(Mr. Ershad Mahmud was born in Rawalakot, Azad Kashmir. He is a freelance journalist and researcher based in Islamabad, Pakistan.)
Judicial Crisis in Azad Kashmir
The removal of Azad Kashmir Supreme Court Chief Justice Riaz Akhatar Chaudhary led to a huge political crisis in the Muzaffarabad. The president of AJK Raja Zulquarnain Khan has reversed the decision and reinstated him while Prime Minister Raja Farooq Haider Khan stated that president has no legal authority to undo his decision since AJK president is merely a constitutional head. Other key members of ruling Muslim Conference including Sardar Attique Ahamd Khan also opposed the decision and stood by deposed CJ Riaz Chaudhary. It is expected that ongoing political crisis will be further deepened in days ahead can lead to no-confidence move or dissolution of the assembly.
Needless to say that constitution of AJK article 7 states that President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him. In clear violation of constitution President of AJK reinstated dysfunctional CJ which resulted in establishment of two Supreme Courts based in Muzaffarabad and Mirpur respectively. Interestingly, People Party’s central leadership including Prime Minister Yousaf Raza Gilani urged AJK government to relieve Justice Riaz Chaudhary while its AJK branch and Ministry of Kashmir Affairs opposed the decision.
Last week in a dramatic move the Azad Jammu and Kashmir government relieved Chief Justice of the Supreme Court Riaz Akhtar Chaudhary of his duties after filing a reference of misconduct against him in the Supreme Judicial Council in Muzaffarabad. Justice Riaz Akhtar’s appointment as Chief Justice in October 2006, had been challenged by the senior most judge of SC Justice Manzoor-ul-Hasan Gilani in the Supreme Court of Pakistan on the principle of seniority. The clause 42 (8) of the AJK constitution act 1974 clearly states that Chief Justice shall be appointed on basis of seniority.
Justice Gilani has contended before the apex court that Justice Riaz Akhtar was a junior judge and thus not eligible for the CJ position. Similar petition challenging Justice Riaz’s appointment was also filed by a local lawyer in the AJK High Court which was virtually quashed on the orders of Riaz Akhtar from the High Court office. He also passed orders that no case could be filed in the High Court against SC judges which was also contradictory to the law of land.
Riaz Chaudhary’s countdown started when a three-member bench of the Supreme Court of
Pakistan had recently started hearing the Manzoor Gilani’s petition. It is expected that Justice Gilani would win the case due to solid constitutional footing of his argument. It however would be an embarrassment for Islamabad as the government of Pakistan has always said that AJK is separate and autonomous status. Initially, the federal law ministry stated that Supreme Court has no jurisdiction over AJK but subsequently it withdrew from its stand.
In the meantime, the Attorney General of Pakistan requested SC to let the government settle this case out of court. It was widely perceived that if SC of Pakistan intervenes in the internal affair of Azad Kashmir it might further erode the so-called independence of the region. Besides, it may send a negative message across the Line of Control that Pakistan is gradually integrating AJK with Pakistan after granting Gilgit-Baltistan a quasi-provincial status. The incumbent Prime Minister of AJK Raja Farooq Haider Khan has consistently been arguing for further self-rule of AJK ever since he assumed office in Muzaffarabad last October. It was a tough call for his political vision to expand the local self-rule. He did lobby hard to avoid volte face in case of SC of Pakistan verdict and argued to find mutually acceptable way out to save the local autonomous rule but justice Riaz refused to go on leave or resign.
Therefore, a 13-page long reference was sent to AJK Supreme Judicial Council to examine the Chaudhary’s misconduct. Several instances of misconduct were cited in the document. Some of them are very interesting and also indicate as to how Riaz Akhtar misused his office during the last three years. Reference says that he had formed an unconstitutional monitoring cell in the AJK SC to summon government officials and issue executive orders to advance his personal gains. Unlike SC of Pakistan, the AJK SC is only an appellate court and has no jurisdiction to entertain writ petition. Notwithstanding, Justice Riaz has not only entertained the writ petition but also extended it by issuing order to Prime Minister of Pakistan to not entertain the orders of the SC of Pakistan to replace him, if SC decides so. His orders pitched AJK government against SC of Pakistan and Prime Minster office in Islamabad.
It is very unfortunate that Azad Kashmir judiciary which was known for honest and competent judges has become now a laughing stalk in public. During 1990’s the same judiciary had made some historic and bold decisions on violation of human rights and basic principles of the constitution by the government. In 1992, the Muslim Conference government led by then Prime Minster Sardar Abdual Qayyum Khan had recruited some 200 officers in grade 17, 18 and 19, in a single week, bypassing the Public Service Commission set procedures. It was reported that a candidate who had failed to qualify for the post of a Naib Tehsildar (grade 14), was given office of 18 scale without appearing in any test or interview. It invited huge criticism from the civil society and finally the High Court nullified the backdoor appointments.
Contrary to the prestige of his position as CJ, Chaudhary indulged in cheap publicity. He rarely missed the front page of vernacular press. Every now and then he would be the chief guest inaugurating different projects. His critics maintain that he was running SC office like a political chair.
As a matter of fact the Azad Kashmir government never ever confronted this kind of judicial crisis in its recent history. It should learn some lessons and should avoid such crisis in future by inducting judges on merit in transparent and fair way. The Prime Minster of Azad Kashmir took the right step to undo the injustice and clean the judiciary from Musharraf’s cronies. He needs to take some more steps particularly to correct the constitutional anomalies to create a balanced and workable relationship between Islamabad and Muzaffarabad.