By Justice (r) Muzaffar Ali
I myself is a student of law, remained practicing lawyer since 1983. In the year 2005, I was inducted as a judge to the chief court GB. Served in higher judiciary up to 2016 and retired from Supreme Appellate Court, Gilgit-Baltistan. Despite having about 33 years’ experience in law, still feel short of knowledge. Having gone through “The Gilgit-Baltistan (Elections and Caretaker Government) Amendment Order” dated 15th may 2020. Some legal objections struck my judicial mind but before going to discuss the same I would like to invite the juristic critique from all to make me understand if am wrong in my view point.
The incumbent Government in Gilgit-Baltistan Breaths its last as its tenure is going to be ended on 23rd June 2020. The new elections under “The Government of Gilgit-Baltistan Order, 2018” are required to be conducted within sixty days thereafter.
At this stage, the Federal Government realized that, “The Order of 2018” lacks a legal mechanism (a) To put in a caretaker Government (b) there are no election laws.
Faced with the situation, the Federal Government, instead of meeting the urgent challenge, with malafide intentions moved an application before the august Supreme Court with a prayer to get permission of the court to amend “The Order, 2018”.
In my opinion, the federation did not need the Supreme Court’s permission to amend the Order 2018. But, the Federal Government still moved the application on the pretext of guidelines issued by the Supreme Court in its judgement dated 17/01/2019. The guidelines given by the Supreme Court in the cited judgement are related to the “Annexed Proposed Order 2019” which has not been promulgated by the Federal Government in one or another pretext. In fact, the Federal Government by pressing the urgency of situation wanted to get a ratification of “The Order 2018”, through the Supreme Court.
The honorable judges in the bench, hearing the application, deftly understood the hidden intention of the government and guided the Federal Government to meet the situation.
The guidance in the order, dated 30/04/2020, is based on the honorable judges’ legal dictum, living aside the prayer made in the application. The honorable court in its judgement ordered that, (a) the federal government may issue a presidential order to adopt Elections Act, 2017 etc., and (b) in order to set in a caretaker government, barrow the Article 56(5) etc.
At this juncture, it is pertinent to mention that Gilgit-Baltistan, although in de facto jurisdiction of Pakistan, is deprived of constitutional status and is being ruled through administrative orders. Lastly, the people of GB have filed various petitions to get remedies from the apex Court of the country.
The honorable Court addressed this chronic issue creating a midway without prejudicing the Kashmir issue. During the hearing, the learned attorney general of Pakistan submitted a new order framed by the federal government. The honorable bench, after going through the new order and making some amendments of its own and with the consent of all the parties, delivered its celebrated judgement dated 17/01/2019, as reported in PLD 2019, page 357.
The learned Supreme Court annexed “The proposed Order, 2019” with the above cited judgement and made the same part of it. The Supreme Court in its judgement has bound the federal government to promulgate the proposed Order, 2019 at once or in any case within a fortnight thereof. The federal government did not comply with this direction of Supreme Court yet and avoided its promulgation, carrying the business of GB under Government Order, 2018.
The government, thus, again ignored the directions given by the august Supreme Court.
Instead, the President of Pakistan on the advice of the Prime Minister promulgated “Gilgit-Baltistan (elections and Caretaker Government) Amendment Order, 2020, whereby, a new article 48-A was inserted in the “Government Order, 2018”.
In its order dated 30-04-2020 the august Supreme Court has directed the learned Attorney General to place on record the Presidential order issued to implement the Supreme Court’s order in letter and spirit and hopefully, the same has been placed in record in the Supreme Court as such. Let it be decided by Supreme Court, either the promulgated “Presidential Order, 2020” is contradictory to the august Supreme Court’s Order or not.
Although the promulgated presidential Order 2020 enabled amendment of Order 2018 and incorporated a new article 48-A in it, but in my opinion, it does not meet the difficult legal situation arising for conducting the coming elections in Gilgit Baltistan. At this stage, I would like to reproduce the sub-rule one of the same “48-A. Adaptation of electoral and caretaker government.-(1) The Election Act, 2017, all rules, regulation and by laws, framed thereunder (as are in force in Pakistan) shall be adapted in the territory of Gilgit-Baltistan, mutatis mutandis.”
The plain reading of above reproduced Article 48-A (1) transpires that the president of Pakistan, in contravention with the directive given by the supreme court, has not adopted Elections Act, 2017 in the territory of Gilgit Baltistan mutatis mutandis: meaning thereby is that whenever a federal law is adopted for a region to which the same was not extended in past then, the adaptation includes applicable modifications in the adaptation order and it is enforced at once with the modifications relevant to the region in which the federal law is adopted.
The reading of the reproduced article gives an impression of future implementation but I visited through the Government Order, 2018 and failed to find any other authority or provision which was meant to adopt federal laws.
Last but not the least, the Federal Government, the provincial government of GB and all other authorities concerned have presumed that insertion of new article 48-A has sufficiently adopted the Elections Act, 2017 and are intended to process the election program. The learned chief election commissioner GB has issued orders under the provisions of Elections Act, 2017 forgetting the fact that he, being the Chief Election Commissioner of GB under article 97 of the Government of Gilgit Baltistan Order, 2018, appears nowhere in the Elections act, 2017.
If one goes through chapter 1 of the Act 2017, section 2 (ix) and (x) define election commission of Pakistan constituted under Article, 218 of the constitution and chief election commissioner appointed under Article 213 of the constitution. Again, the sub-section 2(iv) defines “Assembly” meaning the national assembly or the provincial assembly provided under the constitution of Pakistan, while the GB assembly has been constituted under Article 48 of the Order, 2018 and it does not appear anywhere in Act, 2017.
Therefore, unless and until an adaption order is issued by the competent authority with applicable modifications and construed to refer chief election commissioner GB and also construed to refer GB assembly to construe in the Act, 2017, all orders, without that adaptation Order with modification, of honorable chief election commissioner of GB would be void ab initio and the coming election in GB would be nullity.
The contributor is a retired judge of the Supreme Appellate Court. He can be reached at firstname.lastname@example.org.