The Supreme Court of Azad Jammu & Kashmir (AJK) has sacked five judges of the AJK High Court. Raza Ali Khan, Muhammad Ejaz Khan, Khalid Yousaf Chaudhary, Raja Sajjad Ahmed Khan, and Ch. Muhammad Munir were appointed as judges of the AJK HC on 21-05-2018. The appointment was challenged by numerous lawyers from different areas of AJK. Mainly on the ground that appointments have been made without proper consultation with the Constitutional consultees as laid down in the number of dictums laid down by the Apex Court. This special report explains as to why did the SC sack five High Court judges?
The petitioners also pointed out that Ch. Munir was not eligible to be appointed because he was lacking the requisite eligibility. The High Court accepted the petitions to the extent of Ch. Munir while the rest of the appointments were maintained.
After the SC’s decision, Ch. Munir reverted to his previous post of District and Sessions Judge.
There are a total of nine judges in the AJK LHC; Chief Justice, one most senior judge, and seven other judges. At the moment, there are only three judges in their offices.
Read More: AJK Judiciary: Why not treat it with same respect as in Pakistan?
According to official record, seven appeals have been decided by the Honorable Supreme Court of AJK on 17-07-2020 vide its judgment titled: “Sardar Javaid Sharif Versus Government of State of AJK and others” declaring the appointments of the Judges, made vide notification No.LD/AD/711-30/2018, dated 21.05.2018, ultra vires the Constitution and without lawful authority, hence, the same has been set aside.
Due consultation process for the appointment of Judges
Due Process of appointment Under Article 43(2-A) of the Azad Jammu and Kashmir Interim Constitution, 1974 is that a Judge of the High Court shall be appointed by the President on the advice of the Council after consultation with the Chief Justice of Azad Jammu and Kashmir; and except where the appointment is that of Chief Justice, with the Chief Justice of the High Court.
آزاد کشمیر ہائیکورٹ کے 5جج فارغ، سپریم کورٹ کا حکم جاریhttps://t.co/EUeiATXUcE#AzadKashmir #SupremeCourt
— SUCH News (@SuchNewsPakUrdu) July 17, 2020
The scheme of the Constitution is to consult both the Chief Justice at the same time otherwise the consultation will be meaningless.
It is mandatory to make effective, meaningful, purposive, and consensus-oriented consultation, leaving no room for complaint.
Why did SC sack five High Court judges? Was the due process followed?
The Chief Justice High Court, in response to a letter issued by the President, sent a panel consisting of fifteen (15) eligible advocates for appointment as judges of the High Court.
The Chief Justice Supreme Court in response to a letter issued by the President added nine (9) more nominees in the list sent by the Chief Justice of the High Court and also highlighted the pre-requisites of the consultative process.
AJK Judiciary must be treated with the same respect as we treat its counterpart in Pakistan. Not treating it with same deference creates misgivings in a territory that is still called, "Azad Kashmir" argues a respected ex-Judge from AJK Supreme Court https://t.co/Tn0Rc7tvxz
— Moeed Pirzada (@MoeedNj) June 3, 2020
A summary was prepared and sent to the Azad Jammu and Kashmir Council by the President Secretariat while recommending for the names of only five (5) nominees for appointment as Judges of the High Court, whereupon, the Council, summoned the relevant record regarding the consultative process and after examining the same rejected the summary on the ground that proper consultation is not made.
Notably, the Prime Minister of Pakistan is the Chairman AJK Council.
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The President after the rejection of the first summary by the Council, instead of initiating the fresh process, in the light of the letter through which the summary was rejected, again forwarded the penal sent previously while observing that he got reconfirmed the names included in the previous summary from the Hon’ble Chief Justices.
The Chairman Council while believing that proper consultation has been made, approved the names of the persons recommended, in view of the order of priority set by the worthy President himself and ultimately the notification for appointment in question was issued on 21.05.2018.
Negligence or hidden interests?
As the SC has ordered to sack five High Court judges, Syed Ahsan Ali Walayat, a lawyer of the AJK High Court, spoke to GVS and explained the case. Mr. Walayat points out that: “AJK has been facing numerous judicial dismissals during the last two decades. This has resulted in an immense pile-up of cases and a massive delay in delivering justice to the people of the state. These appointments were already made after a long delay and now knowing that these were unconstitutional is raising serious distress and unrest among the legal fraternity.”
He also said that: “it is the time for those in command to make the appointments according to the set rules and regulations. The judicial system in a country has deep-rooted effects on society. I am not sure whether this is due to negligence in the shape of flawed consultation or any other reason this has to stop and the system should run smoothly for the betterment of the state.”
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Mr. Walayat lamented that “currently both the Chief Justices of High Court and Supreme Court are not full-time officers rather they were working as acting CJs. Interestingly, a fresh consultation process cannot be initiated until both are confirmed as CJS”. He concluded: “Ironically, there are six vacant seats in the High Court and one in the Supreme Court. The competent authorities should fill these seats as soon as possible because the citizens have already been going through hard times after repeated earthquakes in Mirpur and the economic recession caused by the COVID 19 pandemic.”