The constitutional imbroglio of Gilgit-Baltistan is as old as the “Kashmir issue”.
GBians liberated their mother land from illegal occupation of the Maharajar regime and acceded to Pakistan. People constituted a local government in the region. Thereafter, the newly created Islamic country, Pakistan, extended its de-facto jurisdiction over the region, but at the same time attached the future of Gilgit-Baltistan to the “Kashmir issue”.
State of Jammu & Kashmir, ruled by Maharaja before partition of Indo-Pak, is currently divided into three parts. The main part was captured by Indian army which is still called Indian Occupied Kashmir. A small portion thereof was liberated by the Kashmiris with the help of tribal men, which is called Azad Jammu and Kashmir. The third part is Gilgit-Baltistna, which is also considered disputed under UN Security Council resolutions.
Both, India and Pakistan, claim the region to be their own; one calls it a ‘jugular vein’, while the other calls it an ‘Atoot Ang”, or indivisible part. This conflict has repeatedly taken both nuclear armed nations to wars; the latest skirmish had the region horrified with the prospect of blowing into a full-scale war.
India gave a special status to occupied Kashmir under Article 370 of Indian constitution while Pakistan also awarded a special status to AJ&K through an Act of parliament. People of AJ&K have their own Constitution. But, unfortunately, Gilgit-Baltistan has been ruled through executive “Orders” imposed from time to time by the Federal Governments in Islamabad, despite a persistent protest from the locals.
The Federal Governments deprived people of Gilgit-Baltistan of their fundamental and constitutional rights, as such there remained no option but to invoke the jurisdiction of “Supreme Court of Pakistan”. Hence, the issue was taken to Supreme Court and got a verdict from there with the directions to provide fundamental rights safeguarded by an independent Judiciary guaranteed by constitution even if this needed to emend the continuation of Pakistan. However, the verdict given by the august “Supreme Court” in the well-known case, “Al-Jihad Trust”, fell on deaf ears, ignored by the federation for decades.
Thereafter, many petitions under Article 184(3) were submitted before the Supreme Court; even the federation filed a petition against an order passed by the Supreme Appellate Court GB whereby, “executive order 2018” was suspended.
The Supreme Court heard all the petitions about constitutional status of Gilgit-Baltistan pending before, after getting legal assistance of learned attorney General, counsel for petitioners and even getting assistance of senior jurists as “amicus curiae”.
During pendency, a committee headed by learned Attorney General submitted a new “proposed order 2019” before the august Supreme Court. The honorable Court with the assistance of all the jurists appeared in the case and honorable Attorney General once again visited through the proposed “order” modified and sanctioned it by annexing the same with the judgment announced on 17-01-2019 as part of it and directed forthwith promulgation of the same by the President of Pakistan on the advice of the Federal Government and in any case within a fortnight hereof;
The Federal Government, on one or another pretext did not comply with the mandatory directive of the august Supreme Court and used delay tactics to abuse the process of law, apparently submitting applications to get extension of time to advice President of Pakistan to promulgate the attached order.
The honorable Supreme Court did not extend any further time on the application submitted before the Court. During pendency of the application, the Federal government has again taken a U-turn by filing another application to amend the “annexed order 2019”. The situation has jolted bar counsel and other bar associations in GB, triggering them to resist malafide move of the Federation; their representatives appeared before on the date of hearing.
Through a plain reading of the judgment, I have come to the conclusion that the federation cannot introduce any amendment to the “order 2019”unless the same is promulgated by the President, thereafter too the Federation can introduce amendments within the ambit of directive (II) of SC in its judgment. The amendment application submitted without first complying with the directives issued by the Supreme Court amounts to contempt of court. The situation in this case is parallel with the situation that had in the judicial history when PM Yousaf Raza Gillani using executive tricks impliedly refused to comply the directives issued by the august Supreme Court and had to face contempt of court and resultantly lost his premiership.
During proceedings on 22-05-2019, although the honorable judges (as reported in the newspapers) showed their annoyance through their remarks, it seems the honorable judges acted upon the principle of judicial restrain, otherwise the Federation might be taken for contempt of court.
In further proceedings, if the Federation insists its plea of amendment and requests for getting further time to send its advice to the president for promulgation of the proposed order which is annexed to the judgment, then the legal status may turn towards contempt of court.
The federation must understand that the honorable court has provided judicial imprimatur and permanence to the proposed “order” and restrained the executive from their whimsical interference and awarded unassailable judicial protection to people of Gilgit-Baltistan in the cited judgment.