ON his last day in office, Supreme Court chief justice Saqib Nisar ruled on two fundamental issues ie constitutional rights and the governance structure for the people of Gilgit-Baltistan. Of late, the people of GB have been vociferous in their demand for the integration of Gilgit-Baltistan as a province of Pakistan. Their demand is based on the original offer of unconditional accession to Pakistan after the liberation of the region as a result of an armed revolt led by the locals against the occupiers of Jammu & Kashmir. This offer was never accepted by Pakistan which oddly continued to consider it a disputed area.
The GB residents believe in seeking their rights through legal channels. Responding to a petition, the Supreme Court of Pakistan in 1999 had asserted that the people of GB are “citizens of Pakistan for all intents and purposes” and could “invoke constitutionally guaranteed fundamental rights”, while also emphasising that they were “entitled to participate in the governance of the area and to have an independent judiciary to enforce fundamental rights”. In its recent verdict while reinforcing this judgement, the Supreme Court has cast a glance at subsequent developments where implementation is concerned.
In the past, the most important change was the promulgation of the Gilgit-Baltistan Empowerment and Self-Governance Order, 2009, giving GB a semblance of a province which also renewed the demand for one. Under great political pressure, the PML-N government established a committee under Mr Sartaj Aziz, adviser on foreign affairs in 2015. This committee after consulting all the stakeholders submitted a comprehensive report in 2017, proposing a provisional provincial status for the region.
The people of Gilgit-Baltistan can now approach the Supreme Court for their fundamental rights directly.
In view of Pakistan’s official stance on Kashmir to which issue the conundrum of the status of GB has been artificially yoked, this report also considered the repercussions of granting provisional provincial status as this was a key concern of the Supreme Court.
The court observed: “It is within this light that we have reflected upon the recommendations of the committee with great care. We also recognise that some of the recommendations may require Acts of Parliament and even amendments to the Constitution. At the same time, we have also been comforted by the fact that the committee itself was acutely aware of the sensitivities of the issue before it, and provided its recommendations only after considering their implications, if any, on the status of the Kashmir dispute.”
Satisfied, the court concluded that “it is clear that granting full rights to them does not in any way prejudice the eventual determination of the status of Jammu and Kashmir. A state of vacuum cannot be created for the people of GB. They, after all, are as entitled to all the fundamental rights as are enjoyed by others. Therefore, there can be no prejudice to Pakistan’s position on the plebiscite issue if the men, women and children living in GB are guaranteed basic human rights and a role in their own governance within a framework of a constitutional nature”.
The Supreme Court added that “these rights for GB residents would include the right to representation as well as all other rights enjoyed by the citizens of Pakistan”. These conclusions by the court unequivocally and specifically address two major aspects of fundamental rights and the right to be represented at all institutions/forums where decisions are taken in the name of the people of GB. It is an all-encompassing direction and essentially grants rights to GB residents to be represented not only in local assembly but also in the Pakistani parliament and other institutional governance forums of the federation.
In order to address the new governance arrangement, the Supreme Court of Pakistan considered a draft prepared by the attorney general and directed its promulgation with a few changes. It was provided that no amendment to the draft order Gilgit-Baltistan Governance Reforms 2019 would be made except in accordance with the procedure laid down in Article 124 of the draft. For any amendment, the federation would be required to file an application before the Supreme Court to be treated as a constitutional petition under Article 184(3) of the Constitution. It was directed that if the order so promulgated was repealed or substituted by an Act of Parliament, the validity thereof, if challenged, would be examined on the touchstone of the Constitution.
The judgement of the Supreme Court has thus assumed the responsibility of legislation for future arrangements and has also delineated the broad parameters for further amendments. The people of GB can now approach the Supreme Court for their fundamental constitutional rights directly. A defining moment and challenge for elected members of the GB Assembly and political parties is to ensure that the government of Pakistan does not deviate in granting fundamental constitutional rights to GB in line with the Constitution of Pakistan.
The Supreme Court has endorsed the draft, that in its preamble commits to strive for a provisional province for the area. The granting of provisional status of province thus stands settled, and is subject only to a constitutional amendment. Political pressure will be necessary to persuade the federation and other political parties in parliament to introduce a bill for such amendments to secure this goal.
This judgement not only stands as a milestone in the long and hard legal battle ahead but also serves to provide an enabling environment for the materialisation of the constitutional rights of GB residents. It opens up the window of opportunity for GB residents to advance demands for modification of any provisions in the governance structure contradicting the benchmarks on which the Constitution of Pakistan is based.
The transaction of offer for unconditional integration into Pakistan is still unfulfilled as it has yet to be accepted. Here is an opportunity for the state of Pakistan to accept it and to complete the transaction, acquiring provisional de jure right to control this region, removing the constitutional vacuum and creating the essential legal linkage that is absolutely vital for mega-development projects including CPEC to thrive in the region.
The writer, a former IGP Sindh, belongs to Gilgit-Baltistan.
Published originally in Dawn, February 2nd, 2019