- The AJK judiciary is in turmoil
By Zaki Rahman
The issue of independence of the judiciary is at the forefront once again. The Supreme Court of Pakistan is currently seized of a petition filed by Mr Justice Qazi Faez Isa in which the learned judge has challenged the President’s filing a reference against him before the Supreme Judicial Council.
Another situation where judicial independence is at stake is in Azad Jammu and Kashmir (AJK). The imbroglio pertains to the removal of a sitting Chief Justice of the AJK High Court, Mr Tabassum Aftab Alvi, both as Chief Justice as well as judge.
It all began in February 2011 when Mr Alvi, a widely respected advocate in AJK, was elevated to the AJK High Court. According to the 1974 AJK Interim Constitution, an AJK High Court judge was to be appointed by the AJK President on the advice of the AJK Council, a constitutional advisory body headed by the Prime Minister of Pakistan, after consultation with the Chief Justices of the AJK Supreme Court and High Court.
In February 2011, then Prime Minister Yousaf Raza Gillani, in his capacity as AJK Council Chairman, advised the AJK President to appoint Mr Alvi and one other person as AJKHC judges. Mr Alvi initially refused to take oath as judge as the then Chief Justice of the AJK High Court had not been consulted. On the same day, the then AJK President wrote to the then AJKHC Chief Justice who replied that “Mr M Tabassum Aftab Alvi Advocate qualifies for appointment for appointment as a judge of the High Court and that there is nothing against him in the official record.” Constitutional consultation having been completed, Mr Alvi took oath.
Fast forward to 2015 when the PPP Government appointed certain judges to the AJK Shariat Court through a Presidential ordinance in violation of legal provisions. The appointments were challenged in the AJK High Court before Mr Justice Alvi (as he then was) who set aside the appointments. this decision, which was in accordance with the law, resulted in Mr Justice Alvi making certain enemies. Barely two months after this decision, a writ petition was filed in the AJKHC challenging his appointment as a judge, four and a half years after his appointment, on the ground that due consultation with the then AJKHC Chief Justice had not been completed prior to his appointment.
A competent judge of integrity has been removed for sticking to his principles against powerful lobbies. This sends out a message that only pliant individuals can find accommodation within the system. Unfortunately, an independent judiciary cannot function in such an environment
The writ petition was dismissed by a larger bench of the AJKHC as the petitioner had not established his bona fides, apparent from the petition being filed after such a long time, and also that due consultation had been completed. An appeal to the AJK Supreme Court was dismissed as the petition was tainted with mala fide having been filed at the behest of the Shariat Court judges whose appointment had been nullified. After this dismissal by the highest court, the matter should have been settled finally. Not so.
Mr Justice Alvi was appointed Chief Justice of the AJKHC in April 2017. In May 2018, five judges were appointed in the AJKHC following a long drawn out tussle between the Chief Justice of the AJK Supreme Court and Chief Justice Alvi. Chief Justice Alvi had objected to certain of the judges because of their lack of competence. For this principled stance, he had to pay the ultimate price as it set off a chain of events which led to the AJKHC declaring his original appointment as a judge illegal and his consequent removal. The manner in which this was done points to victimisation on political grounds.
In October 2018, Chief Justice Alvi’s original appointment was challenged again through a quo warranto writ petition, after almost eight years had elapsed since his appointment and despite the earlier AJK Supreme Court judgment. The grounds taken in the petition were the same as before, that the condition of due consultation with the then AJKHC CJ had not been fulfilled. This writ petition was dismissed on the basis that the matter had already been settled by the AJKSC in 2015 and could not be agitated again and again.
The petitioner appealed to the AJK Supreme Court which surprisingly set aside the decision, remanding the matter back to a two-member bench of the AJKHC with a direction to decide the case on merits. However, one of the judges of the concerned two member recused himself (since he was next in line to become CJ). Consequently, a new two-member bench was constituted.
Th at bench was divided, with one holding that due consultation had been made and the other judge disagreeing. Normally, a third referee judge is appointed, and this was done; however, astonishingly the AJK Supreme Court appointed to act as referee the judge who had earlier recused himself. The referee judge agreed that the appointment was unlawful, with the consequence that Mr Alvi stood removed both as judge and CJ. It is important to note that Mr Alvi’s retirement was due in a few months. To arrive at their decision, the majority judges relied on the technicality that consultation had been done after the AJK President had been advised by the AJK Council to make the appointment. Mr Alvi has appealed this decision to the AJK Supreme Court where the matter is pending but no stay has been granted him.
The decision can be criticised on several grounds. Firstly, the AJK President had duly consulted the then Chief Justice. That the consultation had been made after the Council’s advice had been received by the President was at best a minor irregularity which should not have vitiated the appointment of a sitting CJ. Secondly, a writ is a discretionary remedy and before issuing a writ the court has to satisfy itself regarding the petitioner’s bona fides. The petition’s timing– almost eight years after the appointment– as well as the petition being filed after Mr Alvi opposed appointment of unsuitable candidates for judgeship raises serious questions about the petitioner’s bona fides. There is also the consideration that a similar petition had been thrown out earlier by both the AJK High Court and Supreme Court.
A former AJKSC CJ, Mr Justice (retd) Manzoor Gilani, has criticised the decision. In a newspaper article, he has said that a writ, being a discretionary remedy, should only be issued where the requirements of “propriety, legitimacy, morality, equity, justice and good conscience” are fulfilled, which requirements are not met in this case. Moreover, he points out that if there was any irregularity in the original appointment, it stood cured when he was appointed Chief Justice in 2017 in an admittedly legitimate manner.
Some of AJKSC decisions in this matter are also curious. For example, the decision to appoint the same judge as referee judge who had earlier recused himself. Surely the matter could have been entrusted to another judge. Moreover, the refusal of the AJKSC not to grant a stay while Mr Alvi’s appeal is pending is also questionable particularly as a stay has recently been given in a similar appeal filed by another judge (Justice Chaudhry Munir) against his removal.
The entire chain of events narrated above smacks of unfair treatment of Mr Alvi as a result of his principled decisions on certain matters. His removal on narrowly technical grounds while ignoring certain basic principles has the effect of upsetting the system and shaking public confidence in the judiciary. A competent judge of integrity has been removed for sticking to his principles against powerful lobbies. This sends out a message that only pliant individuals can find accommodation within the system. Unfortunately, an independent judiciary cannot function in such an environment.
The writer can be reached at [email protected]