Syed Manzoor Hussain Gillani retired as the senior-most judge of the Supreme Court of AJK. He was educated in Srinagar, occupied Kashmir, and migrated to AJK in 1976; can be reached at email@example.com. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.