Amendments in G-B Government Order, 2018: SC issues notices to G-B government, AG

The Supreme Court on Tuesday issued notices to the Gilgit-Baltistan government and its advocate general on a petition to allow the federal government to make necessary amendments in the Government of Gilgit-Baltistan Order, 2018, for caretaker setup for conducting elections for the GB Assembly.

A seven-member larger bench, headed by Chief Justice Gulzar Ahmed heard the federation's petition.

Attorney General for Pakistan Khalid Jawed Khan informed that the terms of the Gilgit-Baltistan Assembly would end in June 24, 2020. Hence there is urgency to provide legal mechanism for holding elections, including setting up of caretaker government.

He submitted that the subject "Election in Gilgit-Baltistan" was not clearly enumerated in the Government of Gilgit-Baltistan Order 2018 (GB Order, 2018) or in Gilgit-Baltistan Reforms 2019, which needed to be rectified.

The present government of GB will complete its five-year tenure in the last week of June, 2020, and next general elections in the GB will become due within 60 days.

"Non-adaptation of Election Act, 2017, and Election Rules, 2017, in Gilgit-Baltistan may delay the preparation of fresh computerized electoral rolls and election process of Gilgit-Baltistan Assembly," he told.

The petition filed by the federation states that there is no provision in Government of Gilgit-Baltistan Order, 2018, for appointment mechanism of caretaker government, which is against the spirit of transparency and also the Constitution of Pakistan.

Justice Umar Ata Bandial observed that this court had given guidelines in its judgment dated January 17, 2019 and directed to do legislation forthwith but one year and three months have passed but the government did nothing.

The apex court in that judgment had directed the federal government to promulgate proposed order pertaining to the status, authority and powers of the Gilgit-Baltistan (GB) including the judiciary and the rights available to its people forthwith or within fortnight. However, the PTI government on May 13, 2019 sought time to implement proposed order.

The chief justice said the directions given in the Supreme Court judgment are in the field. Justice Bandial noted that according to the federation petition's some consensus developed between the federal and the GB government, but there are some new demands of Gilgit-Baltistan.

He asked the attorney general to share those demands with the apex court.

He observed that Gilgit-Baltistan is very important territory and said since 1999 through Al-Jihad Trust judgment the Supreme Court has asserted to protect the rights of people of Gilgit-Baltistan.

He questioned why the Supreme Court is involved when the demands have not been shared with it, adding the SC will be involved if there will be issue of GB people's rights. He asked the attorney general to take the Supreme Court in confidence.

The chief justice said that in Al-Jihad Trust judgment the people of GB are declared citizens of Pakistan and now they have Pakistani CNICs and passports, and there is no restriction on their movement.

He questioned why not the people of GB have similar rights under the Constitution. Justice Ijaz said that independence of judiciary, fundamental rights and civil rights could be replicated in the GB.

He asked what prevents the federal government to take decision in this regard. He said the power of issuance of a Presidential Order was available to the government in the past and now as well, so why it can't be done [President Order] with the approval of the apex court.

According to the SC January 2019 judgment, no amendment shall be made to the order so promulgated except in terms of the procedure provided in Article 124 of the same, nor shall it be repealed or substituted, without the instrument amending, repealing or substituting (as the case may be) the same being placed before this court by the federation through an application that will be treated as a petition under Article 184(3) of the Constitution.

The AGP requested that till the promulgation of proposed reforms in Gilgit-Baltistan, the federal government may be allowed to make necessary amendments in the GB Order, 2018.

He informed that different options for meeting the desires of Gilgit-Baltistan people are being carefully examined and discussed with all the stakeholders and that requires deliberation at greater length.

The bench considering the petition issued notice to the GB government and the advocate general and adjourned the case until tomorrow (April 30th).

It noted that in 1999 in Al-Jehad Trust (1999 SCMR 1379) apex court had directed the federal government to extend fundamental freedoms to the Northern Areas (now Gilgit-Baltistan) within six months.

The Al-Jihad judgment had declared that Pakistan exercised both de facto and de jure administrative control over the Northern Areas.

It ruled that the people of the region were "citizens of Pakistan for all intents and purposes...and could invoke constitutionally guaranteed fundamental rights."

It also emphasized that the people of the Northern Areas were "entitled to participate in the governance of their area and to have an independent judiciary to enforce...fundamental rights."