AJK Judicial crises - real story

Dr Shabir Choudhry    09 April 2010

Chief Justice Choudhry Riaz Akhtar may not be the right person to be Chief Justice of Pakistani Administered Kashmir; he may be corrupt too, but is he the only public office holder who is corrupt in AJK and in Pakistan. If he is corrupt and inappropriate person for this post then responsibility lies with those who appointed him.

The present Muslim Conference government is after blood of Chief Justice Choudhry Riaz Akhtar, yet it was the Muslim Conference government which appointed him the Chief Justice even though he was junior to Justice Manzoor Gilani.

He was acceptable to them at that time because he, as an Election Commissioner, helped them to win elections in 2006. The Muslim Conference government of the time thought it appropriate to reward him by giving him the top post in the AJK judiciary.

If he was dishonest the ruling party knew that; and many think it was because of this ‘qualification’ he was made an Election Commissioner. The seniority issue also did not concern the Muslim Conference governments as Chief Justice Riaz Akhtar enjoyed his position until he was ‘unconstitutionally’ removed two weeks ago. So what has gone so wrong that the Muslim Conference government is out with knives to hunt Chief Justice Riaz Akhtar?

The Prime Minister of AJK was so angry that on one live TV show he accused Chief Justice Riaz Akhtar of ‘sedition’. The anchor of the programme asked him again on this serious allegation, and again he repeated his allegation and said without being emotional on the issue he thought Chief Justice Riaz Akhtar has committed ‘treachery’.

What treachery did the Chief Justice Choudhry Riaz Akhtar commit? Did he have some secret contacts with India or did he sell some state secrets to enemy country? Answer to the above is he has not done that.

Justice Gilani was not happy that his junior had superseded him and protested against this injustice, but afterwards accepted the de facto change and worked under the new Chief Justice, and the matter was conceived as settled. Then all of sudden Justice Manwar Gilani after more than 3 years decided to take the matter to the Supreme Court of Pakistan. Question here is what role, if any, the Supreme Court of Pakistan has in matters of Azad Kashmir, which is not part of Pakistan?

Legally and constitutionally Azad Kashmir is not part of Pakistan. Azad Kashmir has its own administrative structure with its own President, its own Prime Minister, its own flag, its own national anthem and its own Supreme Court.  And ‘treachery’ of the Chief Justice is to state that fact loudly, which was not liked by those who control this territory as their colony.

On issue of Justice Manawar Gilani’s appeal to the Supreme Court, Chief Justice Riaz Akhtar questioned the role of the Supreme Court of Pakistan and said they have no right to take a decision related to ‘another country’, which technically Azad Kashmir is.

I am not suggesting that the Chief Justice Riaz Akhtar has become a ‘Kashmiri nationalist’, because anyone with little bit of Kashmiri nationalism would not be allowed to rise up to this status or walk in to corridors of power. However his remarks have upset the Pakistani establishment; and they are the ones who calls shots in the politics of Azad Kashmir.

It is now becoming increasingly clear that a conspiracy was hatched by agencies and the Prime Minister of Azad Kashmir was forced to become their tool to ‘illegally dismiss’ the Chief Justice of Azad Kashmir. With regard to dismissal of judges, the constitution of Azad Kashmir says:

‘A Judge of Supreme Court or of the High Court shall not be removed from office except as provided by this section’. Section 42 E.3

Section 4: If on information received from the Supreme Judicial Council or from any other source, 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) may be incapable of properly performing the duties of his office by reason 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 in to this matter.’

No one disputes the fact that a Chief Justice or any other Judge could be removed from his office on charges of misconduct or mental incapacity, but for that, proper procedures have to be followed. Perhaps the establishment of Pakistan and government of Azad Kashmir did not trust the President of Azad Kashmir Raja Zulqarnain; and they wanted to strike when he was on a visit to the United Kingdom.

In his absence, the Speaker of the Assembly becomes an Acting President and could exercise the same powers. Now the flaws in the conspiracy drama become too visible. The Prime Minister of Azad Kashmir went to see the Acting President at 11.40 and spoke to him about charges against the incumbent Chief Justice; and at 11.44 the Acting President forwarded the case to the Supreme Judicial Council with 12 pages charge sheet.

This timing is not denied by the Prime Minister of Azad Kashmir in his TV appearance. No human being can listen to the charges of misconduct against the incumbent Chief Justice and prepare a charge sheet in 4 minutes. It is clear that the case was already prepared and they wanted to strike before the President returns to Azad Kashmir.

The law says if the Supreme Judicial Council after investigation is of the opinion that the judge ‘should be removed from the office’ then the ‘Chairman (of Supreme Judicial Council) shall advice the President to remove the judge from his office and the President shall pass orders accordingly’.

However the Supreme Judicial Council should consist of the incumbent Chief Justice, who becomes Chairman of this institution, Chief Justice of High Court and the senior judge of the Supreme Court. The Supreme Judicial Council must not consist of those judges who have serious conflict of interest. After illegal dismissal of the Chief Justice Riaz Akhtar, the present Supreme Judicial Council consist of his rival Justice Gilani and his appointed ad hoc Judge and another Judge.

So one can see there is a clear conflict of interest in this case, and it is complete mockery of the judicial system in Azad Kashmir. However, if the Chief Justice Riaz Akhtar is due to retire in June 2010, then question arises what was the purpose of this drama? If his alleged ‘corruption’ and other ‘misconduct’ was tolerated for so many years then why disgrace him this way now.

Is it that his remarks regarding the role of the Supreme Court of Pakistan have annoyed powerful people? Or are the regional and tribal rivalries back in action? Both the President and the Prime Minister belong to the same clan – Rajpoot but they belong to different regions. The Prime Minister comes from Muzaffarabad and the President from Bhimber.

Hitherto Muzaffarabad had lions share of power in AJK, and Bhimber had less influence in politics of the AJK. However Raja Zulqarnain himself is very decent person and very influential; and he is not the kind of person who will back out on matters of principle. Despite that I urge restraint and request them to reach some compromise because open involvement of Pakistan will make matters worse.

Moreover Justice Gilani should withdraw his case from the Pakistani Supreme Court, as this would gradually erode away whatever little independence we have in Azad Kashmir.

Writer is Director Diplomatic Committee of Kashmir National Party, political analyst and author of many books and booklets. Also he is Director Institute of Kashmir Affairs.Email:drshabirchoudhry@gmail.com

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Dr Shabir Choudhry
"In a time of universal deceit, telling the truth is a revolutionary act." -- George Orwell.