The Law is Above You
Three years ago, Justice Sardar Muhammad Shamim Khan took oath as the Chief Judge of Supreme Appellate Court of Gilgit-Baltistan for a term of three years as envisaged under Article 75(8) of the Government of Gilgit-Baltistan Order 2018. With his retirement due on 4th November 2025, Prime Minister Shehbaz Sharif recently approved an extension in his tenure.
The notification stated:
“In exercise of powers conferred under Article 75(5) of the Government of Gilgit-Baltistan Order, 2018, the Prime Minister of Pakistan/Chairman of Gilgit-Baltistan Council, on the advice of Governor of Gilgit-Baltistan, has been pleased to appoint Justice Sardar Muhammad Shamim Khan as the Chief Judge of the Supreme Appellate Court, Gilgit-Baltistan, with effect from November 5 till attaining the age of 70 years in terms of Article 75(8) of the GB Order 2018.”
The purpose of this article is to examine the legality of the decision of the Federal Government whether such exercise of power is permissible under the law. To understand this issue, we must first revisit the long standing controversy surrounding judicial appointments in Gilgit-Baltistan. The conundrum of appointment of judges in G-B is as old as the GB Order itself but the matter was taken up to the Supreme Court of Pakistan in 2022 on a petition filed by the then Government of Gilgit Baltistan, where after, the appointment process of judges of the Superior Judiciary was stayed on March 2023. After the enactment of 26th Constitutional Amendment and the formation of a Constitutional Bench, the matter was transferred to a five-member Constitutional Bench headed by Justice Amin-ud-Din Khan. The bench subsequently lifted the stay imposed on appointment of judges in April this year and held that the appointments to superior courts of Gilgit-Baltistan would be made under the GB Order 2018.
The conclusion reached may sound quite obvious to many as if the GB Order of 2018 is the governing law, why was such a ruling necessary? The question surfaced from arguments urging the Court to implement the 2019 Framework, which was a result of challenge to GB Order 2018 at the time of its enactment. A five-member bench of Supreme Court headed by the then Chief Justice Saqib Nisar in case titled “Civil Aviation Authority Vs. Supreme Appellate Court of Gilgit Baltistan, PLD 2019 SC 357”, formulated recommendations on how judges should be appointed and proposed a framework called “Gilgit-Baltistan Governance Reforms 2019”. The proposed framework of 2019 is part of the judgment and without question was a better and more transparent mechanism for appointment of judges but it is not the domain of the Courts to legislate. The Courts are to interpret the law and strike down a law if they think it infringes upon any salient features, therefore, the request made to the Supreme Court to implement the proposed frame work of 2019 was not a legally sound request. It is a settled principle of law that right thing has to be done by the right authority alone. Even a right thing done by a wrong authority is nullity in the eyes of law. Similarly, no matter how better, transparent and progressive the 2019 frame work may be, since it was never enacted by the Legislature, the same could not be given the status of law. Therefore, to give clarity to this cloud surrounding 2018 vs. 2019 controversy, the Constitutional bench settled this issue once and for all.
Now the core question, whether extension can be granted to the Chief Judge under the framework of GB Order 2018. To answer this question and for ease of readers, the said provisions relied upon by the Federal Government are reproduced below.
- Gilgit-Baltistan Supreme Appellate Court
(5) The Chief Judge of Supreme Appellate Court shall be appointed by the Prime Minister on the advice of the Governor and other Judges shall be appointed by the Chairman on the advice of Governor after seeking views of the Chief Judge.
(8) The Chief Judge and Judges of the Gilgit-Baltistan Supreme Appellate Court shall be appointed for a term of three years and shall hold office until he attains the age of 65 years, or unless he sooner resigns or is removed from office in accordance with law.
A plain reading of Article 75(5) provides that the Prime Minister is to act on the advice of the Governor for the appointment of Chief Judge. It cannot go unnoticed that the said articles referred to, only deal with the appointment, not “extension” or “reappointment”. In fact, there is no provision in the GB Order 2018, that caters the question of extension in the tenure of Chief Judge. One may wonder if the terms “appointment” or “reappointment/extension” could be interchangeably used. To our relief, it is not a matter of first impression. Our Courts have already dealt with a similar question in the case titled “Jurists Foundation through Chairman V Federal Government through Secretary, Ministry of Defence, PLD 2020 SC 52”, the case concerning the extension of General Qamar Javed Bajwa. The Supreme Court held that in the absence of legal provision for extension or reappointment, such action had no legal effect and suspended the notification of extension in the tenure of General Bajwa. By the same reasoning, the extension in the tenure of Chief Judge (SAC) GB by the Prime Minister is of no legal basis. The government has granted extension of tenure despite the fact that there is no provision of extension in the GB Order 2018. The government has granted extension despite the fact that the Prime Minister has no power to grant extension under GB Order 2018, in fact under Article 46 of the Order, the powers of the Prime Minister are limited to those expressly conferred by law as may be prescribed by rules. It has been over and again held by the Superior Courts and is a general rule of interpretation that the rules framed under any law cannot go beyond parent statute under which those rules are framed. But let’s assume for a moment that there exist rules which allow such an extension, still such rules would be declared ultra vires as the parent law i.e. GB ORDER 2018 is silent about the same and rules cannot supersede the parent law. Such rules would be declared ultra vires if they do not draw their power from the parent law and is a ground for judicial review.
Now the entire problem, as far as I understand, is about the competence of Federal government to grant extension. It is about the illegitimate exercise of governmental power. The Prime Minister is not competent to grant an extension as his powers are subject to the powers so conferred under the law. The government has the option to achieve the same outcome but they chose to do so with disregard to the law. What is more troubling is that the GB Assembly remains a silent spectator as the very law from where they derive their powers and swore an oath to uphold, is being rewritten by a handful of men in Islamabad. Our history is filled with instances that whenever laws were given narrow interpretations, the result was the erosion of constitutional principles. But the present case is quite different. No matter if we give the relevant provisions a reading in isolation or give it a holistic reading considering the overall scheme of GB Order, still it is as clear as day that the decision of extension/reappointment has no legal basis and is unlawful and amounts to a fraud on the law. If one looks at the scheme of law, even the appointing authority, the Prime Minister has a fixed tenure in the office. The Governor on whose advice the Prime Minister issues extension serves at the pleasure of the President under Article 33(4) of the Order. The same Governor is obligated under Article 34(1) to act on the advice of the Cabinet and Chief Minister who also have fixed tenures. If the appointing authorities who themselves do not enjoy the benefit of extension, how could they exercise such power over a constitutional office, especially without any backing of law?
It is crystal clear that under the current framework of GB Order 2018, there can be granted no extension or reappointment as the relevant provisions regarding appointment set the retirement age of Chief Judge as 65 years under Article 75(8). The executive notification of extension in the absence of law also goes against the principle of separation of powers. In any constitutional framework, the Legislature is to make laws, the Executive is to execute the laws and the Judiciary is to interpret the laws. Chief Justice Marshall of the US Supreme Court summed it up as, “the legislature makes, the executive executes and the judiciary construes the law.” No organ of a state can resign from the functions it is assigned under the law. If through an Executive order, the tenure of a constitutional office is determined, it would be deemed as the legislature has resigned to perform their functions and it would be a betrayal of the “Will of the People”. I will repeat myself to be loud and clear that it is not the domain of the Executive to determine extension and tenure of constitutional offices without any legal backing. The principle is settled that when law requires a thing to be done in a particular manner, it has to be done in that manner alone and not doing so would be unlawful.
The current extension of tenure of Honourable Chief Judge has no legal backing. If the government wishes to provide legal cover to their action, the only lawful course is to amend Article 75 of the GB Order 2018 to include the expression “extension” or “reappointment” or “fresh appointment” and to get away with the age limit of 65 years in Article 75(8). Guidance can be sought from the case titled “Jurist Foundation through Chairman Vs. Federal Government through Secretary, Ministry of Defense, PLD 2020 Supreme Court 1” where His Lordship Justice Mansoor Ali Shah speaking for the three-member bench dealing with the question of extension of tenure of General Qamar Javed Bajwa held the extension granted to be of no legal effect and the government of the time had to pass legislation by amending the Army Act to give effect to the extension of tenure of General Bajwa. The government at that time tried to give effect to the extension and relied on the amended Army Rules. The Supreme Court held that there was no provision dealing with “extension” or “reappointment” in the parent law and declared rules to be of no legal cover. The parent law i.e. The Army Act did not include provisions related to extension. The Army Rules which are made under the Army Act were amended to legitimize the extension of tenure. Since the rules cannot go beyond the scheme of parent law, therefore, the Court didn’t accept the same and ultimately the government had to bring an amendment to the Army Act.
If a similar amendment is not brought to the GB Order 2018, a public interest petition before the Supreme Court of Pakistan would be sufficient strike down this executive notification of the government because however high you may be, the law is above you.
