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| − | == The Upheaval in AJK Judiciary ==
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| − | The Upheaval in AJK Judiciary
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| − | By '''Human Rights Commission of Pakistan''', April-May 2010 </div>
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| − | [http://www.hrcp-web.org Human Rights Commission of Pakistan] </div>
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| − | Brief Introduction
| + | |
| − | The Human Rights Commission of Pakistan (HRCP) has
| + | |
| − | been following the judicial crisis brewing in ‘Azad’ Jammu and
| + | |
| − | Kashmir (‘‘AJK’’) for the last few years.
| + | |
| − | | + | |
| − | The appointment of Justice Reaz Akhtar Chaudhry as Chief
| + | |
| − | Justice of the ‘‘AJK’’ Supreme Court in October 2006 had
| + | |
| − | sparked a controversy as he was not only junior to Justice
| + | |
| − | Manzoor Hussain Gillani of the ‘‘AJK’’ Supreme Court, but had
| + | |
| − | merely spent 25 days as a judge of the apex court when he
| + | |
| − | was given the top judicial slot.
| + | |
| − | | + | |
| − | A number of petitions were filed in the ‘‘AJK’’ High Court and
| + | |
| − | the Supreme Court of Pakistan by lawyers and members of
| + | |
| − | ‘‘AJK’’ superior judiciary, challenging appointment of judges to
| + | |
| − | superior courts in ‘‘AJK’’.
| + | |
| − | | + | |
| − | Several lawyers alleged that appointments of judges to the
| + | |
| − | ‘‘AJK’’ superior courts have been made mainly on political
| + | |
| − | considerations, partly because the ‘‘AJK’’ Chief Election
| + | |
| − | Commissioner, who oversees the elections in ‘‘AJK’’, is
| + | |
| − | designated from among superior court judges of ‘‘AJK’’.
| + | |
| − | They hold that the crisis of judiciary in ‘‘AJK’’ has emerged
| + | |
| − | following a split within the ruling Muslim Conference (MC),
| + | |
| − | with the ‘‘AJK’’ Prime Minister and the Speaker of the
| + | |
| − | Legislative Assembly on one side and the President and the
| + | |
| − | MC chief on the other. The crisis intensified when the ‘‘AJK’’
| + | |
| − | Prime Minister sent a reference of misconduct against ‘‘AJK’’
| + | |
| − | Chief Justice Reaz Chaudhry to the Acting President on April
| + | |
| − | 3, which was duly sent to the senior-most judge of the
| + | |
| − | Supreme Court, Justice Gillani, and the Supreme Judicial
| + | |
| − | Council convened the same day and issued a notice to Chief
| + | |
| − | Justice Chaudhry and restrained him from performing his
| + | |
| − | duties.
| + | |
| − | | + | |
| − | The ‘‘AJK’’ President, who was on a foreign visit, rushed back
| + | |
| − | to Muzaffarabad, the ‘‘AJK’’ capital, and withdrew the reference,
| + | |
| − | reinstated Chief Justice Chaudhry, constituted another
| + | |
| − | Supreme Judicial Council and, without the advice of the ‘‘AJK’’
| + | |
| − | Prime Minister, and sent a reference to the newly constituted
| + | |
| − | body against the members of the Supreme Judicial Council
| + | |
| − | that had proceeded against Chief Justice Chaudhry.
| + | |
| − | | + | |
| − | It was in this context that with two chief Justices . one acting,
| + | |
| − | and one non-functional . and two Supreme Judicial Councils,
| + | |
| − | the ‘‘AJK’’ judiciary plunged into a full-blown crisis. The
| + | |
| − | predominant majority of members of the bar associations in
| + | |
| − | ‘‘AJK’’ supported the filing of a reference against Chief Justice
| + | |
| − | Chaudhry. Issues relating to the interpretations of the ‘‘AJK’’
| + | |
| − | Constitution as well as matters of propriety, conduct and the
| + | |
| − | exercise of discretion by members of the superior judiciary
| + | |
| − | came into focus. The controversy also exposed the inherent
| + | |
| − | contradictions within the constitutional/legal setup of ‘‘AJK’’.
| + | |
| − | A fact-finding mission of the Commission visited ‘‘AJK’’
| + | |
| − | (Muzaffarabad) from April 23 to 25, 2010 and the ‘‘AJK’’ district
| + | |
| − | of Mirpur and Pakistan.s capital Isalamabad from April 30 to
| + | |
| − | May 1 to ascertain the facts and interview lawyers and other
| + | |
| − | members of civil society. The mission was headed by
| + | |
| − | Advocate Kamran Arif, HRCP Council member. The terms of
| + | |
| − | reference of the mission were as follows:
| + | |
| − | | + | |
| − | a) Whether the appointments of judges to the superior | + | |
| − | courts in ‘‘AJK’’ were being made on merit?
| + | |
| − | | + | |
| − | b) To what extent are international standards, including
| + | |
| − | those prescribed in the 1985 United Nations Basic
| + | |
| − | Principles on the Independence of the Judiciary,
| + | |
| − | being observed in ‘Azad’ Jammu and Kashmir?
| + | |
| − | | + | |
| − | c) To recommend legal and policy reforms/changes, if
| + | |
| − | needed.
| + | |
| − | | + | |
| − | On May 10, 2010, after the HRCP mission had returned from
| + | |
| − | ‘Azad’ Jammu and Kashmir, the Chief Justice of ‘‘AJK’’ Supreme
| + | |
| − | Court (SC), Justice Reaz Akhtar Chaudhry and the senior
| + | |
| − | most judge of the SC, Justice Manzoor Hussain Gillani both
| + | |
| − | resigned as judges. HRCP believes that their departure will
| + | |
| − | not remove the root causes of tension within the political and
| + | |
| − | judicial systems of ‘‘AJK’’. These must be addressed so that the
| + | |
| − | citizens of ‘‘AJK’’ can enjoy basic human rights, build a
| + | |
| − | democratic political system and the rule of law is
| + | |
| − | strengthened.
| + | |
| − | | + | |
| − | An independent judiciary is key to sustaining
| + | |
| − | any form of democratic transition and is instrumental in
| + | |
| − | guaranteeing basic rights of the people. HRCP apprehends
| + | |
| − | that denial of rights to the people of ‘‘AJK’’ will deepen the
| + | |
| − | crisis. Pakistan.s transition to a democratic system affords an
| + | |
| − | opportunity and obliges the Government of Pakistan to
| + | |
| − | respect democratic values in ‘‘AJK’’.
| + | |
| − | | + | |
| − | === Legal Framework === | + | |
| − | | + | |
| − | The Constitution of Pakistan (Article 257) acknowledges the
| + | |
| − | status of Jammu and Kashmir, stating that when the people of
| + | |
| − | the State of Jammu and Kashmir decide to accede to
| + | |
| − | Pakistan, the relationship between the two shall be
| + | |
| − | determined in accordance with the wishes of the people of the
| + | |
| − | State. The ‘Azad’ Jammu and Kashmir Interim Constitution
| + | |
| − | Act, 1974 provides for a parliamentary form of government
| + | |
| − | based on a system of adult franchise.
| + | |
| − | | + | |
| − | 1 However, the ‘‘AJK’’Interim Constitution gives essential powers to the Chief
| + | |
| − | Executive of Pakistan, for example, laws cannot be enacted
| + | |
| − | by the ‘‘AJK’’ Legislative Assembly regarding defence, security,
| + | |
| − | currency, external affairs, foreign trade, foreign aid and
| + | |
| − | several other items enumerated in the Third Schedule of the
| + | |
| − | ‘‘AJK’’ Interim Constitution.
| + | |
| − | | + | |
| − | 2 Section 56 of the Interim Constitution gives the Government of Pakistan powers to take
| + | |
| − | .such action as it may consider necessary or expedient for
| + | |
| − | the effective discharge of. responsibilities granted to
| + | |
| − | Pakistan.
| + | |
| − | | + | |
| − | These provisions have often been used by the Government of
| + | |
| − | Pakistan to dismiss and install governments in ‘‘AJK’’.
| + | |
| − | | + | |
| − | The ‘Azad’ Jammu and Kashmir Council, commonly known as
| + | |
| − | ‘‘AJK’’ Council or Kashmir Council, has wide-ranging powers,
| + | |
| − | including the authority to appoint and dismiss judges of the
| + | |
| − | 1 Adult franchise was introduced in ‘‘AJK’’ in 1970.
| + | |
| − | | + | |
| − | 2 These include regulation of migration from or into ‘‘AJK’’ and admission
| + | |
| − | into and expulsion from ‘‘AJK’’, post, telegraph, telephones, mineral
| + | |
| − | resources, nuclear energy, aircraft, copyright, insurance, stock
| + | |
| − | exchange, corporations including banking, highways, census, police,
| + | |
| − | railways, natural gas and oil, electricity, newspapers, tax on income
| + | |
| − | other than from agricultural land, jurisdiction and powers of all courts
| + | |
| − | with respect to items under this list, etc.
| + | |
| − | | + | |
| − | superior courts in ‘‘AJK’’ and appointment of the Chief Election
| + | |
| − | Commissioner. The Kashmir Council consists of the Prime
| + | |
| − | Minister of Pakistan, the President of ‘‘AJK’’, five members
| + | |
| − | nominated by the Prime Minister of Pakistan from amongst
| + | |
| − | Federal Ministers and members of parliament, Prime Minister
| + | |
| − | of ‘‘AJK’’ or his representative, and six Kashmiri members
| + | |
| − | elected by the ‘‘AJK’’ Legislative Assembly. The Prime Minister
| + | |
| − | of Pakistan is the Chairman and the ‘‘AJK’’ President the Vice-
| + | |
| − | Chairman of the Kashmir Council. The Government of
| + | |
| − | Pakistan issued a memorandum dated June 24, 1970, in
| + | |
| − | which the Cabinet Division directed that as far as the affairs of
| + | |
| − | ‘‘AJK’’ are concerned, the region will for all practical purposes
| + | |
| − | be treated like any other province of the country.
| + | |
| − | | + | |
| − | 3 Section 42 of the ‘‘AJK’’ Interim Constitution prescribes the
| + | |
| − | method for appointment of judges to the superior courts. The
| + | |
| − | Chief Justice of the ‘‘AJK’’ Supreme Court is appointed by the
| + | |
| − | ‘‘AJK’’ President on the advice of the Kashmir Council.
| + | |
| − | | + | |
| − | Other judges of the Supreme Court are appointed by the President
| + | |
| − | on the advice of the Kashmir Council after consultation with
| + | |
| − | the Chief Justice of the ‘‘AJK’’ Supreme Court. A similar formula
| + | |
| − | applies to the appointment of judges to the High Court.
| + | |
| − | | + | |
| − | Under the ‘‘AJK’’ Constitution, the President is bound by the advice of
| + | |
| − | the ‘‘AJK’’ Prime Minister and can only act upon that advice.
| + | |
| − | | + | |
| − | The ‘‘AJK’’ Supreme Judicial Council deals with the
| + | |
| − | accountability of judges. The Chairman of the Kashmir
| + | |
| − | Council (Prime Minister of Pakistan) or the ‘‘AJK’’ President can
| + | |
| − | send a reference against a judge to the SJC. After inquiring
| + | |
| − | into the allegations the SJC reports to the Chairman of the
| + | |
| − | Kashmir Council.
| + | |
| − | | + | |
| − | Section 21 (14) of the ‘‘AJK’’ Interim Constitution provides that
| + | |
| − | the words .Prime Minister of Pakistan. shall be deemed to
| + | |
| − | include the person who may be performing the functions of
| + | |
| − | the Chief Executive of Pakistan. Thus it took care of long
| + | |
| − | periods of military rule in Pakistan.
| + | |
| − | | + | |
| − | The Chief Election Commissioner of ‘‘AJK’’ is appointed by the
| + | |
| − | ‘‘AJK’’ President on the advice of the Kashmir Council.
| + | |
| − | 3 Memorandum No. 8/9/70/ (Coord.1), PLD 2006 Lahore 465, Mst
| + | |
| − | Naseem Akhtar versus DG Immigration and others.
| + | |
| − | | + | |
| − | Judicial Saga of the State of ‘Azad’
| + | |
| − | Jammu and Kashmir
| + | |
| − | 1. On September 26, 2006, Justice Reaz Akhtar
| + | |
| − | Chaudhry, former Chief Justice of the ‘‘AJK’’ High Court was
| + | |
| − | elevated to the Supreme Court.
| + | |
| − | | + | |
| − | Twenty-five days later he was appointed Chief Justice of the ‘‘AJK’’ Supreme Court,
| + | |
| − | superseding Justice Manzoor Hussain Gillani, who was
| + | |
| − | elevated to the ‘‘AJK’’ Supreme Court two years earlier . in
| + | |
| − | August 2004. Justice Gillani had also served as Chief Justice
| + | |
| − | of ‘‘AJK’’ High Court (2001-2004) before his elevation to the
| + | |
| − | Supreme Court.
| + | |
| − | | + | |
| − | 2.On September 28, 2006, Justice Sardar Muhammad
| + | |
| − | Nawaz Khan was appointed acting Chief Justice of the ‘‘AJK’’
| + | |
| − | High Court. For as long as CJ Chaudhry remained in office,
| + | |
| − | Justice Sardar Nawaz Khan was not confirmed as Chief
| + | |
| − | Justice of the ‘‘AJK’’ High Court. He remained acting Chief
| + | |
| − | Justice of the ‘‘AJK’’ High Court for almost three and a half
| + | |
| − | years.
| + | |
| − | | + | |
| − | 3. In January 2007, advocates Rafiullah Sultani and
| + | |
| − | Muhammad Yunis Tahir were appointed as judges of the ‘‘AJK’’
| + | |
| − | High Court.
| + | |
| − | | + | |
| − | ‘‘AJK’’ lawyers complained that the appointment
| + | |
| − | was not legal as only Justice Chaudhry, the ‘‘AJK’’ Supreme
| + | |
| − | Court chief justice at the time, was consulted.
| + | |
| − | | + | |
| − | Justice Sardar Muhammad Nawaz Khan, the Acting CJ of the ‘‘AJK’’ High
| + | |
| − | Court was not consulted. Eight advocates filed a writ petition
| + | |
| − | in the ‘‘AJK’’ High Court on March 21, 2007, praying that the
| + | |
| − | notification appointing Justice Sultani and Justice Tahir to the
| + | |
| − | ‘‘AJK’’ High Court be declared void.
| + | |
| − | | + | |
| − | In their petition the petitioners alleged that the two newly appointed judges had
| + | |
| − | close links with Chief Justice Chaudhry and that they hosted
| + | |
| − | special dinners and receptions for Chief Justice Chaudhry.
| + | |
| − | | + | |
| − | The media carried events and statements eulogizing the ‘‘AJK’’
| + | |
| − | CJ.4 The ‘‘AJK’’ Advocate General made some preliminary
| + | |
| − | objections to the writ petition filed in March 2007 and refuted
| + | |
| − | some assertions.
| + | |
| − | | + | |
| − | The ‘‘AJK’’ government asserted that prior to
| + | |
| − | the appointment of the two judges both Chief Justices were
| + | |
| − | consulted; Justice Chaudhry when he was CJ of the ‘‘AJK’’ High
| + | |
| − | Court and again Justice Chaudhry as CJ of the ‘‘AJK’’ Supreme
| + | |
| − | Court.
| + | |
| − | | + | |
| − | The ‘‘AJK’’ High Court eventually nullified the
| + | |
| − | appointment of Justice Sultani and Justice Tahir as judges of
| + | |
| − | the ‘‘AJK’’ High Court on April 30, 2010.
| + | |
| − | | + | |
| − | 4. Chief Justice Chaudhry set up a monitoring cell in the
| + | |
| − | ‘‘AJK’’ Supreme Court on November 19, 2006, under Section
| + | |
| − | 42-A of the ‘‘AJK’’ Interim Constitution and assumed what
| + | |
| − | amounted to original jurisdiction under that section and
| + | |
| − | argued that the Supreme Court required to have those
| + | |
| − | powers for .doing complete justice..
| + | |
| − | | + | |
| − | 5 Unlike the Supreme Court of Pakistan, the ‘‘AJK’’ Supreme Court does not have
| + | |
| − | original jurisdiction and therefore Justice Chaudhry.s
| + | |
| − | detractors argued that the jurisdiction he had assumed to
| + | |
| − | himself was beyond the scope of the ‘‘AJK’’ Interim
| + | |
| − | Constitution.
| + | |
| − | | + | |
| − | Members of the bar made serious allegations of
| + | |
| − | misuse of this acquired jurisdiction through the monitoring
| + | |
| − | cell. The matter was subsequently taken up by the ‘‘AJK’’
| + | |
| − | Supreme Judicial Council and its findings reveal that a
| + | |
| − | number of scandalous judgments were delivered by CJ
| + | |
| − | Chaudhry under this acquired jurisdiction.
| + | |
| − | | + | |
| − | 5. On March 27, 2007, another set of lawyers filed
| + | |
| − | another petition in the ‘‘AJK’’ High Court challenging the
| + | |
| − | appointment of Justice Chaudhry as Chief Justice of the ‘‘AJK’’
| + | |
| − | Supreme Court.
| + | |
| − | | + | |
| − | 6 This prompted a sharp reaction from the
| + | |
| − | Supreme Court, which ordered the confiscation of both
| + | |
| − | petitions challenging appointments of judges.
| + | |
| − | | + | |
| − | A contempt notice was issued to the Registrar of the ‘‘AJK’’ High Court and
| + | |
| − | police raided the premises of the High Court on the orders of
| + | |
| − | 4 Shaukat Aziz and others versus ‘Azad’ Government and others. ‘‘AJK’’
| + | |
| − | High Court.
| + | |
| − | | + | |
| − | 5 Section 42-A, ‘‘AJK’’ Interim Constitution Act, 1974.
| + | |
| − | | + | |
| − | 6 Sardar Karam Dad Khan and others versus Chairman ‘Azad’ Jammu
| + | |
| − | and Kashmir Council and others. Writ Petition No. 362/2010, ‘‘AJK’’ High
| + | |
| − | Court.
| + | |
| − | | + | |
| − | the ‘‘AJK’’ Supreme Court. The ‘‘AJK’’ Supreme Court directed
| + | |
| − | the registrar of the High Court to submit the record of the two
| + | |
| − | petitions to the Supreme Court and the files remained in the
| + | |
| − | possession of Justice Chaudhry, then CJ of the ‘‘AJK’’ Supreme
| + | |
| − | Court, until a reference was filed against him in April 2010.
| + | |
| − | | + | |
| − | 6. The controversy refused to subside. Three
| + | |
| − | constitutional petitions were filed in the Supreme Court of
| + | |
| − | Pakistan in 2009 . by 17 lawyers,7 Justice Manzoor Hussain
| + | |
| − | Gillani of the ‘‘AJK’’ Supreme Court and Justice Sardar
| + | |
| − | Muhammad Nawaz Khan, acting Chief Justice of the ‘‘AJK’’
| + | |
| − | High Court.
| + | |
| − | | + | |
| − | 7. Lawyers of the ‘‘AJK’’ bar alleged that CJ Chaudhry
| + | |
| − | abused his office and harassed and intimated lawyers and
| + | |
| − | judges in cahoots with the bureaucracy of ‘‘AJK’’.
| + | |
| − | | + | |
| − | The petitioners said that they had approached the Supreme Court
| + | |
| − | of Pakistan out of desperation. The petition raised serious
| + | |
| − | allegations regarding the manner of appointment of Justice
| + | |
| − | Chaudhry to head the ‘‘AJK’’ Supreme Court.
| + | |
| − | | + | |
| − | The petitioners alleged that the decision was made by then President of
| + | |
| − | Pakistan General (r) Pervez Musharraf on the behest of the
| + | |
| − | political group elected in the 2006 general elections for the
| + | |
| − | ‘‘AJK’’ Legislative Assembly.
| + | |
| − | | + | |
| − | They claimed that the ruling political group in ‘‘AJK’’ had met President Musharraf on the day the order was conveyed to the Prime Minister of Pakistan.
| + | |
| − | | + | |
| − | The matter was also taken up in the ‘‘AJK’’ Legislative
| + | |
| − | Assembly where the law minister, Sardar Abdul Rashid
| + | |
| − | Abbasi, stated that the appointment was not made by the ‘‘AJK’’
| + | |
| − | Government but by the Kashmir Council.Former ‘‘AJK’’ prime minister Sardar Attique Khan also made similar statements.
| + | |
| − | | + | |
| − | 8. Justice Sardar Muhammad Nawaz Khan, acting Chief
| + | |
| − | Justice of the ‘‘AJK’’ High Court, filed a constitutional petition in
| + | |
| − | the Supreme Court of Pakistan. In his petition, he also leveled
| + | |
| − | serious charges of corrupt practices against the Musharraf
| + | |
| − | regime in collaboration with Chief Justice Chaudhry.
| + | |
| − | | + | |
| − | He alleged that a post fell vacant in the ‘‘AJK’’ Supreme Court on
| + | |
| − | January 19, 2005. The then ‘‘AJK’’ Supreme Court Chief
| + | |
| − | 7 Tabassam Sadiq and others versus Government of Pakistan and
| + | |
| − | others. Supreme Court of Pakistan.
| + | |
| − | | + | |
| − | Justice, Khawaja Muhammad Saeed, recommended the
| + | |
| − | name of Justice Chaudhry to be appointed as a judge of the
| + | |
| − | Supreme Court, and the senior most judge in the ‘‘AJK’’ High
| + | |
| − | Court (the petitioner) to be appointed Chief Justice of the ‘‘AJK’’
| + | |
| − | High Court.
| + | |
| − | | + | |
| − | According to the petitioner, Justice Saeed, the
| + | |
| − | outgoing ‘‘AJK’’ CJ, categorically stated that if Justice Chaudhry
| + | |
| − | wanted to remain CJ of the ‘‘AJK’’ High Court the judge next in
| + | |
| − | seniority should be elevated to the ‘‘AJK’’ Supreme Court.
| + | |
| − | | + | |
| − | Both recommendations were transmitted to the ‘‘AJK’’ President, as
| + | |
| − | well as Prime Minister of Pakistan Mr. Shaukat Aziz. The
| + | |
| − | proposal, it was alleged, was kept pending, until the
| + | |
| − | conclusion of the 2006 general elections in ‘‘AJK’’. Justice
| + | |
| − | Chaudhry was holding two posts at the time.
| + | |
| − | | + | |
| − | Chief Justice of the ‘‘AJK’’ High Court and Acting Chief Election Commissioner
| + | |
| − | of ‘‘AJK’’. The petitioner alleged that after installing a
| + | |
| − | government in ‘‘AJK’’ of the choice of President Musharraf, the
| + | |
| − | Prime Minister of Pakistan advised the appointment of the
| + | |
| − | petitioner as judge of the Supreme Court in the second week
| + | |
| − | of September 2006.
| + | |
| − | | + | |
| − | However, the file was immediately withdrawn by some officials of the central government. The petitioner was appointed Acting Chief Justice of the ‘‘AJK’’ High
| + | |
| − | Court, while Justice Chaudhry was elevated to the Supreme
| + | |
| − | Court of ‘‘AJK’’. The petitioner prayed that the Kashmir Council
| + | |
| − | Chairman (Prime Minister of Pakistan) be directed to act upon
| + | |
| − | the advice of the predecessor of ‘‘AJK’’ Supreme Court CJ
| + | |
| − | Chaudhry (Justice Khawaja Muhammad Saeed) and appoint
| + | |
| − | the petitioner as permanent Chief Justice of the ‘‘AJK’’ High
| + | |
| − | Court.
| + | |
| − | | + | |
| − | The petitioner also alleged that the ‘‘AJK’’ Chief Secretary, Mr
| + | |
| − | Khalid Sultan and Mr Feaz Akhtar Chaudhry, secretary
| + | |
| − | services of the Government of ‘‘AJK’’ and brother of Justice
| + | |
| − | Chaudhry, engineered adverse reports against the petitioner,
| + | |
| − | which were sent to the Prime Minister of Pakistan.
| + | |
| − | Some portions of the petition are reproduced below:
| + | |
| − | | + | |
| − | • The Prime Minister of Pakistan had played a questionable
| + | |
| − | role in handling the affairs of ‘‘AJK’’.
| + | |
| − | | + | |
| − | • The events since 2006, including the unconstitutional
| + | |
| − | appointment of the incumbent Chief Justice ‘‘AJK’’ instead
| + | |
| − | of the deserving and senior most judge, Justice Manzoor
| + | |
| − | Gillani, clearly speak a lot about the nonchalant attitude of
| + | |
| − | the Government of Pakistan, particularly the Prime
| + | |
| − | Minister of Pakistan, who due to his failure of duty has
| + | |
| − | destroyed the venerable institution of judiciary by
| + | |
| − | arbitrarily appointing the Chief Justice of the ‘‘AJK’’
| + | |
| − | Supreme Court and by not appointing a permanent Chief
| + | |
| − | Justice of the ‘‘AJK’’ High Court.
| + | |
| − | | + | |
| − | • Advising the appointment of the Chief Justice of the ‘‘AJK’’
| + | |
| − | High Court is the sole duty/function of the Prime Minister
| + | |
| − | of Pakistan, as Chairman of ‘‘AJK’’ Council, who has failed
| + | |
| − | [in performing that duty] and is continuously failing to
| + | |
| − | discharge the same in accordance with the constitution of
| + | |
| − | ‘‘AJK’’, UN resolutions and his obligations under the
| + | |
| − | constitution of Pakistan.
| + | |
| − | | + | |
| − | • That the judiciary of the ‘Azad’ Jammu and Kashmir cannot
| + | |
| − | be made slave of political pressures exerted by the
| + | |
| − | Government of Pakistan to achieve ulterior designs in
| + | |
| − | promoting their favorites contrary to established principles
| + | |
| − | of merit and seniority.
| + | |
| − | | + | |
| − | Justice Gillani - who was superseded by Justice Chaudhry as
| + | |
| − | the ‘‘AJK’’ Supreme Court Chief Justice - also filed a
| + | |
| − | constitutional petition in the Supreme Court of Pakistan
| + | |
| − | praying that the appointment of Justice Chaudhry be declared
| + | |
| − | illegal and that the Prime Minister of Pakistan be directed to
| + | |
| − | issue fresh advice on the principle of seniority. The petitioner
| + | |
| − | also claimed compensation for violation of his legitimate
| + | |
| − | constitutional right and for suffering mental agony and torture.
| + | |
| − | The irony is that while judges and lawyers of ‘‘AJK’’ were
| + | |
| − | approaching the Supreme Court of Pakistan to uphold the
| + | |
| − | principle of legitimate expectancy of seniority, the same was
| + | |
| − | being overlooked by the Supreme Court of Pakistan itself.
| + | |
| − | Some portions of the petition filed by Justice Gillani are
| + | |
| − | reproduced below:
| + | |
| − | | + | |
| − | • It is the Government of Pakistan which makes the
| + | |
| − | decision with respect to the said appointment, the ‘‘AJK’’
| + | |
| − | Council is only a device. This fact was clearly stated by
| + | |
| − | the law minister of the ‘‘AJK’’ on the floor of the Legislative
| + | |
| − | Assembly on January 10, 2007, according to whom the
| + | |
| − | appointment was not made by the Government of ‘‘AJK’’ but
| + | |
| − | Pakistan and the Government of ‘‘AJK’’ had absolutely no
| + | |
| − | role to play in the entire process. Thus, the Government
| + | |
| − | of Pakistan, as custodian of rights of the people of
| + | |
| − | Pakistan, was required to act in all fairness of things by
| + | |
| − | adhering to the provisions of the Constitution,
| + | |
| − | constitutional conventions and principles of law as settled
| + | |
| − | by this honourable court.
| + | |
| − | | + | |
| − | • That the petitioner, who had gone on long leave as a
| + | |
| − | protest was harassed, intimidated and pressurised to
| + | |
| − | resign, deprived of lawful entitlement of staff, security and
| + | |
| − | protocol. His kith and kin in the service were victimized. A
| + | |
| − | malicious campaign of character assassination was
| + | |
| − | unleashed against him with the connivance of the central
| + | |
| − | government officers and the incumbent Chief Justice [of
| + | |
| − | ‘‘AJK’’], but the petitioner kept on bearing it as judge so that
| + | |
| − | a symbol of resistance against injustice remains pricking
| + | |
| − | the conscience of those who witnessed and protested
| + | |
| − | against it.
| + | |
| − | | + | |
| − | 9. As soon as these petitions were heard by the
| + | |
| − | Supreme Court of Pakistan, two lawyers, Mujahid Hussain
| + | |
| − | Naqvi and Muhammad Maqbool War, filed a petition directly
| + | |
| − | in the Supreme Court of ‘‘AJK’’, challenging the authority of the
| + | |
| − | Supreme Court of Pakistan over matters relating to the
| + | |
| − | appointment of judges to the superior courts of ‘‘AJK’’.8 Despite
| + | |
| − | the fact that the ‘‘AJK’’ Supreme Court does not have original
| + | |
| − | jurisdiction, this petition was entertained. Later, it emerged
| + | |
| − | during the proceedings of the ‘‘AJK’’ Supreme Judicial Council
| + | |
| − | that both lawyer petitioners had been generously rewarded by
| + | |
| − | Chief Justice Chaudhry.
| + | |
| − | | + | |
| − | 10. Chief Justice Chaudhry constituted a three-member
| + | |
| − | bench headed by himself to hear the petition.9 The bench
| + | |
| − | issued orders restraining, amongst others, the Chairman of
| + | |
| − | 8 Sardar Muhammad Sayab Khalid and others versus
| + | |
| − | Federation/Government of Pakistan. ‘‘AJK’’ Supreme Court.
| + | |
| − | 9 Justice Manzoor Hussain Gillani.s petition was taken up in March 2010
| + | |
| − | by the Supreme Court of Pakistan. It was still pending when this report
| + | |
| − | went to press.
| + | |
| − | | + | |
| − | Kashmir Council and President of ‘‘AJK’’, from reviewing their
| + | |
| − | decision regarding the appointment of ‘‘AJK’’ CJ Chaudhry. The
| + | |
| − | judgment also made the following observations:
| + | |
| − | | + | |
| − | • The Supreme Court of Pakistan has no jurisdiction to
| + | |
| − | entertain any such kind of petition. The learned counsel
| + | |
| − | further argued that if the petition filed before the Supreme
| + | |
| − | Court of Pakistan [is] accepted or admitted, then it will
| + | |
| − | damage the Kashmir cause and it will be [a] violation of
| + | |
| − | Article 257 of the Constitution of Islamic Republic of
| + | |
| − | Pakistan and all sacrifices rendered by [the] poor people
| + | |
| − | of Kashmir will be destroyed and there will remain no
| + | |
| − | difference between Occupied Kashmir and the liberated
| + | |
| − | part of Kashmir.
| + | |
| − | | + | |
| − | • So we should not hesitate from protecting the
| + | |
| − | Constitution, the institutions of ‘Azad’ Jammu and Kashmir
| + | |
| − | and the State of ‘Azad’ Jammu and Kashmir. If we deviate
| + | |
| − | from our responsibilities, then history will never forgive us
| + | |
| − | and will also not forgive those who filed [the] petition [in
| + | |
| − | the Supreme Court of Pakistan] under Article 184 [of the
| + | |
| − | Pakistan Constitution] for quenching their thirst of
| + | |
| − | personal interests.
| + | |
| − | | + | |
| − | It will also not forgive those, who want
| + | |
| − | to spoil the State and all the institutions of ‘Azad’ Jammu
| + | |
| − | and Kashmir for petty gains. If we remain silent at this
| + | |
| − | stage, then we have to be answerable before Almighty
| + | |
| − | Allah and the poor nation and it will be treachery with the
| + | |
| − | sacrifices of people, who have lost their lives, parents,
| + | |
| − | properties and honours for the sake of freedom of
| + | |
| − | Kashmir. The lachrymose maledictions of such people will
| + | |
| − | ruin us. If the petition is admitted by the Supreme Court of
| + | |
| − | Pakistan at this stage or some direction is issued, then
| + | |
| − | the Kashmir cause will be pushed into such a quagmire
| + | |
| − | the result of which will be total debacle and ravage of the
| + | |
| − | stand on the Kashmir issue.
| + | |
| − | | + | |
| − | 11. In October 2009, there was a change in the ‘‘AJK’’
| + | |
| − | government and Raja Farooq Haider was sworn in as the 9th
| + | |
| − | prime minister of ‘‘AJK’’. The change of government deprived
| + | |
| − | CJ Chaudhry of political support from the Prime Minister.s
| + | |
| − | office. Lawyers interviewed by the HRCP fact-finding team
| + | |
| − | confirmed that the incumbent ‘‘AJK’’ Prime Minister was
| + | |
| − | backing Justice Gillani of the ‘‘AJK’’ Supreme Court and
| + | |
| − | lawyers were approached by the office of the Prime Minister
| + | |
| − | to represent Justice Gillani. The ‘‘AJK’’ President, however,
| + | |
| − | remained firmly behind Chief Justice Chaudhry and his office
| + | |
| − | approached lawyers to represent and support CJ Chaudhry.
| + | |
| − | | + | |
| − | 12. The President of ‘‘AJK’’, Raja Zulqarnain Khan, was on
| + | |
| − | a foreign visit when the Acting President of ‘‘AJK’’, on advice
| + | |
| − | from ‘‘AJK’’ Prime Minister Raja Farooq Haider, filed a
| + | |
| − | reference against Chief Justice Chaudhry on April 3, 2010
| + | |
| − | with the ‘‘AJK’’ Supreme Judicial Council. Under the law, the
| + | |
| − | reference was sent to the senior most judge of the ‘‘AJK’’
| + | |
| − | Supreme Court . who happened to be Justice Gillani. Unlike
| + | |
| − | the Constitution of Pakistan, the ‘‘AJK’’ Interim Constitution
| + | |
| − | clearly states that if at any time the Supreme Judicial Council
| + | |
| − | (SJC) is inquiring into the conduct of a judge who is a
| + | |
| − | member of the SJC, or a member of the SJC is absent or is
| + | |
| − | unable to act due to illness or any other cause, the judge next
| + | |
| − | in seniority will be appointed as a member of the SJC.10 ‘‘AJK’’
| + | |
| − | also has an official code of conduct for judges of the superior
| + | |
| − | courts.
| + | |
| − | | + | |
| − | 11 An ad-hoc judge of the ‘‘AJK’’ Supreme Court was also
| + | |
| − | removed by the Acting President on the same day and the
| + | |
| − | ‘‘AJK’’ Advocate General, Muhammad Ibrahim Zia, was
| + | |
| − | appointed as an ad-hoc judge of the Supreme Court and
| + | |
| − | made a member of the SJC constituted to hear the reference
| + | |
| − | against CJ Chaudhry.
| + | |
| − | | + | |
| − | It is obvious that battle lines had been drawn between former
| + | |
| − | judges Chaudhry and Gillani as well as between the
| + | |
| − | President and Prime Minister of ‘‘AJK’’. To have former Justice
| + | |
| − | Gillani head the hearing of a reference against Chief Justice
| + | |
| − | Chaudhry was akin to condemning the accused before he
| + | |
| − | was even heard. The Gillani-headed SJC passed an
| + | |
| − | immediate order restraining Chief Justice Chaudhry from
| + | |
| − | performing his functions as head of the ‘‘AJK’’ Supreme Court.
| + | |
| − | 10 Section 42-E(8) of the ‘‘AJK’’ Interim Constitution Act, 1974.
| + | |
| − | 11 The Code of Conduct for Judges of Superior Courts, framed by the
| + | |
| − | Supreme Judicial Council under Section 42-E(7) of the ‘‘AJK’’ Interim
| + | |
| − | Constitution Act, 1974.
| + | |
| − | | + | |
| − | 13. The ‘‘AJK’’ president cut short his foreign visit and
| + | |
| − | returned to Muzaffarabad on April 3, 2010. On the very next
| + | |
| − | day, he ordered the withdrawal of the reference against Chief
| + | |
| − | Justice Chaudhry, reinstated him as the ‘‘AJK’’ Chief Justice
| + | |
| − | and sent a reference of misconduct against Justice Gillani
| + | |
| − | and other members of the Gillani-headed SJC to Chief
| + | |
| − | Justice Chaudhry. The President took that action without the
| + | |
| − | advice of the ‘‘AJK’’ Prime Minister.
| + | |
| − | | + | |
| − | 14. Meanwhile, the SJC headed by Justice Gillani
| + | |
| − | convened the proceedings in Court Room No. 1, in the
| + | |
| − | Supreme Court premises. Media including television channels
| + | |
| − | were given unprecedented access. CJ Chaudhry refused to
| + | |
| − | join the proceedings. The SJC headed by Justice Chaudhry
| + | |
| − | held its proceedings in a rest house in Mirpur. Justice Gillani
| + | |
| − | did not appear before the council.
| + | |
| − | | + | |
| − | The reference against CJ Chaudhry sought inquiry on
| + | |
| − | six grounds:
| + | |
| − | | + | |
| − | a) Keeping the record of a writ petition filed in the
| + | |
| − | [‘‘AJK’’] High Court against the learned judge in his
| + | |
| − | possession for more than two years without taking
| + | |
| − | any action on the part of the learned judge.
| + | |
| − | | + | |
| − | b) Keeping the record of a writ petition filed against
| + | |
| − | two learned judges of the ‘‘AJK’’ High Court in
| + | |
| − | possession for more than two years without taking
| + | |
| − | any proceedings, constitutes abuse of office,
| + | |
| − | mala-fide action and misconduct on part of the
| + | |
| − | learned judge.
| + | |
| − | | + | |
| − | c) Usurping/assuming and exercising jurisdiction
| + | |
| − | under Section 42-A of the Constitution [i.e.
| + | |
| − | establishment of a monitoring cell in the ‘‘AJK’’
| + | |
| − | Supreme Court] by the learned judge in his
| + | |
| − | capacity as Chief Justice of Supreme Court,
| + | |
| − | which jurisdiction does not vest in the Supreme
| + | |
| − | Court under the Constitution or law, amounts to
| + | |
| − | violation/subversion of the Constitution and
| + | |
| − | misconduct on part of the learned judge.
| + | |
| − | | + | |
| − | Constituting a bench in the matter in which he
| + | |
| − | was personally interested, headed by him,
| + | |
| − | authoring order and issuing process against the
| + | |
| − | [‘‘AJK’’] President and Chairman ‘‘AJK’’ Council is | + | |
| − | mala-fide and misconduct on the part of the
| + | |
| − | learned judge.
| + | |
| − | | + | |
| − | d) The learned judge has committed blasphemy
| + | |
| − | while attributing .wrongdoings. to the prophets
| + | |
| − | and has committed grave misconduct.
| + | |
| − | | + | |
| − | e) The learned judge has committed gross violation
| + | |
| − | of the rules and misconduct while extending
| + | |
| − | benefits to the petitioners of the application filed
| + | |
| − | under Section 42-A referred to in Para 3 above by
| + | |
| − | re-employing the father-in-law of Mr. Maqbool
| + | |
| − | War Advocate, a hardly matriculate retired officer
| + | |
| − | (retired in BPS-18) and bestowing on him charge
| + | |
| − | of Registrar of the Supreme Court (a BPS-22
| + | |
| − | assignment); appointing Mr. War.s nephew as
| + | |
| − | protocol officer in BPS-18 in violation and
| + | |
| − | disregard of rules; extending to Mr. Mujahid
| + | |
| − | Hussain Naqvi a monetary benefit worth more
| + | |
| − | than 10 million rupees.
| + | |
| − | | + | |
| − | Assuming/usurping and exercising jurisdiction by the learned
| + | |
| − | judge as Chief Justice of Supreme Court in the shape of
| + | |
| − | .Monitoring Cell. which is not available to the Supreme Court
| + | |
| − | under the Constitution or any other law, amounts to
| + | |
| − | violation/subversion of the Constitution, male-fide act and
| + | |
| − | misconduct on the part of the learned judge.
| + | |
| − | | + | |
| − | 15. The SJC headed by Justice Gillani completed its
| + | |
| − | findings on April 12, 2010 and sent them to the Kashmir
| + | |
| − | Council Chairman. Under the ‘‘AJK’’ Interim Constitution, if,
| + | |
| − | after an inquiry, the SJC is of the opinion that a judge should
| + | |
| − | be removed from office, the Kashmir Council Chairman .shall.
| + | |
| − | advise the President to act accordingly.12
| + | |
| − | | + | |
| − | 16. The report of the reference is revealing. Chief Justice
| + | |
| − | Chaudhry was found guilty of misconduct on all six charges.
| + | |
| − | | + | |
| − | 17. In a judgment which was overturned by Chief Justice
| + | |
| − | Chaudhry in review, he had observed: .Even the Holy
| + | |
| − | 12 Section 42-E of the ‘‘AJK’’ Interim Constitution, 1974.
| + | |
| − | Prophets and the pious persons whenever found that some
| + | |
| − | error was committed by them, they immediately sought
| + | |
| − | forgiveness and refuge from God and reviewed their
| + | |
| − | wrongdoings."13 The review petition was entertained even
| + | |
| − | though it was barred by the statute of limitation because it
| + | |
| − | was filed six years after the period of limitation for filing a
| + | |
| − | review had ended and lawyers allege it was another judgment
| + | |
| − | favoring the CJ.s cronies.
| + | |
| − | | + | |
| − | Both sides obtained a number of fatwas (religious edicts) regarding the controversy of the alleged blasphemy. The SJC headed by Justice Gillani came
| + | |
| − | to the conclusion that blasphemy was committed and that the
| + | |
| − | former CJ should be prosecuted for that. However, the
| + | |
| − | president supported the fatwas exonerating CJ Chaudhry.
| + | |
| − | The findings of the SJC headed by Justice Gillani were that
| + | |
| − | Justice Chaudhry extended favors to lawyers who filed
| + | |
| − | petitions on his behalf. The petitioners of Constitutional
| + | |
| − | Petition 1 of 2010, challenging the petitions filed in the
| + | |
| − | Supreme Court of Pakistan, were generously rewarded. The
| + | |
| − | petitioners in this case were advocates Mujahid Hussain
| + | |
| − | Naqvi and Muhammad Maqbool War. The father-in-law of
| + | |
| − | advocate War was reemployed after his retirement and was
| + | |
| − | appointed as registrar of the Supreme Court, although he
| + | |
| − | lacked academic qualifications for the position. Mr. War.s
| + | |
| − | nephew was appointed as protocol officer of the ‘‘AJK’’
| + | |
| − | Supreme Court, even though the rules did not provide for any
| + | |
| − | such post.
| + | |
| − | | + | |
| − | Advocate Naqvi was also rewarded. It was his review petition
| + | |
| − | that earned CJ Chaudhry the wrath of lawyers who went to
| + | |
| − | the extent of accusing him of blasphemy. Naqvi was
| + | |
| − | dismissed from government service in 1998. His case finally
| + | |
| − | turned up at the Supreme Court. The former CJ ‘‘AJK’’ decided
| + | |
| − | in favour of Mr Naqvi, while the main case remained pending.
| + | |
| − | As a consequence the judgment fetched the petitioner 10
| + | |
| − | million rupees.
| + | |
| − | | + | |
| − | According to the findings of the SJC headed by Justice
| + | |
| − | Gillani, the jurisdiction acquired by the Supreme Court under
| + | |
| − | 13 Mujahid Hussain Naqvi versus ‘Azad’ Government and others, PLJ
| + | |
| − | 2007 SC (‘‘AJK’’) 163.
| + | |
| − | | + | |
| − | the Monitoring Cell was roundly abused. Hundreds of files
| + | |
| − | were maintained in the name of Monitoring Cell, which were
| + | |
| − | taken in possession by the SJC headed by Justice Gillani.
| + | |
| − | | + | |
| − | These files, according to the SJC headed by Justice Gillani,
| + | |
| − | were not entered in any register, neither were they taken up
| + | |
| − | under any provision of law. Their perusal revealed that
| + | |
| − | government officers were summoned, admonished and made
| + | |
| − | to agree to carry out oral orders issued by Chief Justice
| + | |
| − | Chaudhry. Lawyers and members of the public produced
| + | |
| − | several purported stay orders before the SJC headed by
| + | |
| − | Justice Gillani, through which benefits and favors were
| + | |
| − | showered but there was no record of them on the files. In a
| + | |
| − | typical example, an order captioned, .Chaudhry Muhammad
| + | |
| − | Siddique versus Deputy Commissioner. dated March 06,
| + | |
| − | 2008, directed the Deputy Commissioner Mirpur to hand over
| + | |
| − | 18 kanals of land owned by WAPDA to Muhammad Siddique.
| + | |
| − | The SJC headed by Justice Gillani reported that in several
| + | |
| − | cases Chief Justice Chaudhry had obliged his family
| + | |
| − | members, friends and decided cases in favour of his cronies.
| + | |
| − | | + | |
| − | There were allegations of bypassing rules to promote the
| + | |
| − | children of CJ Chaudhry. His son was appointed as District
| + | |
| − | Food Controller on an ad-hoc basis. Rules required at least a
| + | |
| − | 2nd Division in the prescribed academic qualification for the
| + | |
| − | post. CJ Chaudhry.s son had passed his exam in the 3rd
| + | |
| − | Division. He was also exempted from taking a written
| + | |
| − | examination. Justice Chaudhry.s daughter.s examination
| + | |
| − | papers were ordered to be sent to the Chief Justice .for
| + | |
| − | perusal.. Her marks were later increased.
| + | |
| − | | + | |
| − | 18. The Supreme Judicial Council headed by Justice
| + | |
| − | Chaudhry allegedly convened at a rest house in Mirpur on
| + | |
| − | April 22 and proceeded against the respondent judges on an
| + | |
| − | ex-parte basis, recorded no evidence and compiled its
| + | |
| − | findings and recommendations and submitted them to the
| + | |
| − | ‘‘AJK’’ Council Chairman.
| + | |
| − | | + | |
| − | The Kashmir Council Chairman (Prime Minister of Pakistan)
| + | |
| − | had before him two reports from two different Supreme
| + | |
| − | Judicial Councils from ‘‘AJK’’, one headed by Justice Gillani
| + | |
| − | which had the support of the Government of ‘‘AJK’’ and of the
| + | |
| − | predominant majority of the public and lawyers and the other
| + | |
| − | headed by Chief Justice Chaudhry. The legal status of the
| + | |
| − | second SJC was in doubt and it had not conducted any
| + | |
| − | apparent proceedings, but had the support of the Pakistan
| + | |
| − | People.s Party (PPP) ‘‘AJK’’. Rejecting the first SJC.s findings
| + | |
| − | was likely to lead to chaos and expansion in protests, while
| + | |
| − | rejecting the findings of the second SJC risked upsetting
| + | |
| − | leaders of the PPP in ‘‘AJK’’.
| + | |
| − | | + | |
| − | The Kashmir Council Chairman chose a third option. He
| + | |
| − | forced both Chief Justice Chaudhry and Justice Gillani to
| + | |
| − | resign, rendering reports of both SJCs redundant.
| + | |
| − | | + | |
| − | 19. On April 30, the ‘‘AJK’’ High Court nullified the
| + | |
| − | appointments of Justice Rafiullah Sultani and Justice
| + | |
| − | Mohammad Yunis Tahir (challenged in the petition titled
| + | |
| − | Shaukat Aziz and others Vs ‘Azad’ Government and others).
| + | |
| − | | + | |
| − | A number of political activists lamented that candidates and
| + | |
| − | political parties in ‘‘AJK’’ continue to be disqualified from
| + | |
| − | contesting elections as the ‘‘AJK’’ Interim Constitution bars a
| + | |
| − | person or political party from acting or propagating against
| + | |
| − | the ideology of the State.s accession to Pakistan. This gives
| + | |
| − | wide powers for rigging. A number of petitions as well as
| + | |
| − | interviews with people including lawyers and members of civil
| + | |
| − | society gave numerous examples of how intelligence
| + | |
| − | agencies control elections and appointments in ‘‘AJK’’. It is
| + | |
| − | widely alleged that the decision to appoint CJ Chaudhry was
| + | |
| − | made by the security establishment in Pakistan.
| + | |
| − | | + | |
| − | 20. Justice Chaudhry and Justice Gillani are no longer
| + | |
| − | part of the ‘‘AJK’’ superior judiciary. The ‘‘AJK’’ High Court finally
| + | |
| − | disposed off the petition against CJ Chaudhry on April 7,
| + | |
| − | 2010.
| + | |
| − | | + | |
| − | But interference in the appointment of judges in ‘‘AJK’’ has not
| + | |
| − | ended. Lawyers in ‘‘AJK’’ have ended their protests but surely
| + | |
| − | the issue was not about the appointment of one individual but
| + | |
| − | graver issues are at stake in ‘‘AJK’’. The Human Rights
| + | |
| − | Commission of Pakistan can only hope that institutional
| + | |
| − | changes rather than the change of a few faces will be
| + | |
| − | adopted as a policy in ‘‘AJK’’ and by the Government of
| + | |
| − | Pakistan.
| + | |
| − | | + | |
| − | === Conclusions and Recommendations ===
| + | |
| − | | + | |
| − | This report makes the following recommendations for
| + | |
| − | constructively addressing the situation in ‘Azad’ Jammu and
| + | |
| − | Kashmir. The recommended measures are limited to the
| + | |
| − | mandate of the mission and are only the first few steps
| + | |
| − | towards a genuine transition to a democratic system and
| + | |
| − | extending rights to the people of the State of ‘Azad’ Jammu
| + | |
| − | and Kashmir.
| + | |
| − | | + | |
| − | i. The people and the government of the State of ‘Azad’
| + | |
| − | Jammu and Kashmir do not enjoy autonomy and many of
| + | |
| − | the basic rights that are fundamental in building a
| + | |
| − | democratic culture and political system. After the passage
| + | |
| − | of the 18th Constitutional Amendment in Pakistan,
| + | |
| − | provincial autonomy is far better recognized in Pakistan,
| + | |
| − | and the same should extend to ‘Azad’ Jammu and Kashmir
| + | |
| − | as promised through a memorandum of 1970, where, for
| + | |
| − | all practical purposes, the affairs of ‘Azad’ Jammu and
| + | |
| − | Kashmir were to be generally carried out in the same
| + | |
| − | manner as any other province of Pakistan. New political
| + | |
| − | developments in Pakistan and increasing awareness of
| + | |
| − | rights in the region makes it even more crucial that policy
| + | |
| − | and legal reform be introduced in ‘Azad’ Jammu and
| + | |
| − | Kashmir.
| + | |
| − | | + | |
| − | ii. The embarrassing controversy over the appointment of
| + | |
| − | judges reveals the constant manipulation of the judiciary
| + | |
| − | in ‘‘AJK’’ by the executive in ‘‘AJK’’ and various institutions in
| + | |
| − | Pakistan through the Kashmir Council. As a consequence
| + | |
| − | of this interference, the judiciary in ‘‘AJK’’ is politicized. This
| + | |
| − | must end in order to strengthen the justice system in
| + | |
| − | ‘Azad’ Jammu and Kashmir. It is therefore critical that all
| + | |
| − | appointments and promotions of judges of the superior
| + | |
| − | courts in ‘Azad’ Jammu and Kashmir are made on merit,
| + | |
| − | through a proper consultative process and without
| + | |
| − | capricious interference from the executive authorities
| + | |
| − | established through the constitutional framework of ‘Azad’
| + | |
| − | Jammu and Kashmir.
| + | |
| − | | + | |
| − | iii. The HRCP mission was informed that judges of superior
| + | |
| − | courts have been used to cover up irregularities during
| + | |
| − | and post elections. This has also been alleged in some
| + | |
| − | petitions filed against the appointment of the former Chief
| + | |
| − | Justice of the ‘Azad’ Jammu and Kashmir Supreme Court.
| + | |
| − | There appears to be weight in these allegations. In order
| + | |
| − | to remove serious doubts cast on the election process,
| + | |
| − | the appointment of the Chief Election Commissioner
| + | |
| − | should be made in consultation with the ‘‘AJK’’ Prime
| + | |
| − | Minister, leader of the Opposition and the Chief Justice of
| + | |
| − | ‘‘AJK’’ Supreme Court. A serving judge should not head the
| + | |
| − | Election Commission. These measures will need
| + | |
| − | legislative and policy changes.
| + | |
| − | | + | |
| − | iv. The ‘‘AJK’’ Election Commission should be made a
| + | |
| − | permanent and autonomous body.
| + | |
| − | | + | |
| − | v. Given the sensitive legal status of ‘‘AJK’’, it may not be
| + | |
| − | advisable to seek assistance of international bodies to
| + | |
| − | observe the electoral process in ‘Azad’ Jammu and
| + | |
| − | Kashmir. However, the people of ‘‘AJK’’ cannot be deprived
| + | |
| − | of civil society activism because of a long unresolved
| + | |
| − | dispute. To bridge this gap, civil society of Pakistan, in
| + | |
| − | particular, bar associations should monitor general
| + | |
| − | elections of ‘‘AJK’’.
| + | |
| − | | + | |
| − | vi. The bar associations of ‘‘AJK’’ have admirably challenged
| + | |
| − | the arbitrariness of judicial appointments. However, they
| + | |
| − | should have received more support from bar associations
| + | |
| − | of Pakistan. ‘‘AJK’’ bar associations should be encouraged
| + | |
| − | to hold events in ‘‘AJK’’ on relevant legal issues including
| + | |
| − | on the independence of the judiciary in order to
| + | |
| − | strengthen their links with civil society in Pakistan.
| + | |
| − | | + | |
| − | vii. HRCP was astonished at the allegation of blasphemy
| + | |
| − | made against the former Chief Justice of ‘‘AJK’’ Supreme
| + | |
| − | Court. The allegation was based on a sentence he wrote
| + | |
| − | in one of his judgments. Even though the backs of the
| + | |
| − | legal fraternity were pushed to the wall, such dangerous
| + | |
| − | allegations against judges can become a terrifying trend if
| + | |
| − | not effectively discouraged. The ‘‘AJK’’ Supreme Judicial
| + | |
| − | Council also cited this allegation as one of the grounds for
| + | |
| − | removal of Justice Chaudhry, former Chief Justice of the
| + | |
| − | ‘‘AJK’’ Supreme Court, and concluded that blasphemy had
| + | |
| − | indeed been committed. Such allegations debase the
| + | |
| − | principles of fair play and the rule of law . the very
| + | |
| − | principle the lawyers professed they were promoting while
| + | |
| − | challenging the arbitrary appointment of the Chief Justice
| + | |
| − | Chaudhry. There can be no independence for the
| + | |
| − | judiciary if judges are not protected against sanctions for
| + | |
| − | expressing themselves through their judgments.
| + | |
| − | According to the 1985 UN Basic Principles on the
| + | |
| − | Independence of Judiciary, judges are guaranteed
| + | |
| − | freedom of expression and personal immunity for
| + | |
| − | improper acts or omissions in the exercise of their judicial
| + | |
| − | functions. Judges are, though, expected to conduct
| + | |
| − | themselves in such a manner as to preserve the dignity of
| + | |
| − | their office and the impartiality and independence of the
| + | |
| − | judiciary.
| + | |
| − | | + | |
| − | viii. The powers shared between the authorities in ‘‘AJK’’ and
| + | |
| − | the ‘‘AJK’’ Council, chaired by the Prime Minister of
| + | |
| − | Pakistan, should be rationalized on democratic principles,
| + | |
| − | not withstanding the peculiar status of ‘‘AJK’’. HRCP
| + | |
| − | accepts that the sensitive legal status of ‘‘AJK’’ and its
| + | |
| − | security concerns will pose a huge challenge in carrying
| + | |
| − | out reforms. These factors are important and could
| + | |
| − | remain central while carrying out reforms, but they should
| + | |
| − | not be used as a justification to undermine basic human
| + | |
| − | rights standards.
| + | |
| − | | + | |
| − | ix. ‘‘AJK’’ bar associations are encouraged to initiate the
| + | |
| − | process for legal and judicial reform. It can start by
| + | |
| − | making recommendations regarding the method of
| + | |
| − | appointment of judges to the superior courts. Bar
| + | |
| − | associations must build consensus within the legal
| + | |
| − | fraternity and propose options for non-arbitrary methods
| + | |
| − | of appointing judges to superior courts. Advocacy around
| + | |
| − | such shared proposals will yield better long-term results.
| + | |
| − | | + | |
| − | Annex I
| + | |
| − | | + | |
| − | === Judicial System of ‘Azad’ Jammu and Kashmir ===
| + | |
| − | | + | |
| − | * The Supreme Court is the highest court of appeal of ‘Azad’ Jammu and
| + | |
| − | Kashmir and has jurisdiction to hear and determine appeals from
| + | |
| − | judgements, decrees, final orders or sentences of the ‘‘AJK’’ High Court.
| + | |
| − | Unlike the Supreme Court of Pakistan, the ‘‘AJK’’ Supreme Court does not
| + | |
| − | have original jurisdiction. The number of judges in the ‘‘AJK’’ Supreme
| + | |
| − | Court has been fixed at three by the ‘‘AJK’’ Interim Constitution Act, 1974.
| + | |
| − | | + | |
| − | ** The ‘‘AJK’’ High Court has appellate as well as original (writ) jurisdiction,
| + | |
| − | just like the High Courts of Pakistan.
| + | |
| − | | + | |
| − | Supreme Court of ‘Azad’ Jammu and Kashmir*
| + | |
| − | High Court of ‘Azad’ Jammu and Kashmir**
| + | |
| − | | + | |
| − | Civil Courts
| + | |
| − | | + | |
| − | Criminal Courts
| + | |
| − | | + | |
| − | Revenue Courts
| + | |
| − | | + | |
| − | Special Courts
| + | |
| − | | + | |
| − | Service Tribunal
| + | |
| − | | + | |
| − | Annex II
| + | |
| − | | + | |
| − | === Appointments to Superior Courts of ‘Azad’Jammu and Kashmir ===
| + | |
| − | | + | |
| − | ‘‘AJK’’ Supreme Court14
| + | |
| − | | + | |
| − | The ‘‘AJK’’ Constitution has fixed the number of judges in the
| + | |
| − | Supreme Court at three, including the Chief Justice of ‘‘AJK’’.
| + | |
| − | The ‘‘AJK’’ Chief Justice shall be appointed by the President on
| + | |
| − | the advice of the ‘‘AJK’’ Council.
| + | |
| − | | + | |
| − | Each of the other judges of the ‘‘AJK’’ Supreme Court shall be
| + | |
| − | appointed by the President on the advice of the Council after
| + | |
| − | consultation with the ‘‘AJK’’ Chief Justice.
| + | |
| − | | + | |
| − | A judge of the ‘‘AJK’’ Supreme Court shall hold office until he
| + | |
| − | attains the age of 65 years, unless he resigns earlier or is
| + | |
| − | removed from office in accordance with law.
| + | |
| − | | + | |
| − | Ad-Hoc Judges15
| + | |
| − | | + | |
| − | If at any time it is not possible for want of quorum of judges of
| + | |
| − | the Supreme Court to hold or continue any sitting of the
| + | |
| − | Court, or for any other reason it is necessary to increase
| + | |
| − | temporarily the number of Judges of the Supreme Court, the
| + | |
| − | ‘‘AJK’’ Chief Justice may, in writing.
| + | |
| − | | + | |
| − | a) With the approval of the ‘‘AJK’’ President, request a
| + | |
| − | person who has held the office of a judge of that
| + | |
| − | court, the Supreme Court of Pakistan or the Judicial
| + | |
| − | Board or has held the office of Judge of the High
| + | |
| − | Court for a minimum period of three years and since
| + | |
| − | 14 Section 42, ‘Azad’ Jammu and Kashmir Interim Constitution Act, 1974.
| + | |
| − | 15 Section 42 (8-A) (c), ‘Azad’ Jammu and Kashmir Interim Constitution
| + | |
| − | Act, 1974.
| + | |
| − | | + | |
| − | whose ceasing to hold that office three years have not
| + | |
| − | elapsed; or
| + | |
| − | | + | |
| − | b) With the approval of the President and except in the
| + | |
| − | case of Chief Justice, with the consent of the Chief
| + | |
| − | Justice of High Court, require a judge of that court
| + | |
| − | who has held office as such judge for a minimum
| + | |
| − | period of three years; or
| + | |
| − | | + | |
| − | c) With the approval of the President, request any
| + | |
| − | person qualified for appointment as judge of the
| + | |
| − | Supreme Court, to attend sittings of the Supreme
| + | |
| − | Court as an ad-hoc judge for such period as may be
| + | |
| − | necessary and while so attending an ad-hoc judge
| + | |
| − | shall have the same power and jurisdiction as a judge
| + | |
| − | of the Supreme Court.
| + | |
| − | | + | |
| − | ‘‘AJK’’ High Court16
| + | |
| − | | + | |
| − | A judge of the High Court shall be appointed by the ‘‘AJK’’
| + | |
| − | President on the advice of the ‘‘AJK’’ Council and after
| + | |
| − | consultation:
| + | |
| − | | + | |
| − | (a) with the ‘‘AJK’’ Chief Justice; and
| + | |
| − | | + | |
| − | (b) except where the appointment is that of Chief Justice, with
| + | |
| − | the Chief Justice of the High Court.
| + | |
| − | | + | |
| − | The Chief Justice or a Judge of the High Court shall hold
| + | |
| − | office until he attains the age of 62 years unless he resigns
| + | |
| − | earlier or is removed from office in accordance with law.
| + | |
| − | | + | |
| − | 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 65 years.
| + | |
| − | Additional Judges
| + | |
| − | | + | |
| − | 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
| + | |
| − | 16 Section 43, ‘Azad’ Jammu and Kashmir Interim Constitution Act, 1974.
| + | |
| − | 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.
| + | |
| − | Acting Chief Justice17
| + | |
| − | | + | |
| − | At any time when:
| + | |
| − | | + | |
| − | a) the office of Chief Justice of High Court is vacant; or
| + | |
| − | | + | |
| − | b) 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.
| + | |
| − | | + | |
| − | 17 Section 43-A, ‘Azad’ Jammu and Kashmir Interim Constitution Act,
| + | |
| − | 1974.
| + | |
| − | | + | |
| − | Annex III
| + | |
| − | | + | |
| − | ‘‘AJK’’ Council . Role in Appointment and
| + | |
| − | Accountability of Judges
| + | |
| − | | + | |
| − | Composition18
| + | |
| − | | + | |
| − | === The ‘Azad’ Jammu and Kashmir Council consists of: ===
| + | |
| − | | + | |
| − | a. The Prime Minister of Pakistan,19 who is chairman of
| + | |
| − | the Council;
| + | |
| − | | + | |
| − | b. The President, who is vice-chairman of the Council;
| + | |
| − | | + | |
| − | c. Five Members to be nominated by the Prime Minister
| + | |
| − | of Pakistan from time to time from amongst Federal
| + | |
| − | Minister and members of Parliament;
| + | |
| − | | + | |
| − | d. The Prime Minister of ‘Azad’ Jammu and Kashmir or a
| + | |
| − | person nominated by him;
| + | |
| − | | + | |
| − | e. Six members to be elected by the Assembly from
| + | |
| − | amongst state subjects in accordance with the system
| + | |
| − | of proportional representation by means of the single
| + | |
| − | transferable vote;
| + | |
| − | | + | |
| − | f. Pakistan.s Federal Minister of State for Kashmir
| + | |
| − | Affairs and Northern Affairs (as ex-officio member of
| + | |
| − | the Council).
| + | |
| − | | + | |
| − | g. A member of the Council elected by the Assembly
| + | |
| − | 18 Section 21, ‘Azad’ Jammu and Kashmir Interim Constitution Act, 1974.
| + | |
| − | 19 According to Section 21 (14) of ‘‘AJK’’ Interim Constitution Act, 1974,
| + | |
| − | the words .The Prime Minister of Pakistan. wherever occurring in
| + | |
| − | Section 21 .shall be deemed to include the person for the time being
| + | |
| − | exercising the powers and performing the functions of the Chief
| + | |
| − | Executive of Pakistan..
| + | |
| − | | + | |
| − | holds office for a term of five years from the day he
| + | |
| − | enters upon his office, or until his successor enters
| + | |
| − | upon his office, whichever event is later.
| + | |
| − | | + | |
| − | h. The executive authority of the Council extend to all
| + | |
| − | matters with respect to which the Council has power
| + | |
| − | to make laws and is exercised, in the name of the
| + | |
| − | Council, by the Chairman who may act either directly
| + | |
| − | or through the Secretariat of the Council of which a
| + | |
| − | Federal Minister nominated by the Chairman from
| + | |
| − | amongst the members of the Council and not more
| + | |
| − | than three advisors appointed by the Chairman shall
| + | |
| − | be in-charge.
| + | |
| − | | + | |
| − | i. The Council may specify matters in respect of which
| + | |
| − | its authority shall be exercisable by the Vice-
| + | |
| − | Chairman of the Council, subject to such conditions
| + | |
| − | as the Council may specify.
| + | |
| − | | + | |
| − | j. The Council is authorised to make rules for regulating
| + | |
| − | its procedure and the conduct of its business, and
| + | |
| − | shall have power to act notwithstanding any vacancy
| + | |
| − | in the membership thereof, and any proceedings of
| + | |
| − | the council shall not be invalid on the ground that a
| + | |
| − | person who was not entitled to do so sat, voted or
| + | |
| − | otherwise took part in the proceedings.
| + | |
| − | | + | |
| − | Role in Appointment20 and Accountability21
| + | |
| − | of Judges
| + | |
| − | | + | |
| − | • The President is bound to appoint the ‘‘AJK’’ Chief
| + | |
| − | Justice on the advice of the Council.
| + | |
| − | | + | |
| − | • Each of the other judges of the ‘‘AJK’’ Supreme Court
| + | |
| − | shall be appointed by the President on the advice of
| + | |
| − | the Council after consultation with the ‘‘AJK’’ Chief
| + | |
| − | Justice.
| + | |
| − | | + | |
| − | If the chairman of the ‘‘AJK’’ Council or the President is of the
| + | |
| − | opinion that a judge of the Supreme Court or of the High
| + | |
| − | Court:
| + | |
| − | | + | |
| − | a) is incapable of properly performing the duties of his
| + | |
| − | office on account of physical or mental incapacity; or
| + | |
| − | | + | |
| − | b) may have been guilty of misconduct, the Chairman or
| + | |
| − | the President, as the case may be, shall direct the
| + | |
| − | Supreme Judicial Council to inquire into the matter.
| + | |
| − | If, after inquiring into the matter, the Supreme Judicial Council
| + | |
| − | reports to the Chairman of the ‘‘AJK’’ Council that it is of the
| + | |
| − | opinion:
| + | |
| − | | + | |
| − | a) that the judge is incapable of performing the duties of
| + | |
| − | his office or has been guilty of misconduct, and
| + | |
| − | | + | |
| − | b) that he should be removed from office, the Chairman
| + | |
| − | shall advise the President to remove the Judge from
| + | |
| − | his office and the President shall pass orders
| + | |
| − | accordingly.
| + | |
| − | | + | |
| − | 20 Sections 42 and 43, ‘Azad’ Jammu and Kashmir Interim Constitution
| + | |
| − | Act, 1974.
| + | |
| − | 21 Section 42-E, ‘Azad’ Jammu and Kashmir Interim Constitution Act,
| + | |
| − | 1974.
| + | |
| − | Legislative Authority22
| + | |
| − | Both the ‘Azad’ Jammu and Kashmir Council and the ‘‘AJK’’
| + | |
| − | Legislative Assembly have the power to make laws:
| + | |
| − | | + | |
| − | a. for the territories of ‘Azad’ Jammu and Kashmir;
| + | |
| − | | + | |
| − | b. for all state subjects wherever they may be; and
| + | |
| − | | + | |
| − | c. for all officers of the Council or as the case may be,
| + | |
| − | the Government, wherever they may be.
| + | |
| − | | + | |
| − | However, neither the Council nor the Assembly have the
| + | |
| − | power to make any law concerning.
| + | |
| − | | + | |
| − | a. the responsibilities of the Government of Pakistan
| + | |
| − | under the UNCIP Resolutions;
| + | |
| − | | + | |
| − | b. the defence and security of ‘Azad’ Jammu and
| + | |
| − | Kashmir;
| + | |
| − | | + | |
| − | c. the current coin or the issue of any bills, notes or
| + | |
| − | other paper currency; or
| + | |
| − | | + | |
| − | d. the external affairs of ‘Azad’ Jammu and Kashmir
| + | |
| − | including foreign trade and foreign aid.
| + | |
| − | | + | |
| − | e. Any law repugnant to the teachings and requirements
| + | |
| − | of Islam as set out in the Holy Quran and Sunnah.
| + | |
| − | Subject to the exceptions mentioned above:
| + | |
| − | | + | |
| − | a. the Council has exclusive power to make laws with
| + | |
| − | respect to any matter in the Council Legislative list set
| + | |
| − | out in the Third Schedule of the ‘‘AJK’’ Interim
| + | |
| − | | + | |
| − | Constitution Act, 1974.
| + | |
| − | | + | |
| − | b. the Assembly has, and the Council does not, have
| + | |
| − | power to make laws with respect to any matter not
| + | |
| − | enumerated in the Council Legislative list.
| + | |
| − | 22 Section 21, ‘Azad’ Jammu and Kashmir Interim Constitution Act, 1974.
| + | |
| − | | + | |
| − | Annex IV
| + | |
| − | | + | |
| − | Chronology of Events
| + | |
| − | | + | |
| − | May 5, 1991: Justice Manzoor Hussain Gillani appointed
| + | |
| − | judge of the ‘‘AJK’’ High Court.
| + | |
| − | May 4, 2001: Justice Gillani appointed Chief Justice of the
| + | |
| − | ‘‘AJK’’ High Court.
| + | |
| − | | + | |
| − | August 2004: Justice Gillani elevated to the ‘‘AJK’’ Supreme
| + | |
| − | Court.
| + | |
| − | | + | |
| − | Sep 26, 2006: Justice Riaz Akhtar Chaudhry, Chief Justice
| + | |
| − | of the ‘‘AJK’’ High Court ‘‘AJK’’ elevated to the
| + | |
| − | Supreme Court of ‘‘AJK’’.
| + | |
| − | | + | |
| − | Sep 28, 2006: Justice Sardar Muhammad Nawaz Khan
| + | |
| − | appointed Acting Chief Justice of the ‘‘AJK’’
| + | |
| − | High Court.
| + | |
| − | | + | |
| − | Oct 21, 2006: Justice Reaz Akhtar Chaudhry appointed
| + | |
| − | Chief Justice of the ‘‘AJK’’ Supreme Court, 25
| + | |
| − | days after his elevation to the Supreme
| + | |
| − | Court.
| + | |
| − | | + | |
| − | Nov 19, 2006: Chief Justice Chaudhry sets up a Monitoring
| + | |
| − | Cell at the ‘‘AJK’’ Supreme Court through an
| + | |
| − | executive order to .ensure that no injustice
| + | |
| − | should be done to any State Subject..
| + | |
| − | | + | |
| − | Jan 23, 2007: Justice Rafiullah Sultani and Justice
| + | |
| − | Mohammad Yunis Tahir appointed to the
| + | |
| − | ‘‘AJK’’ High Court.
| + | |
| − | | + | |
| − | Mar 21, 2007: Appointment of Justice Sultani and Justice
| + | |
| − | Tahir challenged before the ‘‘AJK’’ High Court
| + | |
| − | of ‘‘AJK’’ (in Shaukat Aziz and others Vs ‘Azad’
| + | |
| − | Government and others) on the ground that
| + | |
| − | their appointments were not made in
| + | |
| − | consultation with the ‘‘AJK’’ Chief Justice.
| + | |
| − | Mar 27, 2007: Appointment of ‘‘AJK’’ Chief Justice Reaz
| + | |
| − | Akhtar Chaudhry challenged before the ‘‘AJK’’
| + | |
| − | High Court (in Sardar Karam Dad Khan and
| + | |
| − | others Vs Chairman ‘Azad’ Jammu and
| + | |
| − | Kashmir Council and others).
| + | |
| − | | + | |
| − | Mar 27, 2007: The ‘‘AJK’’ Supreme Court initiates contempt
| + | |
| − | of court proceedings against the ‘‘AJK’’ High
| + | |
| − | Court Registrar for entertaining writ petitions
| + | |
| − | against the Chief Justice and judges of the
| + | |
| − | ‘‘AJK’’ Supreme Court.
| + | |
| − | | + | |
| − | Mar 28, 2007: The ‘‘AJK’’ Supreme Court orders that the
| + | |
| − | original file of the writ petition titled Sardar
| + | |
| − | Karam Dad Khan and others Vs. Chairman
| + | |
| − | ‘Azad’ Jammu and Kashmir Council and
| + | |
| − | others be .given in possession of the
| + | |
| − | Registrar of this Court, who shall keep the
| + | |
| − | same until further orders. Original file of writ
| + | |
| − | petition titled Shaukat Aziz and others Vs
| + | |
| − | ‘Azad’ Government and others also taken into
| + | |
| − | possession.
| + | |
| − | | + | |
| − | May 5, 2007: Chief Justice Chaudhry and Justice Khawaja
| + | |
| − | Shahad Ahmed of the ‘‘AJK’’ Supreme Court
| + | |
| − | deliver judgement in Mujahid Hussain Naqvi
| + | |
| − | Vs ‘Azad’ Government and others [PLJ 2007
| + | |
| − | SC (‘‘AJK’’) 163], a review petition barred by
| + | |
| − | the statute of limitation because it was filed
| + | |
| − | seven years after the period of limitation
| + | |
| − | ended. The judgement gave rise to
| + | |
| − | allegations of favouritism.
| + | |
| − | | + | |
| − | October 2007: Justice Gillani challenges before the
| + | |
| − | Supreme Court of Pakistan the legality of the
| + | |
| − | ‘‘AJK’’ Council Chairman.s advice to the ‘‘AJK’’
| + | |
| − | President regarding the appointment of
| + | |
| − | Justice Chaudhry as the ‘‘AJK’’ Chief Justice.
| + | |
| − | 17 lawyers also filed a petition in the
| + | |
| − | Supreme Court of Pakistan Tabassam Sadiq
| + | |
| − | and others versus Government of Pakistan
| + | |
| − | and others, alleging that CJ Chaudhry had
| + | |
| − | abused his office and harassed and
| + | |
| − | intimated lawyers and judges in cahoots with
| + | |
| − | the bureaucracy of the ‘‘AJK’’.
| + | |
| − | | + | |
| − | They also raise allegations regarding the manner of
| + | |
| − | appointment of Chief Justice Chaudhry to
| + | |
| − | head the ‘‘AJK’’ Supreme Court. Justice
| + | |
| − | Sardar Muhammad Nawaz Khan, acting
| + | |
| − | Chief Justice of the ‘‘AJK’’ High Court, also
| + | |
| − | filed a constitutional Petition in the Supreme
| + | |
| − | Court of Pakistan with the prayer that the
| + | |
| − | ‘‘AJK’’ Council Chairman (Prime Minister of
| + | |
| − | Pakistan) be directed to act upon the advice
| + | |
| − | of the predecessor of Chief Justice
| + | |
| − | Chaudhry and appoint Justice Khan as
| + | |
| − | permanent Chief Justice of the ‘‘AJK’’ High
| + | |
| − | Court.
| + | |
| − | | + | |
| − | Mar 15, 2010: A three-member bench of the ‘‘AJK’’ Supreme
| + | |
| − | Court consisting of Chief Justice Chaudhry,
| + | |
| − | Justice Khawaja Shahad Ahmad and Justice
| + | |
| − | Mohammad Azam Khan in Sardar
| + | |
| − | Mohammad Sayab Khalid and others Vs
| + | |
| − | Federation / Government of Pakistan and
| + | |
| − | others (Original Petition No 1 of 2010 issued
| + | |
| − | processes against the Kashmir Council
| + | |
| − | Chairman (Prime Minister of Pakistan) and
| + | |
| − | the President of ‘‘AJK’’, against the provisions
| + | |
| − | of the ‘Azad’ Jammu and Kashmir Interim
| + | |
| − | Constitution Act, 1974.
| + | |
| − | | + | |
| − | Apr 3, 2010: ‘‘AJK’’ Prime Minister Farooq Haider sends a
| + | |
| − | reference against Chief Justice Chaudhry to
| + | |
| − | the Acting President of ‘‘AJK’’.
| + | |
| − | | + | |
| − | Apr 3, 2010: The Acting ‘‘AJK’’ President forwards the
| + | |
| − | reference (reference No 1 of 2010) to Senior
| + | |
| − | Judge of the ‘‘AJK’’ Supreme Court under
| + | |
| − | Section 42-E of the ‘Azad’ Jammu and
| + | |
| − | Kashmir Interim Constitution Act, 1974, to
| + | |
| − | inquire into the conduct of Chief Justice
| + | |
| − | Chaudhry.
| + | |
| − | | + | |
| − | Apr 3, 2010: The Acting President removes Justice Azam
| + | |
| − | Khan, an ad-hoc judge of the ‘‘AJK’’ Supreme
| + | |
| − | Court.
| + | |
| − | | + | |
| − | Apr 3, 2010: On the advice of the ‘‘AJK’’ Prime Minister, the
| + | |
| − | Acting President appoints then ‘‘AJK’’
| + | |
| − | Advocate General Muhammad Ibrahim Zia
| + | |
| − | as ad-hoc judge of the ‘‘AJK’’ Supreme Court.
| + | |
| − | | + | |
| − | Apr 3, 2010: The Supreme Judicial Council, comprising
| + | |
| − | Justice Gillani, Acting Chief Justice of the
| + | |
| − | ‘‘AJK’’ Supreme Court, Justice Ibrahim Zia, adhoc
| + | |
| − | judge of the ‘‘AJK’’ Supreme Court, and
| + | |
| − | Justice Ghulam Mustafa Mughal, Chief
| + | |
| − | Justice of the ‘‘AJK’’ High Court, issue notices
| + | |
| − | to Chief Justice Chaudhry (respondent) for
| + | |
| − | April 7.
| + | |
| − | | + | |
| − | Apr 3, 2010: On an application accompanying the
| + | |
| − | reference, the Supreme Judicial Council
| + | |
| − | restrains Chief Justice Chaudhry from
| + | |
| − | performing his duties as the ‘‘AJK’’ Chief
| + | |
| − | Justice.
| + | |
| − | | + | |
| − | Apr 3, 2010: The ‘‘AJK’’ President, who was on a foreign
| + | |
| − | visit, returns to Muzaffarabad, the capital of
| + | |
| − | ‘‘AJK’’.
| + | |
| − | | + | |
| − | Apr 4, 2010: The ‘‘AJK’’ President: withdraws the reference
| + | |
| − | against Chief Justice Chaudhry; orders
| + | |
| − | Justice Chaudhry.s reinstatement as the
| + | |
| − | ‘‘AJK’’ Chief Justice; sends a reference for
| + | |
| − | misconduct against Justice Gillani, Justice
| + | |
| − | Zia and Justice Mughal to Chief Justice
| + | |
| − | Chaudhry.
| + | |
| − | | + | |
| − | Apr 4, 2010: The ‘‘AJK’’ President constitutes another
| + | |
| − | Supreme Judicial Council, consisting of
| + | |
| − | Chief Justice Chaudhry, Justice Shahad of
| + | |
| − | the ‘‘AJK’’ High Court and Justice Yunis Tahir
| + | |
| − | of the ‘‘AJK’’ High Court.
| + | |
| − | | + | |
| − | Apr 4, 2010: The Supreme Judicial Council (headed by
| + | |
| − | Justice Chaudhry) convenes in Mirpur and
| + | |
| − | issues notices to Justice Gillani, Justice Zia
| + | |
| − | and Justice Mughal for April 22.
| + | |
| − | | + | |
| − | Apr 7, 2010: The Supreme Judicial Council (headed by
| + | |
| − | Justice Gillani) convenes in Court Room No
| + | |
| − | 1 of the ‘‘AJK’’ Supreme Court, where the
| + | |
| − | media is given unprecedented access.
| + | |
| − | Justice Chaudhry does not join the
| + | |
| − | proceedings and is proceeded against exparte.
| + | |
| − | | + | |
| − | Apr 8-11, 2010: The Supreme Judicial Council (headed by
| + | |
| − | Justice Gillani) records evidence and hears
| + | |
| − | arguments in the reference in four days of
| + | |
| − | open court hearings.
| + | |
| − | | + | |
| − | Apr 12, 2010: The Supreme Judicial Council (headed by
| + | |
| − | Justice Gillani) completes its proceedings
| + | |
| − | and sends its findings and recommendations
| + | |
| − | to the ‘Azad’ Jammu and Kashmir Council
| + | |
| − | Chairman.
| + | |
| − | | + | |
| − | Apr 22, 2010: The Supreme Judicial Council (headed by
| + | |
| − | Justice Chaudhry) allegedly convenes at a
| + | |
| − | rest house in Mirpur and proceeds against
| + | |
| − | the respondent judges on an ex-parte basis,
| + | |
| − | records no evidence and compiles its
| + | |
| − | findings and recommendations and sends
| + | |
| − | them to the ‘‘AJK’’ Council Chairman.
| + | |
| − | | + | |
| − | Apr 30, 2010: The ‘‘AJK’’ High Court cancels the
| + | |
| − | appointment of Justice Rafiullah Sultani and
| + | |
| − | Justice Mohammad Yunis Tahir (challenged
| + | |
| − | in Shaukat Aziz and others Vs ‘Azad’
| + | |
| − | Government and others).
| + | |
| − | | + | |
| − | May 2010: Justice Reaz Akhtar Chaudhry, Chief Justice
| + | |
| − | of the ‘‘AJK’’ Supreme Court, and Justice
| + | |
| − | Manzoor Hussain Gillani, the senior most
| + | |
| − | judge of the ‘‘AJK’’ Supreme Court, both
| + | |
| − | resign as judges.
| + | |
| − | | + | |
| − | Annex V
| + | |
| − | | + | |
| − | List of People Interviewed
| + | |
| − | | + | |
| − | Lawyers23
| + | |
| − | | + | |
| − | 1. Syed Shahid Bahar, President, Muzaffarabad Bar
| + | |
| − | Association.
| + | |
| − | | + | |
| − | 2. Zafar Mehmood Advocate
| + | |
| − | | + | |
| − | 3. Sardar Karam Dad Khan Advocate
| + | |
| − | | + | |
| − | 4. Raja Ibrar Hussain Advocate, former Advocate
| + | |
| − | General of ‘‘AJK’’.
| + | |
| − | | + | |
| − | 5. Raza Ali Khan Advocate, Secretary General Supreme
| + | |
| − | Court Bar Association ‘‘AJK’’ and Member ‘‘AJK’’ Bar
| + | |
| − | Council.
| + | |
| − | | + | |
| − | 6. Chaudhry Mohammad Mumtaz Advocate, President
| + | |
| − | Supreme Court Bar Association ‘‘AJK’’.
| + | |
| − | | + | |
| − | 7. Arshad Gillani Advocate, Member ‘‘AJK’’ Bar Council.
| + | |
| − | | + | |
| − | 8. Sher Zaman Advocate, Member ‘‘AJK’’ Bar Council.
| + | |
| − | | + | |
| − | 9. Chaudhry Shaukat Aziz Advocate.
| + | |
| − | | + | |
| − | 10. Abdur Rasheed Abbassi Advocate, Minister for Law,
| + | |
| − | Government of ‘Azad’ Jammu and Kashmir.
| + | |
| − | | + | |
| − | 11. Raja Haneef Advocate.
| + | |
| − | | + | |
| − | 12. Tabbassum Aftab Alvi Advocate
| + | |
| − | | + | |
| − | 13. Shamshad Hussain Khan Advocate, Member ‘‘AJK’’ Bar
| + | |
| − | Council.
| + | |
| − | | + | |
| − | 14. Raja Fazal Hussain Rabbani, Additional Advocate
| + | |
| − | General, ‘‘AJK’’.
| + | |
| − | | + | |
| − | 15. Riaz Ahmad, Additional Registrar, ‘‘AJK’’ Supreme
| + | |
| − | Court.
| + | |
| − | | + | |
| − | 16. Chaudhry Mohammad Mumtaz Advocate, Vice-Chair,
| + | |
| − | ‘‘AJK’’ Bar Council.
| + | |
| − | | + | |
| − | 23 Several lawyers that the HRCP mission talked to in Islamabad did not
| + | |
| − | want their names disclosed.
| + | |
| − | | + | |
| − | The HRCP team also met Justice Reaz Akhtar Chaudhry,
| + | |
| − | Chief Justice of the ‘‘AJK’’ Supreme Court, at his residence in
| + | |
| − | Mirpur, ‘Azad’ Jammu and Kashmir.
| + | |
| − | | + | |
| − | === Journalists ===
| + | |
| − | | + | |
| − | 1. Ibrar Haider, Editor daily Mashriq, Muzaffarabad and
| + | |
| − | Coordinator South Asia Free Media Association, ‘Azad’
| + | |
| − | Kashmir
| + | |
| − | | + | |
| − | 2. Raja Iftikhar Ahmad, Bureau Chief, daily Jang,
| + | |
| − | Muzaffarabad.
| + | |
| − | | + | |
| − | 3. Shujaat Raja, correspondent for Al-Jazeera TV.
| + | |
| − | | + | |
| − | 4. Asif Raza Mir, Aaj TV.
| + | |
| − | Political leaders
| + | |
| − | | + | |
| − | 1. Sardar Ateequr Rehman, President Muslim
| + | |
| − | Conference, former Prime Minister of ‘‘AJK’’.
| + | |
| − | | + | |
| − | 2. Chaudry Majeed, President of Pakistan People.s
| + | |
| − | Party. ‘‘AJK’’. (On telephone)
| + | |
| − | | + | |
| − | 3. Zahid Ameen, former Vice-President of (National)
| + | |
| − | Muslim Conference.
| + | |
| − | | + | |
| − | 4. Anwarul Haq, Chairman Public Accounts Committee,
| + | |
| − | Peoples Muslim League. (On telephone)
| + | |
| − | | + | |
| − | 5. Hafeez Awan, Member Legislative Assembly,
| + | |
| − | Pakistan People.s Party. (On telephone)
| + | |
| − | | + | |
| − | 6. Sardar Khalid Ibrahim Khan, President, Jammu
| + | |
| − | Kashmir People.s Party.
| + | |
| − | Justice Reaz Akhtar Chaudhry and
| + | |
| − | Justice Manzoor Hussain Gillani .
| + | |
| − | who were, until early May 2010, Chief
| + | |
| − | Justice and senior-most judge of the
| + | |
| − | ‘Azad’ Jammu and Kashmir Supreme
| + | |
| − | Court, respectively . are no longer
| + | |
| − | part of the ‘‘AJK’’ superior judiciary.
| + | |
| − | Both have resigned after prolonged
| + | |
| − | wrangling in the ‘‘AJK’’ superior courts
| + | |
| − | and the State establishment.
| + | |
| − | | + | |
| − | But interference in the appointment of
| + | |
| − | judges in ‘‘AJK’’ has not ended. Lawyers
| + | |
| − | in ‘‘AJK’’ have ended their protests but
| + | |
| − | surely the issue was not about the
| + | |
| − | appointment of one individual but
| + | |
| − | graver issues are at stake in ‘‘AJK’’. The
| + | |
| − | Human Rights Commission of
| + | |
| − | Pakistan can only hope that
| + | |
| − | institutional changes rather than the
| + | |
| − | change of a few faces will be adopted
| + | |
| − | as a policy in ‘‘AJK’’ and by the
| + | |
| − | Government of Pakistan.
| + | |
| − | | + | |
| − | Human Rights Commission of Pakistan
| + | |
| − | Aiwan-i-Jamhoor, 107-Tipu Block, New Garden Town, Lahore-54600
| + | |
| − | Tel: (92-42) 5838341, 35865969, 35864994
| + | |
| − | Fax: (92-42) 35883582
| + | |
| − | E-mail: hrcp@hrcp-web.org
| + | |
| − | URL: www.hrcp-web.org
| + | |
| − | | + | |
| − | | + | |
| − | This is a newspaper article selected for the excellence of its content.<br/>You can help by converting it into an encyclopedia-style entry,<br />deleting portions of the kind normally not used in encyclopaedia entries.<br/>Please also put categories, paragraph indents, headings and sub-headings,<br/>and combine this with other articles on exactly the same subject.<br/>
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| − | [[Category:Law,Constitution,Judiciary|A]]
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| − | [[Category:India|A]]
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