G-B CM moves SC against judges’ appointment

Constitutional plea contends extension notification unconstitutional, without lawful authority and of no legal effect

ISLAMABAD:

Chief Minister Gilgit Baltistan (G-B) Khalid Khursheed Khan has challenged the appointment of a judge as well as the extension of three judges of the region’s chief court by the Pakistan government.

G-B Chief Minister Khalid Khursheed Khan filed a constitutional petition under Article 184(3) of the Constitution through senior lawyer Makhdoom Ali Khan and made the federal government, governor GB and newly-appointed Judge chief Javed Ahmed respondents.

Prime Minister Shehbaz Sharif appointed three judges of the G-B Chief Court on September 16 following a summary moved by Governor Syed Mahdi Shah. However, it is further learnt that the summary for the appointments was initiated without consulting the chief minister.

A Pakistan Tehreek-e-Insaf (PTI) leader privy to the filing of the petition had earlier told The Express Tribune that the summary was moved without holding consultation with the chief minister or the cabinet.

In the petition, the G-B government contended that the action of the prime minister and the G-B governor was illegal and in violation of the Gilgit-Baltistan Government Order 2018 read with the Gilgit-Baltistan Rules of Business 2009.

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It is contended that the extension of the appointment of Mr Justice Malik Inayat-ur-Rehman, Justice Johar Ali Khan and justice Raja Shakeel Ahmed as judges of G-B’s chief court for a term of one year by the prime minister in spite of the advice to the contrary by the governor.

The petition contended that the people of Gilgit-Baltistan have the right to “self-government” under Article 257 of the Constitution.

It elaborated that the government and the cabinet of Gilgit-Baltistan comprise representatives elected by the people of Gilgit-Baltistan and the chief minister is elected by the assembly.

“They are responsible for protecting the fundamental rights of citizens, including the right to an independent judiciary and access to justice. The governor, on the other hand, is a nominee of the federal government. He is required in the performance of his functions to act on the advice of the chief minister or cabinet, as the case may be,” it stressed.

"Without being first advised by the chief minister or cabinet, under Article 34 of the Order 2018, the governor had no authority to advise the Prime Minister to appoint as judge of the chief court of Gilgit-Baltistan,” it argued and said the action suffers both from “malice in fact and in law”.

The petition stated that the appointment of Javed Ahmed by the federal government is entirely without lawful authority and of no legal effect.

"The respondent does not hold the office, to which he has been illegally and maliciously appointed, under any authority of law.”

It is stated that the PM was duty bound to act on the advice of the governor only where such advice was based on the advice of the chief minister or cabinet of Gilgit-Baltistan.

"The impugned extension notification is also without lawful authority and of no legal effect. Under Order, 2018 the prime minister is only an appointing authority. He had no authority to confirm an appointment or extend the appointment of a Judge contrary to or without the advice of the governor (which in turn must be based on the prior advice of the chief minister or cabinet). On the advice of the chief minister, the governor had advised confirmation of three judges of the chief court. The prime minister, however, without any lawful authority decided to extend the appointment of the Judges for another term of one year.”

The impugned extension notification is repugnant to Article 84 of the Order 2018 and even otherwise without lawful authority and of no legal effect, the petition stated.

"The two Impugned notifications violate the principles of independence of judiciary and rule of law. The Impugned notifications also suffer from both mala fide in law and in fact.”

The limits of the executive authority and discretion of the governor and prime minister in the appointment of judges of the Supreme Appellate Court and Chief Court of Gilgit-Baltistan are controlled by Articles 75 and 84 read with Article 34 of the Order 2018. The impugned notifications, however, violate these provisions and the settled conventions in the matter. These are, therefore, without lawful authority and of no legal effect.

"The appointment of respondent 3 and impugned appointment notification is repugnant to constitutional norms, provisions, rights and Fundamental Rights. The appointment is without lawful authority and of no legal effect.

"Similarly, the impugned extension notification is unconstitutional, without lawful authority and of no legal effect.

"The impugned notifications are contrary to a series of judgments of this hon’ble court including cases reported Al-Jehad Trust and Civil Aviation Authority (supra). This hon’ble court has consistently held that the right to self-government of Gilgit-Baltistan can only be guaranteed through an empowered G-B Assembly.”

"The petitioners have information that the process for appointment of Chief Judge and Judge(s) of Supreme Appellate Court and chief court without the advice of the chief minister or cabinet. All such appointments will be repugnant to Articles 75 and 84 of the Order 2018 read with Article 34 thereof. These will violate the constitutional and fundamental rights of the people of Gilgit-Baltistan and the chief minister.

The petition requested the Supreme Court to declare that Governor GB Mehdi Shah had no lawful authority to advise the Prime Minister for the appointment of Javed Ahmed as judge of the chief court.

Likewise, the CM requested the SC to declare the appointment of Javed Ahmed illegal. "Declare that the Respondent No.3 does not hold the office of judge of the chief court under any lawful authority, it is pleaded.

"Declare the Impugned Appointment Notification dated 16.09.2022 as without lawful authority and of no legal effect, quash it and consequently the appointment of Respondent No.3 as Judge of Chief Court, Gilgit-Baltistan.

Declare that the prime minister had no lawful authority to merely extend the appointment of Justice Malik Inayat-ur-Rehman, Justice Johar Ali Khan and Justice Raja Shakeel Ahmed for a term of one year and was in duty bound to confirm such appointments.

It is also pleaded the SC to direct the federal government to forthwith issue a fresh notification for confirmation of the judges as judges of the chief court, with effect from 16.09.2022.

"Prohibit the respondents 1 and 2, jointly and severally, from making any new appointments of Chief Judge or Judge(s) of Supreme Appellate Court as well as Chief Court of Gilgit-Baltistan without prior advice of the Chief Minister and/or cabinet of Gilgit-Baltistan" the petition prayed.