SC forms larger bench to hear petitions against GB Order 2018

Farman Ali


The Chief Justice of Pakistan Tuesday formed a larger bench to hear petitions about the constitutional status of GB and fixed October 15 the next date for the hearing.

A three-judge bench, headed by CJP Saqib Nisar, which was hearing the main petition filed by GB Bar Council (GBBC) Vice-Chairman Javed Ahmed through his counsel Salman Akram Raja, directed all the stakeholders to present their arguments on the next hearing.

The court will hear the case on a day-to-day basis and give its verdict in three days, the CCJP Saqib Nisar observed.

The court clubbed identical petitions regarding GB, various departments, including PIA, Customs and the federal government petition for restoration of GB Order 2018 against the judgment of the Supreme Appellate Court (SAC).

The main petitioner has made Federation of Pakistan through secretaries of Kashmir Affairs and Gilgit-Baltistan ministry, law and cabinet divisions.

The petitioner has sought provisional provincial status or provisional territory through constitutional arrangements and representation in parliament and all constitutional bodies — National Finance Commission (NFC), National Economic Council (NEC), Council of Common Interest (CCI) and Indus River System Authority (IRSA) till the final settlement of Kashmir dispute.

“This is a major breakthrough and has rekindled the hope for justice and a relief to the people of GB who have been demanding fundamental rights for the last 70 years,” commented Advocate Ahmed, who, along with senior members of the GBBC, Muhammad Hussain Shehzad and Javed Iqbal represented the GBBC in the apex court.

He was optimistic about the outcome of the case and hoped that the CJP will give relief to the people of GB and end 70 years sense of deprivation and subjugation.

GB Order 2018 has been restored till the final decision of the case.
The CJP has appointed senior advocates, Aitzaz Ahsan, and Khawaja Haris, as friends of the court to assist the apex court in this important case.

The petitioner argues that the people of GB are facing discriminatory and unfair treatment. The so-called Gilgit-Baltistan Order, 2018, is nothing but an illusion imposed upon the people of GB in the name of empowerment. In fact, the order has denied their fundamental right to self-governance through a democratic process. The Order of 2018, like the repealed Order of 2009, denies to the people of Gilgit-Baltistan the right to access to an independent judiciary separate from the executive.

The petition further maintains that denial of rights amounts to a violation of the landmark 1999 verdict of the apex court. The Bar Council has already challenged the repealed GB Self-Governance Order promulgated during PPP government in 2009 through a petition filed in 2015 which is subjudice before this court.

The petitioner has prayed that the fundamental rights of the people of GB be enforced under the Constitution of Pakistan Article 184(3) and the constitutional status of region by declaring the people as citizens of Pakistan with their full participation in the Federation, including the right to appeal, review, revision before the Supreme Court of Pakistan.

The GB be given full-fledged provincial status.

The SC in its judgment of 1994 had declared that the people of Northern Areas (now called Gilgit-Baltistan) are citizen of Pakistan for all intend and purposes and directed the Federation of Pakistan to initiate appropriate administrative/legislative measures within a period of six months from the date of the judgment to make necessary amendments in the Constitution to ensure that the people of Northern Areas enjoy all fundamental rights, namely, to be governed through their chosen representatives and to have access to justice through an independent judiciary for enforcement of their fundamental rights guaranteed under the Constitution.

The petitioner further maintained that in pursuant to the SC judgment of 1999, the Federal Government had constituted a special committee to propose constitutional and administrative reforms in GB on 29 October 2015 under the chairmanship of Sartaj Aziz, then adviser to the prime minister on Foreign Affairs.

The committee finalised its report on 10th March 2017 and submitted to the then Prime Minister Nawaz Sharif with the recommendations that fundamental rights of the GB be enforced with constitutional status and declaring them as full citizens of Pakistan.

Unfortunately, the recommendations of the committee could not be implemented in time and in the last week of its tenure, the impugned Order of 2018 was issued hurriedly even without presenting the draft before the GB Assembly without taking into confidence its members or the political parties.

The petitioner contended that the imposition of the GB Order 2018 is a violation of the fundamental and democratic rights of the people of GB and defies the SC directions of 1999.

The petitioner has prayed that the State is under an obligation to ensure equal rights to people of GB to govern themselves through democratic self-governance.

The petitioner argued that the GB Order, 2018 has been promulgated by the President of Pakistan on the advice of the Prime Minister and notified in the Gazette of Pakistan on 6 June, 2018 as a Statutory Regulatory Order and not as any provision of the Constitution which is in stark contrast to the democratic participation in the making of laws.

The Order of 2018 contains provisions in violation of the fundamental rights guaranteed by the Constitution to the citizens of Gilgit-Baltistan. The Order stipulates that power to make laws with respect to any matter in the Legislative List vests exclusively in the Prime Minister of Pakistan, denying the power to the assembly.

The appointment of the Chief Judge of the Supreme Appellate Court as well as of other Judges has been left entirely in the hands of the executive. No role has been ascribed to the judiciary in the appointment of judges which is a violation of Article 9 of the Constitution of Pakistan and inimical to the existence of an independent judiciary.

No procedure for appointment involving the judiciary and to protect the independence of the judiciary has been prescribed.

The Chief Judge, judges of the GB Chief Court and Chief Election Commissioner are also appointed by the prime minister.

Therefore, the petitioner has prayed the apex court to declare the SRO of June 6th, 2018 illegal, unlawful, void ab initio, without lawful authority and contrary to the SC judgment and violation of the fundamental rights guaranteed by the Constitution of Pakistan which was held applicable to the two million people of GB.

The petitioner has prayed that arrangements be made by giving due representation to the territory of Gilgit-Baltistan in the National Assembly and Senate allocating ten seats in the National Assembly, 12 seats for the Senate through Constitutional amendments.

Jurisdiction of the Supreme Court of Pakistan be extended to Gilgit-Baltistan through its circuit bench.

The provisions of section 75 of the Order 2018 related to GB Supreme Appellate Court may be declared void as the provisions negate the principle of an independent and free judiciary and direction be issued for the constitution of a SAC in accordance with the principles laid down by this apex court as regards the process of appointment and security of tenure of the judges.

Necessary amendments in the constitution be made for establishing GB High Court, the petition prayed.

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