SUPREME COURT ORDERS NEW DRAFT GILGIT-BALTISTAN GOVERNANCE ORDER PROMULGATION
Friday, 18 January 2019
The Supreme Court accorded approval to a freshly proposed presidential order enshrining framework for governance of Gilgit-Baltistan, directing immediate promulgation of the order. In a landmark judgment announced in the open court, the SC asked the president to promulgate the order on the advice of the federal government in any case within a fortnight.
“No amendment shall be made to the Order as so promulgated except in terms of the procedure provided in Article 124 of the same, nor shall it be repealed or substituted, without the instrument amending, repealing or substituting (as the case may be) the same being placed before this Court by the Federation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. Nothing in this judgment shall be construed to limit the jurisdiction conferred on this Court by the Proposed Order itself; and Const.P. No.50/2018 etc. -: 29 :- iii. If the Order so promulgated is repealed or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution,” reads the order.
A seven-judge larger bench headed by Chief Justice Mian Saqib Nisar had on Jan 7 reserved its judgment on a set of petitions challenging the Gilgit-Baltistan Order, 2018 and the Gilgit-Baltistan Empowerment and Self Governance Order, 2009, besides raising several issues linked with governance in GB and powers of courts in the region.
Apex court asks president to promulgate order in a fortnight
The federal government had constituted a committee, shepherded by the attorney general, to review the entire matter and place before the apex court the draft of a fresh order for the governance of GB.
“In our view, that draft, as modified …… does provide a suitable framework in the hue of constitutional nature for the governance of GB,” the verdict says.
The order, while dealing with the question of jurisdiction, points out that Article 187 of the Constitution confers a special jurisdiction on the apex court.
“As the text of Article 184(3) supra indicates”, this court can give “such directions to any person or authority including any Government… as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II” of the Constitution. It is now well settled that this constitutional power, within the scope of the grant, is not just plenary; it is also dynamic and flexible.
“Keeping these provisions in mind, and the special nature of the issue before us — the settling of a framework, of a constitutional nature, for the governance of GB — we are of the view that our jurisdiction extends to the giving of suitable directions to the Federation, both to promulgate the Proposed Order and also for ensuring its continuity. It is only in this way that fundamental rights can be granted to the people of GB in the meaningful and realistic manner envisaged by this Court in the case of Al-Jehad Trust”, reads the judgement.
The order also says it was a matter of some concern that although the apex court had articulated the basic position with regard to the status and rights of the people of GB in Al-Jehad Trust case two decades ago, the actual realisation by the executive of that expression has remained fitful at best.
“This is not acceptable. This Court has not hesitated in the past to give legal recognition to the aspirations of people who have unhesitatingly, enthusiastically (and, if we may put it like that, joyously) cast their lot with Pakistan right from the beginning. We do not hesitate now to take the matter further. Therefore, we do not just provide judicial imprimatur to the proposed framework: we also give it permanence, so that the people of GB have unassailable confidence that their rights, and the enjoyment thereof, is not subject to the whims and caprice of every passing majority, but are firmly grounded in the Constitution itself. And let it be clearly understood: we will not hesitate in future, should the need and occasion arise, to take, within our constitutional mandate, all such steps as may be required, it reads.
The verdict says that the human rights jurisprudence of this court has served, and will continue to serve, as the sheet-anchor of the liberties and rights of all the people. “Those of Gilgit-Baltistan are no exception,” it reads.