Supreme Court of Azad Jammu & Kashmir

ISLAMABAD: The Supreme Court of Azad Jummu and Kashmir has put constitutional experts in a state of shock when it came at loggerheads with the Supreme Court of Pakistan over the unconstitutional appointment of the AJK chief justice.

The incumbent Chief Justice of AJK, Riaz Akhtar Chaudhry, while heading a three-member bench on March 15, 2010, passed an order barring Prime Minister of Pakistan to pass any notification regarding Chief Justice of AJK. He also restrained Law, Justice and Parliamentary Affairs Department from issuing any fresh notification and the President of the AJK from administering oath to any judge for the office of the AJK CJ.

It is worth mentioning here that the AJK CJ was hearing a case which directly involved him. The Article-IV of the Code of Conduct for Judges says, “A judge must decline resolutely to act in a case involving his own interests, including those of persons whom he regards and treats as near relatives or close friends.”

Such a move was done by the AJK CJ when the Chief Justice of Pakistan Iftikhar Muhammad Chaudhry, while hearing a petition challenging the AJK CJ’s appointment, passed remarks about the strange appointment of Justice Riaz Akhtar Chaudhry as the AJK CJ, who was made chief justice within 25 days of his elevation to the AJK Supreme Court. The order passed by him declares Kashmir as a separate country and says that the Supreme Court of Pakistan has no jurisdiction in the AJK affairs.

The order states: “The Supreme Court of Pakistan has no jurisdiction to entertain any petition regarding appointment of judges of superior courts of AJK. Such kind of petition does not come within the jurisdiction and sphere of Supreme Court of Pakistan.

“The Supreme Court of Pakistan has no authority to extend its jurisdiction to the area of Azad Jummu and Kashmir because the territories of Pakistan have been defined in Article 1 of the Constitution of Islamic Republic of Pakistan. The Supreme Court of Pakistan cannot go beyond the territories defined in Article 1 of the Constitution of Islamic Republic of Pakistan”.

“If the petition is admitted by the Supreme Court of Pakistan at this stage or some direction is issued, then Kashmir cause will be pushed into such a quagmire the result of which will be total debacle and ravage of the stand on Kashmir issue.”

Constitutional experts say that the AJK SC is an appellate forum and cannot entertain any writ petition and such an order of the AJK CJ is misconduct. Senior advocate Supreme Court of Pakistan Barrister Akram Sheikh, while talking to our correspondent, said the status of AJK is like a province and no court of a province could infringe in the jurisdiction of Supreme Court of Pakistan. He said that AJK SC could not pass any such order and this order was also discussed in the Supreme Court of Pakistan where the CJP said that the Supreme Court of Pakistan knew well about its jurisdiction and would not compromise on it.

A senior constitutional office holder of the AJK, while talking to this correspondent, said that this order of AJK SC was tantamount to high treason. He said that it was a nullity in the eyes of law like Iqbal Tikka case of Pakistan Supreme Court and should be ignored. He said that the case was regarding appointment of the AJK CJ and the CJ himself was heading the bench with an ad hoc judge. He mentioned that the ad hoc judge Muhammad Azam Khan’s appointment was at the pleasure of the CJ as long as he required him.

Justice Riaz Akhtar Chaudhry was first appointed as judge of the Supreme Court of the AJK on Sept 24, 2006 and then as its Chief Justice within 25 days of his appointment as judge Supreme Court by superseding the senior-most judge of the Supreme Court Justice Manzoor Hussain Gillani on 20 Oct 2006, who was senior to him by six years in judicial service, by more than two years in the Supreme Court and Justice Riaz also remained a junior judge with Justice Gillani in the high court when Justice Gillani was Chief Justice High Court for about four years. Justice Gillani has knocked the doors of the Supreme Court of Pakistan to seek justice.

Interestingly, a summary bearing number Law-3/3/2002-AJKC (Pt), dated 25-6-2008 was sent to the prime minister of Pakistan through Secretary Law, Justice and Human Rights by the AJ&K Council’s Secretariat to remove the incumbent CJ of the AJK, SC Justice Riaz Akhtar Chaudhary, and to appoint the senior-most judge Justice Manzoor Hussain Gillani as Chief Justice but the then law minister of Pakistan linked it to the status of Chief Justice Iftikhar Muhammad Chaudhry, who was deposed then.