November 2006 News

CJ’s appointment stirs anger in AJK judiciary

1 November 2006
The Dawn

Islamabad: The superior judiciary of Azad Jammu and Kashmir seems to have received a blow from the executive with the appointment of a new chief justice superseding the senior-most hopeful, in a move which revives memories of a judicial storm in Pakistan in 1990s. The appointment has sent shockwaves in the territory’s legal community as accusing fingers are being pointed at the newly elected state government and Islamabad for what has no precedent in the territory’s judicial history. Legal sources in Azad Kashmir compare the situation to the 1994 elevation of Justice Sajjad Ali Shah as chief justice of Pakistan by superseding three judges, to be removed by other judges of the Supreme Court three years later in a crisis that shook the country’s judiciary. Justice Riaz Akhtar Chaudhry took over as Azad Kashmir Chief Justice on Friday, less than a month after his elevation to the Supreme Court from post of the High Court chief justice. He was appointed by the state president on the mandatory advice of Pakistan Prime Minister Shaukat Aziz as chairman of the Azad Jammu and Kashmir Council, the state upper house, to replace retiring Justice Khawaja Mohammad Saeed, but superseding the senior-most member of the three-judge court, Justice Syed Manzoor Hussain Gillani. Justice Gillani confirmed told Dawn he had taken six months’ leave in protest against what is the first supersession for this office since the Azad Kashmir Supreme Court was established in 1975 through the territory’s interim constitution. “Since my junior has been appointed as the chief justice, I can’t serve under him,” Justice Gillani said, quoting what he said he had written in his leave application. The judge, who migrated from held Kashmir in 1976 and has five years to retire — compared to 10 years of the colleague who has overtaken him, said he would use his leave period to ponder about his future, but ruled out posing a legal challenge. But legal sources said a challenge could come from the bar or any other source as, according to them, constitutional provisions for the appointment of a chief justice are similar in Azad Kashmir and Pakistan, where 10 judges of the Supreme Court annulled the appointment of Justice Shah in 1997, paving the way for the senior- most Justice Ajmal Mian to take the office amid a turmoil that forced the then president Farooq Leghari to resign. Azad Kashmir Supreme Court Bar Association president Chaudhry Mohammad Azam said he was planning to call a meeting of the body soon in Islamabad to consider its line of action. He said the state’s top judicial appointment had broken the tradition of giving the office to the senior-most judge of the court as was done in Pakistan, but he would not speculate about the possible stance his association could take. Azad Kashmir constitution says the chief justice “shall be appointed by the president on the advice of the council and each of the other judges of the Supreme Court … after consultation with the said chief justice”. But if the office of the chief justice becomes vacant or the incumbent is absent or unable to perform functions of the office, it says “the president shall appoint the senior-most of the other judges of the Supreme Court as chief justice”. Legal sources said the council’s advice for the appointment of a chief justice ‘is formulated not by a vote of the elected and nominated members of the body but through input from several sources, including the state government and security agencies, and possible political considerations in a territory where tribal and clan considerations often play a dominant role.’ It is not only the question of seniority that is being talked about in Azad Kashmir’s legal and political circles but also the additional position of the new chief justice as the state’s acting chief election commissioner, who supervised last July’s elections that the opposition parties alleged were rigged, a charge the government denies. The chief justice has a key role in the appointment of other judges of the Supreme Court and of the territory’s only high court, whose chief justice then appoints the lower judiciary. Justice Gillani, as a high court judge, had surprised the then government of the present ruling party in 1990s by ordering 480 direct appointees to government jobs in grades 16-20 to get approval from the Public Service Commission or quit, a ruling upheld by the Supreme Court. While most of the criticism has been in murmurs, the strongest words came from the state chapter of the Jamaat-i-Islami, whose chief Ejaz Afzal accused the military-led government in Pakistan of denying justice to a Supreme Court judge after installing what he called a “puppet government” in the territory on the pattern of the Indian-held Kashmir. “When this government has usurped the right of and denied justice to a judge who can pass a death sentence on people against which there can be no appeal except to Allah, from where a poor man will get justice?” he asked. Mr Afzal said if there was anything wrong with Justice Gillani, the supreme judicial council should have been asked to take notice instead of superseding him.

 

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