The territory of Azad Jammu and Kashmir is a distinct entity administered in accordance with the resolutions of the United Nation’s Commission on India and Pakistan(UNCIP). It has its own Constitutional and Administrative setup including President, Prime Minister, Legislative Assembly High Court and the Supreme Court as Apex Court of judicial hierarchy.
The Supreme Court of Azad Jammu and Kashmir
Constitutional and Legal Background and Present Constitution:
The Supreme Court of AJ&K has emerged in the State with unique background and system of administration of justice. Prior to emergence of the State of Azad Jammu & Kashmir in 1947, a Judicial Board was established during Dogra Regime vide as Act known as Jammu and Kashmir Constitution Act,1996 Bikrimi (Act No. XIV of 1996 i.e. 7th September,1939 A.D.) for hearing appeals etc. against the judgments and orders of the High Court. After the war of liberation in 1947,the legal system in the liberated territory, including the High Court, was established by virtue of Courts and the Laws Code,1948 which was subsequently substituted by the Courts and Laws code,1949.However, there was no forum for filing appeals etc. against the judgment and orders of the High Court as was present in the Dogra Regime in the form of aforesaid Judicial Board. Thus, the necessity of establishing such a forum was keenly felt by the legal fraternity in particular and people of the liberated territory in general. The Interim Constitution Act,1974(Act No. VIII of 1974) was promulgated on 24th August,1974, wherein a provision was made for the establishment of a Judicial Board. In pursuance of the aforesaid constitutional provision an Act known as the Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974(Act No. XX of 1974) was promulgated on 14th September,1974, whereby the Judicial Board on the pattern of one which existed in Dogra Regime was established. As a result of popular demand that instead of Judicial Board, Supreme Court be established, the relevant provision of the Interim Constitution Act, 1974, was amended vide Act No. IX of 1975, whereby the Judicial Board was renamed and reconstituted as the Supreme Court of Azad Jammu and Kashmir which consisted of Chief Justice and a Judge. Subsequently, the number of Judges was increased from one Judge to two Judges vide 10th Amendment Act, 1993, dated 03.04.1993. Presently the Supreme Court consists of a Chief Justice and two Judges. Under Article 42(8-A), of the Constitution, ad-hoc judge may also be appointed if at times it is felt necessary to increase number of judges.
JURISDICTION OF THE SUPREME COURT
The Supreme Court is vested with appellate jurisdiction against the judgments, orders, decrees and any sentence passed by the High Court, the Shariat Appellate Bench of the High Court, the Service Tribunal and the Election Tribunals or any other special Court. It also has the powers of revision in the criminal cases decided by the High Court and the Shariat Appellate Bench of the High Court.
The criminal and civil appellate jurisdiction of the Supreme Court of AJ&K is regulated by Article 42 (11) of the AJ&K Interim Constitution, 1974, under which appeal lies to the Supreme Court from any judgment, decree, final order or sentence of the High Court of Azad Jammu and Kashmir. Appeal also lies to the Supreme Court from the order passed by the Shariat Court of Azad Jammu and Kashmir under Islamic Penal Laws Act, Shariat Court Act and other Islamic Penal Laws. In the cases where Article 42(11) is not attracted, the appeal lies to the Supreme Court against any judgment decree order or sentence of the High Court, if the Supreme Court grants leave to appeal. Similarly an appeal lies to the Supreme Court from the judgment, decree, order or sentence of an administrative Court or Tribunal under Article 47(3) of the Interim Constitution, if the case involves a substantial question of law of public importance and Supreme Court grants leave to appeal. The appellate powers of the Supreme Court of Azad Jammu and Kashmir are identical and at par with the powers of the Supreme Court of Pakistan.
There is no provision in the AJ&K Interim Constitution Act, 1974, like Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, vesting original jurisdiction in the Supreme Court of Pakistan. The Supreme Court of Azad Jammu and Kashmir is only the Appellate Court as the Board of Judicial Advisors and Judicial Board used to be. It cannot entertain any direct petition nor can issue any order except in an appeal. It has original jurisdiction under the Constitution in two eventualities, i.e., advisory jurisdiction under section 46-A and Contempt of Court jurisdiction under Article 45, of the Interim Constitution.
Section 42-D of the Interim Constitution Act, 1974, authorizes the Supreme Court of AJ&K to review any judgment, pronounced or any order made by it. The review powers of the Supreme Court are regulated by Order XLVI of the Supreme Court Rules, 1978, in civil as well as in criminal cases. Under rule 1 of Order XLVI of the Supreme Court Rules, the Court may review its judgment or order in civil proceedings on the grounds similar to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure and in criminal proceeding on the grounds of an error apparent on the face of record.
The Supreme Court has jurisdiction to review its judgements and orders and also has advisory jurisdiction on the matters relating to any point of law as referred to it by the Chairman of the Kashmir Council (the Prime Minister of Pakistan) or the President of AJ&K under Article 46-A of Interim Constitution 1974.
The Supreme Court of AJ&K has inherent powers under Article 42-A, of the Interim Constitution 1974, that all executive and judicial authorities throughout Azad Jammu and Kashmir shall act in aid of the Supreme Court, which means whenever an order and direction is issued by the Supreme Court to any authority whether judicial or executive, all shall collaborate in giving effect to such order or direction and aid each other in execution of that direction or order.
Binding Nature of Decisions of Supreme Court
The judgments of the Supreme Court are binding on all the lower Courts of Azad Jammu & Kashmir under Article 42-B of AJ&K Interim Constitution 1974.
Seat of the Supreme Court:
The principal seat of the Supreme Court of AJ&K is at Muzaffarabad. Besides principal seat at Muzaffarabad, the Supreme Court holds its sitting at Mirpur and Rawalakot. Cases are filed at principal seat and/or branch registries. The cases are heard at Principal seat and the branch registries on rotation basis by the benches of the Court. Due to which it is convenient for the litigant parties to have easy access to justice closer to their home cities.
Terms and Conditions:
The remuneration and other terms and conditions of service of the Chief Justice and other Judges of the Supreme Court including their salary, allowances, privileges and pension are the same as admissible to their counterparts in the Supreme Court of Pakistan in view of Schedule IV of the AJ&K Interim Constitution, 1974.
Constitution of Benches & Difference of Opinion:
Article 42 (13) of Interim Constitution, 1974, provides procedure relating to constitution of Benches and hearing of appeals by the Supreme Court. At least two Judges shall compose a bench to hear an appeal and only Chief Justice can constitute and reconstitute the bench. When there is a difference of opinion between the Judges hearing the case, the opinion of majority shall prevail, and if there is no such majority, then the case shall be placed before another Judge to be nominated by the Chief Justice and if there is no such Judge, the judgment, decree, order or sentence appealed from shall be deemed to be the judgment of the Supreme Court. However, if the difference of opinion is only in respect of nature, quantum, extent of the relief, liability, penalty or punishment to be granted or imposed, the decision of the Supreme Court shall be expressed in term of opinion of the senior of the two Judges.
Power of the Supreme Court to make Rules:
Under Article 42-A (4) of the Interim Constitution Act, the Supreme Court is competent to make rules regulating the practice and procedure of the Court in consultation with Government the Supreme Court has made the Rules in pursuance of the said Article.
Under the Constitution of Pakistan 1973, the Supreme Court of Pakistan is not bound to consult any authority in making rules regulating its practice and procedure, while the Supreme Court of Azad Jammu and Kashmir cannot make the rules without the consultation of the Government.
Last Updated on : Wednesday 12th April 2023, 03:17:35 PM