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Gillani vsPK

Gillani vsPK

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Published by: JamilMaqsood on Jul 16, 2009
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Justice Syed Manzoor Hussain Gillani v/s Government of PakistanBEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN(Original Constitutional Jurisdiction)Const. Petition No. /2009 JusticeSyed Manzoor Hussain Gillani s/o Syed Hassan Shah Gillani, r/o 1-Shaukat Line,opposite Neelam Stadium, Muzaffarabad, Azad Kashmir. Petitioner Versus1. Government of Pakistan through Principal Secretary to the Prime Minister, PrimeMinister Secretariat, Islamabad 1.Prime Minister of Pakistan as Chairman AzadJammu & Kashmir Council through Secretary In charge, Azad Jammu & KashmirCouncil, Secretariat, Islamabad2 1. Ministry of Law, Justice and Human Rights,Government of Pakistan, Islamabad through its Secretary 1. Ministry for KashmirAffairs & Northern Areas, Islamabad through its Secretary 1. The Azad Jammu &Kashmir Council, Secretariat II, Islamabad through its Secretary 1. Government of Azad Jammu & Kashmir, the Secretariat, Muzaffarabad, through its Chief Secretary 1.Department of Law, Justice, Parliamentary Affairs and Human Rights Azad Jammu &Kashmir through its Secretary 1. The Honable Mr. Justice Muhammad Riaz AkhtarChaudhry, Chief Justice Azad Jammu & Kashmir Supreme Court, through RegistrarSupreme CourtRespondentsCONSTITUTIONAL PETITION UNDER ARTICLE 184(3) OF THE CONSTITUTIONOF THE ISLAMICREPUBLIC OF PAKISTAN, 1973 READ WITH ORDER XXV OF THE SUPREMECOURT RULES, 1980Respectfully Sheweth:-1. The petitioner is a law abiding citizen of Pakistan and the senior most judge of the Honable Supreme Court Azad Jammu & Kashmir having worked assuch since August 2004. The petitioner has had an unblemished record of servicenot only as judge of the Supreme Court but as judge of the Azad Jammu &Kashmir High Court (1991-2001), as its Chief Justice (2001-2004) besides havingheld the offices of the Advocate General & Chief Election Commissioner, AJK,and the Vice Chancellor of the AJK University. He has immensely contributed tothe development of law through judicial pronouncements of constitutionalimportance and wrote multiple articles published in the well respected journalsof Pakistan besides being the author of three books on constitutional law; 2. TheGovernment of Pakistan has assumed the responsibilities of the Azad Jammuand Kashmir territory, called local authority within the spirit of various U.N.Security Council and UNCIP Resolutions and its administration is regulated forthe time being under the Azad Jammu and Kashmir Interim Constitution Act,1974, (hereinafter referred to as the Interim Constitution Act, which is given bythe Government of Pakistan for the better Government and administration. The relevant part of thepreamble of the Interim Constitution Act states that: AND WHEREAS, it is
 
necessary to provide for the better Government and administration of AzadJammu and Kashmir until such time as the status of Jammu and Kashmir isdetermined as aforesaid and for that purpose to repeal and re-enact the AzadJammu and KashmirGovernment Act, 1970, with certain modifications; AND WHEREAS, in thedischarge of its responsibilities under the UNCIP Resolution, the Government of Pakistan has approved of the proposed repeal and re-enactment of the said AzadJammu and Kashmir Government Act, 1970, and authorized the President of Azad Jammu and Kashmir to introduce the present Bill in the LegislativeAssembly of Azad Jammu and Kashmir for consideration and passage.(Underlining is added for the sake of emphasis) 1. The Interim Constitution Actvisualizes trichotomy of legislative and executive powers distributed between theGovernment of Pakistan directly, as well as indirectly through the Azad Jammuand Kashmir Council, which is headed by the Prime Minister of Pakistan as itsChairman while the powers of the local governance vest in the Azad Jammu andKashmir Government. The Prime Minister of Pakistan is defined in sub-section(14) of Section 21 of the Interim Constitution Act asfollows:-(14) The word The Prime Minister of Pakistan wherever occurring inthissection shall be deemed to include the person for the time being exercising thepowers and performing the functions of the Chief Executive of Pakistan. Thepowers vested in the Government of Pakistan and the Azad Jammu andKashmir Council under different sections and schedule III of the InterimConstitution Act are excluded from the purview of Azad Jammu and KashmirAssembly and Government under sections 19, 21(7) and 31(2) of the InterimConstitution Act. Besides above, the Government of Pakistan has an overridingauthority in relation to AJK under Section 56 of the Interim Constitution Actwhich is as follows:- 56. Act not to derogate from responsibilities of Pakistan.Nothing in this Act shall derogate from the responsibilities of the Government of Pakistan in relation to the matters specified in sub-section (3) of Section 31 orprevent the Government of Pakistan from taking such action as it may considernecessary or expedient for the effective discharge of those responsibilities 2. The Government of Pakistan has been making and dismissing theGovernments of AJK under the authority of this provision.1. The executiveauthority of the Council is exercised by its Chairman, the Prime Minister of Pakistan (or the Chief Executive of Pakistan as the case may be), who performshis functions from Islamabad as a persona designate either directly or throughthe Secretariat of the Councillocated in Islamabad. Section 21(7) of the Interim Constitution Act is reproducedas follows: 21(7)The executive authority of the Council shall extend to all matterswith respect to which the Council has power to make laws and shall be exercisedin the name of the Council by the Chairman who may act either directly orthrough the Secretariat of the Council of which a Federal Minister nominated bythe Chairman from amongst the members of the Council and not more thanthree advisors appointed by the Chairman shall be in charge. [underlining isadded for the sake of emphasis]1. That the Azad Jammu and Kashmir is assimilated in the mainstream of Pakistan for all practical purposes, including administration, economic andsocial developments etc. The Government of Pakistan has issued two successivenotifications to this effect that Azad Jammu and Kashmir shall for all practicalpurposes be treated like any other province of Pakistan. These notifications have
 
been relied and acted upon in the cases reported as [PLJ 1999 AJK 1] and [PLD2006 Law. 465].
 Besides these notifications, AJK is a territory of Pakistan in termsof Article 1(2)(d) of the Constitution of Pakistan and therefore the Government of  Pakistan is responsible for the overall governance of itsterritories;
???????????1. That the Interim Constitution Act has, at least to the extent of Azad Jammuand Kashmir, settled the relationship with Pakistan, within the spirit of Article257 of the Constitution of Pakistan 1973, pending final solution of the Kashmirimbroglio, and to give effect to this relationship, a special clause (2) is added insection 4(4)(7) of the Interim Constitution Act, overriding the fundamental rightof freedomof association as: No person or political party in Azad Jammu and Kashmir shallbe permitted to propagate against or take part in activities prejudicial ordetrimental to the ideology of the State’s accession to Pakistan. This clause hasreceived the judicial assent also in the case Aftab Hussainvs. Azad Jammu and Kashmir Legislative Assembly [reported as PLJ 1991 AJK 60].1. That the Judges of the Supreme Court and High Court of Azad Jammu andKashmir are appointed by the President of Azad Jammu and Kashmir on thebinding advice of the Prime Minister of Pakistan designated as Chairman of theAzad Jammu and Kashmir Council, in accordance with the process prescribedby sections 42 and 43 of the Interim Constitution Act respectively which aresimilar to corresponding provisions of Constitution of Pakistan. 1. That thepetitioner was appointed as Judge of Azad Jammu and Kashmir High Court on5thof May 1991 and its Chief Justice on May 4, 2001 and as one of the three judges of the Supreme Court, AJK in Aug 2004 on the advice of the PrimeMinister of Pakistan, as Chairman of the AJK Council. 1. That after conductingelections for AJK Assembly in June 2006 as Chief Election Commissioner of AJK, the incumbent Chief Justice Supreme Court Justice Muhammad RiazAkhtar Chaudhry (who was the Chief Justice of the AJK High Court at thattime), was appointed as Judge in the Supreme Court of AJK on 26.9.2006 againsta vacant position in the Supreme Court.1. That the incumbent Chief Justice, who was six years junior in High Court and twoyears in the Supreme Court AJK as against the petitioner, was directed to beappointed as Chief Justice of the AJK Supreme Court on the mandatory advice of Prime Minister of Pakistan issued on 20.10.2006 and notified by the AJK Government on 21.10.2006 i.e. just within twenty four days of his appointment asJudge of the AJK Supreme Court clearly ignoring the seniority position of thepetitioner as settled bythe constitution, past conventions and the principles as laid down by the superiorCourts of Pakistan. (Copies of advice and Notification are attached herewith). 11.That the Prime Minister of Pakistan had no legal or constitutional justification toadvice the appointment of any person other than the petitioner, being the senior mostJudge having an unblemished record of service, as the Chief Justice of AJK SupremeCourt.1. That as a result of illegal and unconstitutional appointment of the incumbentChief Justice, the petitioner went on long leave in protest. A number of representations were made by the petitioner to the PrimeMinister of Pakistan but the same have not received any heed or attention. That a

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