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ISLAMABAD: Chief Justice Mian Saqib Nisar on Monday dropped hints of pronouncing a meaningful judgement to grant fundamental rights to the citizens of Gilgit-Baltistan (GB).

Headed by the chief justice, a seven-judge Supreme Court bench also ordered the federal government to furnish before it the recommendations adopted by a high-level committee constituted to examine the constitutional, administrative and governance reforms for Gilgit-Baltistan.

The court asked Attorney General Anwar Mansoor Khan to share the set of recommendations of the committee as well as the draft of the amendments being brought in the relevant laws with senior counsel Barrister Aitzaz Ahsan, who has also been appointed amicus curiae, as well as petitioner’s counsel Salman Akram Raja.

The court had taken up a set of petitions challenging the Gilgit-Baltistan Order, 2018, the Gilgit-Baltistan Empowerment and Self Governance Order, 2009, as well as the right of the citizens of the area to be governed through their chosen representatives.

Govt asked to furnish recommendations adopted by special committee

The special committee was constituted by the government with the federal minister for Kashmir affairs and Gilgit-Baltistan as its convener and members including the federal minister for law and justice, the Attorney General for Pakistan, the GB governor, the GB minister for law, secretaries of foreign affairs, defence and Kashmir affairs and Gilgit-Baltistan, the GB chief secretary and the joint secretary or the deputy secretary (finance) of the GB Council.

During the hearing, Aitzaz Ahsan pleaded before the bench that under the international forums including the United Nations, Gilgit-Baltistan as an interim arrangement was under the administrative control of Pakistan until plebiscite was conducted.

Moreover no party including the UN, Pakistan or India could independently determine the status of the territory, therefore the Supreme Court could ask the federal government to consider bringing legislation by giving it an overarching sanctity which should be lower than the constitutional amendment in status but should be at the higher pedestal from the presidential order to grant fundamental rights to the people of Gilgit-Baltistan and accept their rights of self-governance and independent judiciary.

The judgement so pronounced by the Supreme Court should hold in clear terms that the people of Gilgit-Baltistan were the citizens of Pakistan, the amicus curiae said.

Mr Ahsan also suggested to the chief justice that since he was looking at an imminent retirement, it would be most appropriate if he delivered such an important judgement.

Justice Umar Ata Bandial observed that instead of touching or considering international laws, only the rights of the people be focussed.

Justice Ijaz-ul-Ahsan observed that laws should be legislated instead of the constitutional amendments to declare Gilgit-Baltistan a provisional province of Pakistan.

Earlier, the court expressed regret when Salman Akram Raja argued that the people of Gilgit-Baltistan were being treated like second class citizens.

This was an irresponsible statement which had the potential of causing an irreparable loss, observed Justice Sheikh Azmat Saeed, adding that there had been a limit to their patience and restrain.

The counsel argued that he wanted to say that the people of the area should be allowed to participate in the legislative work through their representations. There was a situation where certain class of citizens were not being represented and the prime minister had become the sole entity to decide issues concerning Gilgit-Baltistan, he added.

At this the chief justice wondered whether the counsel was seeking representation in the Senate as well as the National Assembly which could not be done through the constitutional amendment. “Can we ask parliament to do a constitutional amendment?” he remarked.

Salman Raja, however, recalled that the apex court had done so in the 18th Amendment case.

The petition being adjudicated upon seeks to declare Statutory Regulatory Order (SRO) No. 786 (1) of Sept 9, 2009, Gilgit-Baltistan Empowerment and Self Governance Order, 2009, which was amended in Feb 2015 empowering the minister for Kashmir Affairs and Northern Areas to act as the GB governor as illegal, unlawful and contrary to the May 1999 Supreme Court judgement in the Al-jihad Trust case.

Recalling the 1999 verdict which had held the two million people of the Northern Areas as the citizens of Pakistan, the counsel highlighted that the judgement had ordered the federal government to take proper administrative and legislative measures ensuring the people of the Northern Areas enjoy their rights as guaranteed in the 1973 Constitution.

Regarding the right to access to justice through an independent judiciary, the apex court through its judgement had also asked the federal government to equate the Chief Court of the Northern Areas with that of the high court besides the jurisdiction exercised by the courts of Gilgit-Baltistan be expanded in such a way to include the powers of entertaining constitutional petitions for the enforcement of the fundamental rights of the people in addition to providing them the right to approach a higher forum for leave to appeal against the orders of the chief court, the counsel argued.

In 1999, the apex court had given a time frame requiring the government to initiate appropriate administrative and legislative measures within six months by making necessary amendments in the Constitution / relevant statutes / orders / rules / notification, the petition stated.

Such amendments should aim at ensuring the citizens of the Northern Areas the right to be governed through their chosen representatives and to have access to justice through an independent judiciary.

Published in Dawn, December 4th, 2018

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