ESTABLISHMENT OF HIGH COURT

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ESTABLISHMENT OF HIGH COURT

The High Court was established under Resolution No. 372 passed on 18th May 1949. Through this resolution, one post of Judge High Court, one Steno, one Clerk of Court, one Registrar High Court, one Assistant Advocate General and one Chaprasi for the High Court were created. Through another resolution No. 594 passed on 9.10.1948, it was decided that instead of one Judge there would be two Judges of the High Court. It was provided that in the event of difference between the two on any point the opinion of the Chief Justice would prevail. It was also provided that the incumbent Judge of the High Court would be the Chief Justice because of his seniority in service in Azad Government. Under an order of the President issued 8.11.1948, Mr. Justice Abdul Majeed Khan was appointed Chief Justice of the High Court. Sheikh Abdul Rashid was appointed as puisne Judge of the High Court. At that time the Headquarter of the High Court was at Rawalpindi with the code name of “Lion”. Under Cabinet Order No. 233/50 dated 11.7.1950, actions of Minister for Law in fixing the headquarter of the High Court at “Lion” in the first instance and then in shifting the headquarter of the High Court from “Lion” to Muzaffarabad were confirmed.

HIGH COURT UNDER RULES OF BUSINESS

Under the Rules of Business issued on 28.12.1950, power of appointment of Chief Justice and Judges of the High Court was vested in the Supreme Head which was defined as the Supreme Head of the Azad Kashmir Movement. The Chief Justice remained vested with the power of recruitment, posting and transfer, creation of posts, retirement and disciplinary actions with respect to all posts in the Judicial Department. Rule 5 Schedule-I of the Rules of Business gave autonomy to the Chief Justice to sanction all financial expenditure with respect to Judicial Department provided in the budget and to exercise all financial powers not vested in the Council or delegated to a subordinate authority by any specific order. Pecuniary jurisdiction of the subordinate courts was also regulated by these Rules of Business.

The Rules of Business of 1950 were superseded by the Rules of Business of 1952. The latter rules, however, contained the provisions of the earlier rules giving full power to the Chief Justice in matters of control on subordinate judiciary, appointments and sanctioning of financial expenditure provided in the budget. The rules were again revised on 29.11.1958, which also contained similar provisions with respect to the High Court.

HIGH COURT UNDER AJK GOVERNMENT ACT, 1970

In 1970, the AJK Government Act, 1970, was enacted. Its section 25 regulated the High Court. Powers to appoint Chief Justice and Judge vested in the President of Azad Jammu and Kashmir. This Act was amended in 1971 through Act No. IX of 1971 whereby Sections 25(A) and 25-B were added, which guaranteed for the first time fundamental human rights to the State subjects and conferred writ jurisdiction on the High Court.

HIGH COURT UNDER AJK INTERIM CONSTITUTION ACT, 1974

The Azad Jammu and Kashmir Government Act 1970 was repealed and re-enacted as the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter referred as the Interim Constitution) which came into force on 24th August 1974. The provisions of the Interim Constitution as amended from time to time, which relate to the High Court are contained in Sections 43 to 44-C, 46 and 47-A and Fifth Schedule. Section 43 provides for composition of the High Court, manner of appointment of Judges, oath of office, additional judge, age etc., Section 44 confers writ jurisdiction on the High Court and protection of fundamental rights, Section 44-A gives power to the High Court to make rules regulating the practice and procedure of the High Court and/or any Court subordinate to it. Section 44-B declares binding nature of the decisions of the High Court on all subordinate courts. Section 44-C prescribes that permanent seat of the High Court shall be at Muzaffarabad and gives power to the High Court to sit, from time to time, at such other places as the Chief Justice may, with the prior approval of the President, appoint. Fifth Schedule provides that the Chief Justice and Judges of the High Court shall be entitled to the same salary, allowances, privileges and pension as are admissible to the Chief Justice and Judges of the High Courts in Pakistan.

These sections are reproduced below:

“43. High Court. - There shall be a High Court for Azad Jammu and Kashmir, hereinafter called the High Court, which shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Assembly.

1-A (a) The functions of the High Court may be performed by a Single Bench, a Division Bench or a Full Bench:

            Provided that the Chief may recall a case pending before a Bench and make it over to another Bench or constitute a larger bench for the purpose;

(b) in case of difference of opinion in a Full Bench, the opinion of majority shall prevail;

(c) in case of difference of opinion in a Division Bench, the matter shall be referred to a third judge and the decision of the High Court shall be expressed in terms of judgment of the majority.

(2) The person holding office as Chief Justice or other Judge of the High Court immediately before the commencement of this Act shall be deemed to be the Chief Justice or other Juge, as the case may be, appointed under this Act.

(2-A) A Judge of the High Court shall be appointed by the President on the advice of the Council and 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.

(3)        A person shall not be appointed as a Judge of the High Court or Advocate General unless. -

(a) he has for a period or periods aggregating for not less than ten years, been an Advocate or Pleader of the High Court of Azad Jammu and Kashmir or a High Court in Pakistan

            Provided that the term ‘High Court’ herein shall include a High Court or an equivalent Court that existed at any time before the 14th day of August, 1947; or

(b) he has for a period of not less than ten years held a judicial office out of which not less than three years have been as District and Sessions Judge.

(4) Before he enters upon his office, Chief Justice of the High Court shall make before the President, and another Judge of the High Court shall make before the Chief Justice, an oath in form set out in the First Schedule.

(5) The Chief Justice or a Judge of the High Court shall hold office until he attains the age of sixty-two years unless he sooner resigns or is removed from office in accordance with law:

Provided that the President may appoint a retired Judge of any High Court of Pakistan to be the Chief Justice or a Judge of the High Court for a period not exceeding three years and such person shall hold office until he attains the age of sixty-five years.

(6) If at any time any Judge of the High Court is absent or is unable to perform his functions due to illness or some other cause, the President may appoint a person qualified for appointment as a Judge of the High Court to be an Additional Judge of the High Court for the period for which the Judge is absent or unable to perform his functions.

(7) A Judge of High Court shall not; -

(a) hold any other office of profit in the service of Azad Jammu and Kashmir if his remuneration is thereby increased; or

(b) occupy any other position carrying the right to remuneration for the rendering of services, but this sub-section shall not be constructed as preventing a Judge from holding or managing private property.

(8) A person who has held office as a Judge of the High Court shall not hold any office of profit in the service of Azad Jammu and Kashmir, not being a judicial or quasi-judicial office of Chief Election Commissioner or of Chairman or member of the Public Service Commission before the expiration or two years after he ceased to hold that office.

(9) The remuneration and other terms and conditions of service of Judge of High Court shall be as provided in the Fifth Schedule.”

 

“43-A. Acting Chief Justice. At any time when:

  • The office of Chief Justice of High Court is vacant, or
  • The Chief Justice of High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the senior most of the other Judges of the High Court to act as Chief Justice.”

“44. Jurisdiction of High Court: - (1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.

(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law. -

(a)        on the application of any aggrieved party, make an order. -

(i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do, or

(ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or

(b)       on the application of any person, make an order. -

  1. i) directing that a person in custody in Azad Jammu and Kashmir may brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner, or
  2. ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold that office, or

(c)        on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement or any of the fundamental rights conferred by this Act.

(3) An order shall not be made under sub-section (2) of this section on application made by or in relation to a person in the Defense Service in respect of his terms and conditions of service, in respect of any matter arising out of his service in respect of any action in relation to him as a member of the Defense Services.

(4) Where. -

(a) application is made to the High Court for an order under clause (a) or clause (c) of sub-section (2); and

(b) The Court has reason to believe that the making or an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or otherwise being harmful to the public interest, the Court shall not make an interim  order unless the Advocate General or any officer authorized by him in this behalf has been given an opportunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in clause (b) of this sub-section.

(5)       In this section, unless the context otherwise requires, ‘Person’ includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or tribunal established under a law relating to the Defense Services.”

“44-A. Rules of Procedure. - Subject to this Act and law, the High Court may in consultation with the Government, make rules regulating the practice and procedure of the Court or of any Court subordinate to it.”

 

44-B. Decision of High Court binding on subordinate Courts. -Subject to Section 42-B, any decision of the High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it.”

 

44-C.- Seat of the High Court. - (1) The permanent seat of the High Court shall be at Muzaffarabad.

 

(2)        The High Court may, from time to time, sit at such other places as the Chief Justice of the High Court, with the approval of the President, may appoint.”

 “46. High Court to superintend and control all courts subordinate to it, etc. (1) The High Court shall superintend and control all other courts that are subordinate to it.

(2)…

(3)…

(4)….”

47-A.  Employees of Court. The Supreme Court and the High Court, with the approval of the President, may make rules providing for the appointment of employees of the Court and for their terms and conditions of employment.”

“FIFTH SCHEDULE

The Chief Justice and Judges of the High Court of Azad Jammu and Kashmir shall be entitled to the same salary, allowances, privileges and pension as are admissible to the Chief Justice and Judges of the High Court in Pakistan.”

The jurisdiction conferred on the High Court under Section 44 is known as the writ jurisdiction. Jurisdiction to protect Fundamental rights of persons is also conferred on the High Court under this section. Fundamental Rights of persons are listed under sub-section (4) of Section 4 of the Constitution. The same are briefly stated as under:

  1. Security of person;
  2. Safeguard as to arrest and detention;
  3. Slavery and Forced Labour prohibited;
  4. Protection against retrospective punishment;
  5. Freedom of Movement;
  6. Freedom of assembly;
  7. Freedom of association;
  8. Freedom of trade, business or profession;
  9. Freedom of speech;
  10. Freedom of religion;
  11. Safeguard against taxation for purposes of any particular religion;
  12. Safeguard as to educational institutions in respect of religion etc.
  13. Right of State subjects to acquire, hold and dispose of property;
  14. Protection of property;
  15. Equality of State subjects;
  16. Non-discrimination in respect of access to public places;
  17. Safeguard against discrimination in services;
  18. Abolition of untouchability.

NUMBER OF JUDGES

Section 43 of the Interim Constitution provides that High Court shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Assembly. The Courts and Laws Code 1949 as amended vide Act No. XXIII of 1992 provide that the High Court shall consist of a Chief Justice and three or more Judges. No maximum limit is prescribed. Two posts of Judge of the High Court and one post of Judge of Shariat Court were created vide Notification No. LD/Ad/1642-51/2012 dated 11.9.2012. Two of Judges were shifted from the sanctioned strength of the Shariat Court to High Court of Azad Jammu and Kashmir vide notification No. LD/AD/1800-1869/2016 dated 21.12.2016. At present the sanctioned strength of Judges of the High Court is eight, besides the Chief Justice. However, at the end of March 2017, only four Judges are functioning. The rest are yet to be appointed.

PERMANENT SEAT AND OTHER PLACES OF SITTING OF THE HIGH COURT

Sub-section (1) of Section 44-C of the Interim Constitution prescribes that the permanent seat of the High Court shall be at Muzaffarabad and sub-section (2) prescribes that the High Court may, from time to time, sit at such other places as the Chief Justice of the High Court, with the approval of the President, may appoint.

In exercise of the powers under sub-section (2) of Section 44-C, the High Court has, with the approval of the President, notified Mirpur, Rawalakot and Kotli as other places of sitting of the High Court. These are commonly known as Circuit Benches of the High Court.

HIGH COURT BUILDING AT THE PERMANENT SEAT

In 1987, new building of the High Court with four court rooms was constructed at Chattar Domel, near the Secretariat of the Legislative Assembly and the Government. Four new court rooms were added in 2001-02. In the devastating earthquake of 8th October 2005, the building was damaged badly. However, the Judges and the staff continued to perform their functions in the damaged building until 2016, when its retrofitting was decided and the Court shifted to a building at the bank road in Muzaffarabad city, known as Club Hall. Retrofitting work of the building is in progress. After retrofitting, the Court will be shifted back to its own building at Chhattar Domel.

COURT BUILDINGS FOR CIRCUIT BENCHES

Court building for Circuit Bench Mirpur is available, At Rawalakot accommodation is provided for the circuit bench in the judicial complex, but at Kotli there is no separate building available for the circuit bench.