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 and Supreme Court as Apex Court of judicial hierarchy.
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. The Terms and Conditions of the service of the judges and the procedure of their appointment was identical to one laid down in the Constitution of Islamic Republic of Pakistan, 1973.Subsequently, the number of Judges was increased from one Judge to two Judges vide a constitutional amendment made on 3.4. 1993.Presently the Court consists of a Chief Justice and two Judges.
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 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 has got wide constitutional powers to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it and all executive and judicial authorities of Azad Jammu & Kashmir are bound to act in aid of the Supreme Court under the provisions of Article 42-A of Interim Constitution, 1974. The Supreme Court of AJ&K does not have original jurisdiction as the Supreme Court of Pakistan has, under Article 184(3) of the Constitution of Pakistan. 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.
The Principal seat of the Supreme Court is situated at Muzaffarabad, the capital of Azad Jammu & Kashmir. It also has branch registries at Mirpur and Rawalakot. The cases are instituted at principal seat and also at the branch registries. The cases are heard at Principal seat and the branch registries on rotation basis by the benches of the Court.
PRESENT POSITION OF THE SUPREME COURT OF AJ&K.
The Supreme Court of AJ&K is the highest Court of appeal in Azad Jammu and Kashmir. It consists of a Chief Justice and two other Judges. The Chief Justice of Azad Jammu and Kashmir shall make before the President, and the other Judge before the Chief Justice of Azad Jammu and Kashmir oath of their offices before entering upon the office. Appointment of Chief Justice and Judges shall take effect from making the oath of their offices. Unless a Judge of the Supreme Court (which includes Chief Justice) resigns earlier or is removed from his office in accordance with law, he shall hold office until he attains the age of sixty-five years.
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 Act, 1974.
JURISDICTION OF THE SUPREME COURT
The criminal and civil appellate jurisdiction of the Supreme Court of AJ&K is regulated by sub-section (11) of section 42 of the AJ&K Interim Constitution Act, 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. Similarly an 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 sub-section (11) of section 42 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 subsection (3) of section 47 of the Interim Constitution Act, if the case involves a substantial question of law of public importance and Supreme Court grants leave to appeal.
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. The only original jurisdiction it has is the advisory jurisdiction under section 46-A of the Interim Constitution Act. 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.
CONSTITUTION OF BENCHES & DIFFERENCE OF OPINION
Through 10th amendment in the Constitution by way of Act No. XX of 1993, sub-section (13) was introduced in section 42 of Interim Constitution Act, 1974 providing some procedural matters 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.
The Supreme Court of AJ&K in exercise of its inherent powers can check the illegality committed by the subordinate Courts and bring the same in accordance with law. It is provided in section 42-A of the Interim Constitution Act 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.
Under sub-section (4) of section 42-A of the Interim Constitution Act, the Supreme Court is competent to make rules regulating the practice and procedure of the Court in consultation with the Council. The Supreme Court has made the Rules in consonance with this sub-section in 1978. Before the promulgation of the Supreme Court Rules 1978, the Rules framed by the Judicial Board were followed as the Rules of practice and procedure of the Supreme Court which stand superseded by the Rules of 1978.
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 Council.
Under section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974 the decisions of the Supreme Court of AJ&K insofar as they decide any question of law or are based upon or enunciate a principle of law, shall be binding on all the Courts in Azad Jammu and Kashmir. The law declared by the Supreme Court is equally binding on all the citizens and functionaries of the State whether they were parties to the decision or not.
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. Benches of the Court rotate between the principal seat and branch registries to dispose of cases, due to which it is convenient for the litigant parties to have easy access to justice closer to their home cities.
Section 42-D of the Interim Constitution Act, 1974, specially 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.