By Justice (r) Muzaffar Ali
Federal authorities of Pakistan have proposed an executive order with the title “Government of Gilgit-Baltistan Order” (here in after called proposed order) which is to be tabled before the Prime Minister of Pakistan in next cabinet meeting for its approval.
The preamble of the order is interesting as such it is pertinent to reproduce the same here under:
“Whereas it is expedient to provide for greater empowerment so as to bring Gilgit-Baltistan at par with other provinces and to initiate necessary legislative, executive and judicial reforms for the aforesaid purposes.”
The “proposed order” will be extended to the whole of GB after its approval by the PM and will have a force of foundation for administration, legislation and adjudication therein Gilgit-Baltistan.
I have titled the “proposed order” as “Emperor Order” for the reason that the “proposed order” is even in contrast with its preamble and it vests all the powers of legislature, administration with the Prime Minister of Pakistan and it makes the judicial system of the GB subservient to the PM.
Firstly, it can be challenged as ultra-vires because the PM holds his office under the Constitution of Pakistan and the Constitution does not empower him to make law and simply he is administrative head in the federation of Pakistan. The parliament is the law making body and in some specific circumstances the President of Pakistan having limited powers to pass an ordinance. If the proposed order is approved and enforced in GB, the PM will gain ultra-constitutional “emperor powers” in respect of the GB and will rule over without any powers conferred on him by the Constitution. The GB will be the kingdom of PM.
That, after the approval of “the order”, the Prime Minister will create an assembly for GB without lawful authority. The assembly will be with symbolic powers of legislation and entire legislative powers will be wasted with the PM to make laws under article 60(a) of the “proposed order”. I have gone through the constitution of Pakistan to understand whether any law making power has been given to the Prime Minister but failed to found therein, hence the Prime Minister of Pakistan will make laws for GB assuming the majestic powers as a king of GB.
That, there has been constituted a government for GB comprising of Chief Minister and his cabinet. The Chief Minister and his cabinet members will be chosen representatives of GB but their administrative powers under the “proposed order” are symbolic and their administrative powers will be at the mercy of the Prime Minister of Pakistan (the emperor).
That, there has been constituted a judicial system but subservient to the PM (the king of GB).Keeping in view the above facts, if one goes through the preamble of the order, as has been reproduced above, it seems mockery with the oppressed people of GB and nothing but disguise. I dare to ask the PM to make me understand whether, he makes the laws for other provinces of Pakistan or the provincial assemblies are making laws for provinces? The Prime Minister of Pakistan is requested to point out that whether, he constitutes provincial judiciary and appoints the judges of respective high courts? Whether,the PM constitutes the provincial assemblies under the constitution of Pakistan?Whether other provinces are administratively governed by the Prime Minister or chief ministers of the respective provinces are heads of administration in provinces?
Indeed, GB has a special status for being attached with the Kashmir issue as such the territory of GB has not been included in article-1 of the Constitution but the honorable Supreme Court of the Pakistan has declared the people of GB as the citizens of Pakistan in the historical judgement titled AL-JEHAD TRUST versus FEDERATION OF PAKISTAN, 1999 S C M R pg.1379. The August Supreme Court of Pakistan has issued directives to the Federation of Pakistan to initiate administrative/legislative measures and to make necessary amendments in the Constitution/relevant statutes to ensure fundamental rights guaranteed through their chosen representatives and to have access to an independent judiciary inter alia for enforcement of their fundamental rights guaranteed under the Constitution of Pakistan.
The summary prepared to table it before the PM and his cabinet transpires that the above cited judgement has been taken as pretext to introduce the “proposed order” wrongly interpreting the same to make the prime minister of Pakistan to rule over the GB as king of the same by framing the “proposed order” notwithstanding the directives of the Supreme Court issued to the federation of Pakistan,which includes the President, the parliament and the federal administration as per the ratio-decidendiof the judgement. The Prime Minister of Pakistan is empowered to introduce an administrative setup for the GB to enable the people of the GB to be governed through their chosen representatives and in case, the Constitution is required to be amended or a statute/statutes or any “order” having force of law are required to be amended then, the parliament/president are entitled to introduce the same amendments. The administrative authorities in Federation if take the judgement as shield to impose their tyrannical wishes against GB, hopefully the independent judiciary in Pakistan particularly the Supreme Court, which is meant to safeguard the supremacy of law, could not tolerate the ridiculous interpretation of their judgement cited above.
- It is suggested that the law division Islamabad to frame reforms for GB in the shape of a bill as per spirit of the above judgement, entrusting all the legislative as well as the administrative powers to the elected representatives of the people of GB and present the same reforms before the parliament to pass the bill.
- Since,the Supreme Court has declared the people of GB as citizens of Pakistan and it has been observed after reading the “proposed order” that the administrative authorities have clearly extended some chapters of the Constitution without any power by the Constitution, to GB for instance; (a) under article-31 of the “proposed order” Chapter 2 of Part-II of the Constitution of Pakistan has been extended to GB. (b) The jurisdiction of the council of Islamic ideology constituted under the Constitution has been extended to GB under article 67. (c) the jurisdiction of federal public service commission established under article 242 of the constitution has been extended to GB under article 95(2). (d) the jurisdiction of auditor general of Pakistan also has been extended to GB. Then, after all above, what issue prevents the federation of Pakistan to extend the jurisdiction of Supreme Court of Pakistan to the GB.Therefore, it is suggested that despite, introducing a supreme appellate court as apex court but impliedly subservient to the PM, the jurisdiction of supreme court of Pakistan may be extended to the GB.
- That, in the introductory chapter of the “proposed order” under article 2(b), all the citizens under the Pakistan’s Citizenship Act,1951 (II of 1951) have been declaredcitizens of GB too and in the first schedule of the “proposed order” pertaining to the oath of the office of the governor GB, chief minister GB, ministers of GB , speaker of the GB have been bound to take oath to discharge their duties perform functions, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan, then, what hurdle remains to declare the GB a province under the Constitution therefore, it is suggested that the GB be declared a fifth province of Pakistan.
The contributor is a retired judge of the Gilgit-Baltistan Supreme Appellate Court. He can be reached at email@example.com