Gilgit-Baltistan is a disputed region, declares SC

Apex court asks the government to promulgate amended order for Gilgit-Baltistan in two weeks; links GB’s status to Kashmir dispute  

By Farman Ali

Islamabad, Jan 17: Pakistan’s top court on Thursday ruled that Gilgit-Baltistan, like Azad Kashmir, is a disputed region putting to rest the confusion and clearing the myths about the constitutional status of the mountainous region.

The Supreme Court of Pakistan held that the current status of Gilgit-Baltistan and Azad Kashmir shall not be altered until a plebiscite is held to determine the status of Kashmir, linking it to the UN resolutions.

A larger bench of the apex court, headed by the outgoing Chief Justice Saqib Nisar with Justice Sheikh Azmat Saeed, Justice Umar Ata Bandial, Justice Faisal Arab, Justice Ijazul Ahsan, Justice Sajjad Ali Shah and Justice Munib Akhtar as its members, directed the President of Pakistan to promulgate a ‘proposed order’ by modifying the GB Order 2018 within two weeks.

The bench, however, restrained the Gilgit-Baltistan’s Supreme Appellate Court and Chief Court from calling into question the 2018 Order or any part of it. The jurisdiction of the court is confined to the territory of Gilgit-Baltistan.

The verdict, however, allows the residents of the disputed region to approach the apex court for any relief or remedy against GB courts’ decisions.

The judgment falls short of the expectations of the two million people of Gilgit-Baltistan vis-à-vis governance, internal autonomy, an independent judiciary, and fundamental rights protected by a constitution.

Judicial and legislative powers ,jurisdiction

With regard to the status, powers and jurisdiction of the judicial, legislative and executive organs established through the GB Order 2018, the bench held that the legislature would only have such powers as are conferred upon it by the Federation through the proposed order.

The SC bench further held that the courts can examine whether the GBLA has exceeded the remit of its competence as conferred by the Order while enacting a law, and can declare it to be ultra vires.

However, this jurisdiction can only apply and operate in relation to GB, and to things done or purported to be done under the 2018 Order. It cannot extend to any matter beyond or outside GB or the vires or validity of the Order itself.

Since GB is within the administrative control of Pakistan, and where Pakistan functionally exercises all aspects of sovereignty, it is clear that the Federation is fully empowered to make arrangements for the governance of the region.

The 2018 Order was issued in exercise of these powers, and the courts in GB were created under the same, the judgment read.

Therefore, it may be concluded that the intention was to give the GB Supreme Appellate Court the status of a “constitutional” court but confining the scope to interpreting and implementing the said Order and conducting the judicial review within the territory of GB in this regard.

The provision of the Order shall have effect notwithstanding anything contained in the provisions of any law for the time being in force except that in case of conflict between the laws of Pakistan and the law framed under this Order, the laws of Pakistan shall prevail.

“No amendment shall be made to the Proposed Order except in terms of the procedure provided in Article 124 of the same, nor shall it be repealed or substituted, without the instrument … being placed before this Court by the Federation through an application that will be treated as a petition under Article 184(3) of the Constitution of Pakistan,” the judgment read.

“Nothing in the judgment shall be construed to limit the jurisdiction conferred on this Court by the Proposed Order itself; and if the Order so promulgated is repealed or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution,” it said.

As for a framework for governance for GB, the bench held that we are of the view that the right to self-government through an empowered assembly as well as a robust system of local bodies must be enforced as early as possible.

Background of the case

The SC larger bench had on January 7 reserved its verdict on a set of petitions challenging the Gilgit-Baltistan Order, 2018, GB Empowerment and Governance Order, 2009 and seeking implementation of the SC verdict of 1999.

The SC in its 1999 verdict had ordered the Pakistan government to ensure fundamental rights of the GB people including the right to be governed through their chosen representatives and setting up of an independent judiciary in the region within six months of the verdict.

Ironically, successive governments instead of enforcing the judgment kept on dragging their feet for over two decades and tried to pacify the people with cosmetic measures and executive orders, compelling the petitioners to move the apex court.

The petitioners including Gilgit-Baltistan Bar Council (GBBC), Gilgit-Baltistan Supreme Appellate Bar Association, some private airlines, and individuals had sought the court intervention in defining the constitutional status of GB and enforcement of its 1999 judgment.

“Succinctly, the instant matters pertain to a very important historical and constitutional issue involving the status, authority and powers of Gilgit-Baltistan (GB) including the judiciary and the rights available to its people,” observed the CJP.

In 2012 the GB Chief Court Bar Association had filed a separate petition contending that the 2009 order did not make sufficient provisions for the appointment of judges to the SAC and threatening the establishment of an independent judiciary.

The petitioners challenged the appointments of the Chief Election Commissioner, Governor and the Chief Minister of GB under the 2009 Order and sought to declare the Order ultra vires which has no legal value unless the constitution is amended and enforcement of the fundamental rights of the GB people

In a dramatic move, the former chairman of the Supreme Appellate Court on June 20, 2018, had stayed the operation of the 2018 Order and suspended its implementation process till the decision of the suo motu taken by the said court. However, the Federation of Pakistan through the instant petition impleaded the SC to quash July 13, 2018, impugned judgment of SAC and declare it unconstitutional and beyond its jurisdiction.

The GBBC and SACBA, main petitioners, moved the SC with a plea that the 2018 Order be declared illegal, void ab initio and without legal authority.  They also sought directions to provide for good governance for GB in compliance with the direction issued by this SC in its judgment in Al-Jehad Trust case.

Citing the 1999 judgment, the SC bench declared that it could prescribe a form of government for the region, nor could it direct that the region is represented in the Parliament since that could undermine Pakistan’s stand on Kashmir.

However, there was no immediate follow-up to the judgment as the executive procrastinated. But after the lapse of a decade, the Federal Government promulgated the 2009 Order which, it argued, would establish a system of full internal governance and a step towards the empowerment of the people of GB, but was not a complete solution.

HRCP Report

The judgment cited the Human Rights Commission of Pakistan (HRCP) report in 2016 based on a fact-finding mission that the 2009 Order “falls short of providing a democratic system in which the people of Gilgit-Baltistan could enjoy the rights available to other Pakistani citizens.”

Other deficiencies noted in the report included, it did not guarantee the right to protection against double punishment nor a right to information and the right to education.

According to the report, discrimination on the basis of sex was not prohibited nor was the State obliged to take affirmative action in favour of women and children. The bench expressed dissatisfaction over the situation. Even though some rights are indeed available in GB, these are not protected under any overarching framework of a constitutional nature.

The bench said the 2009 Order failed to fully address the aspirations of the people of GB for full empowerment and representation. Reflecting this discontent, the GB Legislative Assembly passed a unanimous resolution in August 2015 demanding that the region be included in Pakistan as a constitutional Province with representation in Parliament.

The HRCP mission had noted that “a large number of people living in Gilgit-Baltistan aspire to have full rights as citizens of Pakistan. They argue that whenever it suits the federal government they are viewed as Pakistanis but when they ask for equal rights they are reminded of their controversial constitutional status.”

The division of Kashmir has dragged on for more than seven decades. Given continued Indian policy to deny a plebiscite, it is possible that it may persist for a considerable further period. Under these circumstances, it is surely a denial of fundamental rights to have the people of GB linger on in legal limbo—deprived of rights simply because they await a future event that may not practically occur within their individual lifetimes.

Sartaj Aziz Recommendations

A path forward is already available in the recommendations of the Committee on Constitutional and Administrative Reforms in GB constituted by the then Prime Minister in 2015, the bench observed.

The committee, led by former Foreign Minister Sartaj Aziz, in its report in March 2017 concluded that further reforms were required to enhance the sense of participation of the people of GB and to upgrade the standard of governance and public service delivery.

The committee noted that the reforms proposed should not prejudice Pakistan’s principled position in the context of UN resolutions on Kashmir.

The bench held “We are in agreement with the conclusions of the committee that there is a need for further substantive reforms to enhance the participation of GB’s citizenry in governance, and in no way and at no point should the proposed reforms prejudice Pakistan’s principled position regarding the status of Kashmir.

The committee recommended that GB be accorded a “provisional” and special status of a province pending final settlement of the Jammu and Kashmir dispute;  the region be given representation in the National Assembly, the Senate and in all constitutional bodies through amendments to Articles 51 and 57 of the Constitution, rather than an amendment to Article 1.

All legislative subjects other than those enumerated in Article 142 of the Constitution and its Fourth Schedule be assigned to the GB Assembly and a robust local bodies system be introduced.

Therefore, till such time that the plebiscite is held, a proper arrangement must be provided for by Pakistan for the people of GB for purposes of governance within a framework of a constitutional nature, including most importantly the enjoyment of fundamental rights.

The bench held that granting constitutionally guaranteed basic human rights including the right to representation, self-governance to the people of GB as well as all other rights enjoyed by the citizens of Pakistan does not in any way prejudice to Pakistan’s position on the plebiscite issue.

Indeed, full rights for the people of GB can only bolster Pakistan’s case for the right of self-determination for all the people of Kashmir, the bench observed, and directed the government that the committee’s recommendations relating to the provision and enforcement of fundamental rights must be implemented immediately and with full force and effect.

PTI committee

During the course of the hearing of these petitions, and in light of the submissions by various counsels and the observations of the court, the Federal Government constituted a committee headed by the Attorney General of Pakistan, to review the entire matter, and place before the court a draft of a fresh order for the GB governance.

This was done, and the draft so placed was examined by the court, the judgment said. In our view, the draft does provide a suitable framework for the governance of GB. The Federal Government stands committed to promulgating the “Proposed Order”, in substitution of the 2018 Order.

Our jurisdiction extends to giving of suitable directions to the Federation, both to promulgate the Proposed Order and also for ensuring its continuity. It is only in this way that fundamental rights can be granted to the people of GB in the meaningful and realistic manner envisaged by this Court in the case of Al-Jehad Trust, the judgment observed.

It is in the foregoing terms that we have made certain modifications to the Proposed Order, which have been incorporated therein.

“Therefore, we do not just provide judicial imprimatur to the proposed framework: we also give it permanence, so that the people of GB have unassailable confidence that their rights, and the enjoyment thereof, is not subject to the whims and caprice of every passing majority, but are firmly grounded in the Constitution itself,” the judgment read.

Nothing in this judgment shall be construed to limit the jurisdiction conferred on this Court by the Proposed Order itself; and if the Order so promulgated is repealed or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution.

CAA vs SAC and other cases

In light of the foregoing, the instant matters are disposed of accordingly, save those petitions in which a specific order or judgment, of either the GB Supreme Appellate Court or the Chief Court, has been challenged.

Such petitions shall be deemed pending and be treated and disposed of as the leave petitions.

For the petitioners Salam Akram Raja, Mian Shafaqat Jan, Barrister Masroor Shah, Ikram Chaudhry, Rai Nawaz Kharal, Bhajandas Tejwani, Syed Rafaqat Hussain Shah, AOR, and Chaudhry Akhtar Ali, AOR pleaded the case.

The court had appointed Barrister Aitzaz Ahsan as Amicus Curiae (friend of the court).

For the respondents, AGP Anwar Mansoor Khan, and his deputy Saeed Iqbal, Gilgit-Baltistan, Aurangzeb Khan, Minister of Law and Parliamentary Affairs, Gilgit-Baltistan presented arguments.

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