MIAN SAQIB NISAR, C.J. Succinctly , the instant matters pertain to a very important historical and Constitutional issue involving the status, authority and powers of Gilgit-Baltistan (GB) including the judiciary and the rights available to its people. Although similar issues emanate from the various Constitution petitions filed before this Court, it would be pertinent to briefly discuss the factual background of each case before proceeding further:---
(i) In Constitution Petition No, 63/201 1, the petitioner who is a political and social activist, seeks the enforcement of the independence of the judiciary in GB and thus challenges the vires of the Gilgit-Baltistan Empowerment and Self-Governance Order , 2009 (2009 Order) (and the Gilgit Bahistan Order 2018 (2018 Order) by amendment of the petition through a C.M.A.) in light of Articles 175 and 203 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution);
(ii) In Constitution Petition No, 6/2012, the GB Chief Court Bar Association claims that the 2009 Order did not make sufficient provisions for the appointment of Judges to the GB Supreme Appellate Court and this oversight threatens the establishment of an independent judiciary in GB and thus the vires of the relevant provisions [Articles 60(5), (6) and (8) of the 2009 Order] have been challenged.
(iii) In Constitution Petitions No, 16 and 20/2015, the petitioner , GB Bar Council (in both the petitions) seeks appropriate directions to the respondents to arrange for issuance of an order contemplated by Article 258 of the Constitution read with Article 1 (2)(d) thereof, to provide for good governance for GB in compliance with the direction already issued by this Court paragraph No, 28 of the judgment reported as Al-Jehad Trust through Habibul Wahub Al-Khairi. Advocate and 9 others v. Federation of Pakistan through Secretary , Ministry of kashmir Affairs,. Islamabad and 3 others ( 1999 SCMR 1379 ) to enforce fundamental rights:
(iv) In Constitution Petitions No, 30, 31, 32 and 36/2015 the petitioner challenged the appointments of the Chief Election Commissioner GB, Governor of GB and the Chief Minister of GB made under the 2009 Order and sought a declaration to the effect that the said Order was ultra vires and the fundamental rights extended to the people of GB be enforced;
(v) Petitioners No, 1 and 2 in Constitutional Petition No, 64/2015 are faculty mem bers of various medical colleges and petitioners No, 1, 3 and 4 are also members of the Pakistan Medical and Dental Council (PMDC). Through the instant petition they claim that Section 2 of the PMDC (Amendment) Ordinance, 2015 on account of being discriminatory to the people of Azad Jammu and Kashmir and GB be declared ultra vires of Article 25 of the Constitution, fresh elections be announced for members of council of PMDC and Regulation No, 9(2) of the PMDC Regulations, 2015 be declared unreasonable, arbitrary and of no legal ef fect;
(vi) In Constitutional Petition No, 2/2016 the judgments against the Federal Board of Intermediate & Secondary Education by the lower fora were upheld by the GB Supreme Appellate Court. Through the instant petition, the impugned judgment was sought to be declared as beyond the jurisdiction of the said Court and the declaration that no civil proceedings may be initiated against it in the territory of GB and any such proceedings should have no legal effect;
(vii) In Constitutional Petition No, 3/2016, the petitioner Shaheen Airline Limited was issued directions in Suo Motu Case No, 2/2009 by the Supreme Appellate Court to operate flights to Gilgit Baltistan despite it not being commercially feasible for the petitioner . Through this petition, the petitioner seeks that the said Suo Motu proceedings and all the orders issued therein be declared unconstitutional, ultra vires of the Constitution and void ab initio;
(viii) In Constitutional Petition No, 13/20 16, the petitioner , inter alia, seeks the implementation of the judgm ent passed in Al-Jehad Trust's case (supra) as well as the declaration that the 2009 Order is ultra vires of the Constitution and has no legal value unless the Constitution is amended;
(ix) In Constitutional Petition No, 34/2016, the Pakistan Agriculture Research Council seeks 'reversal of the transfer of 24 kanals and 3 marlas to Pakistan State Oil under the mistaken belief that the said land was owned by the Government of GB whereas according to the petitioner the said land was owned by the Government of Pakistan and could not be unilaterally so transferred. The said matter was sub judice when it was taken up in Suo Motu proceedings by the GB Supreme Appellate Court in S.M.C. No, 8 of 2016 and directions have been issued to facilitate said transfer . The petitioner seeks, inter alia, that the jurisdiction of the said Court be outlined in light of the Constitution of Pakistan and the said transfer of land be declared void and without lawful authority .
(x) In Constitutional Petition No, 3/2016, the petitioner , inter cilia, seeks implementation of the Al-Jehad Trust's case (supra) as well as the declaration that Order 2009 is ultra vires of the Constitution and has no legal value unless the Constitution is amended and therefore should be declared ultra vires;
(xi) In Constitutional Petition No, 6/2017, there was a. dispute regarding shamlat land measuring 30. kanals in Satpara Lake which the Pakistan Tourism and Development Corporation (PTDC) wanted to acquire. vide impugned order dated 19.11.2015 in S.M.C. No, 3/2009. this Court issued directions to PTDC to bring its work at the Satpara Lake in conformity with the environmental standards it laid out which direction s the PTDC states that it has complied with. Subsequently , through Suo Motu Case No, 2/2016, the Gl Supreme Appellate Court passed a series of adverse orders against PTDC. The petitioner seeks, inter alia, that the proceedings be declared illegal, unconstitutional and coram non judice and be quashed.
(xii) In Constitutional Petition No, 30/2017, the Federal Board of Revenue, Islamabad, Pakistan (petitioner) seeks a declaration by this Court that the GB Supreme. Appellate Court exceeded its jurisdiction when in Suo Motu Case No, 11/2010 it passed orders issuing notices and orders to and against the petitioner , declaring the same to be unconstitutional, coram non judice and consequently quash the same;
(xiii) In Constitutional Petition No, 61/2017, the petitioner is a representative body of Hotels and Restaurants in GB. which seeks the implementation of the Al-Jehad Trust case (supra) which, inter alia, provides for the right of access to justice and independence of judiciary to the people of GB. Thus directions are sought 'froth this Court to implement the same in letter and spirit:.
(xiv) In Constitutional Petition No, 49/2018. the Supreme Appellate Court of GB 'after taking cognizance of the matter vide judgment dated 13.7.2018 set aside the 2018 Order . The Federation of Pakistan through the instant petition seeks that the said judgment be set aside and such action of the said Court be declared unconstitutional and beyond its jurisdiction;
(xv) In Constitutional Petition No, 51/2018 , the petitioner seeks the quashment of the impugned judgment wherein the GB Supreme Appellate Court declared the by-election held in petitioner's constituency to be void, illegal- and without any legal authority ,. thus it was set aside seeking -inter alia that: (1) the -GB Supreme Appellate Court exceeded its jurisdiction by taking Suo Motu notice under Article 61 read with Article 95 of the 2009 Order; (2) Suo Motu notice was taken of a fact not pleaded in the /is; (3) the impugned judgment is per incuriam, for having been rendered in derogation of the express words used in Article 61 of the 2009 Order:
(xvi) In Constitutional Petition No, 55/201 8. the petitioner , GB Bar Council. inter alia, seek that the 2018 Order .be declared illegal. void ab initio and without legal authority:
(xvii) In Constitutional Petition No 50/2018 the Petitioners, Civil Aviation Authority seek that the declaration that the jurisdiction of the Chief Court in terms of-Article 71 of the 2009 Order is only to the extent of the Government of GB therefore the latter does not have the jurisdiction to issue writs/directions to the former; (xviii) In Constitutional Petition No 18/2018 the Petitioner is a citizen of Pakistan after remaining in the permanent and pensionable Service of the Armed Forces Medical College Rawalpindi. This is mainly a service dispute and the petitioner seeks implementation of the judgment of the Federal Service Tribunal against the Principal Public School & College, Jutial Gilgit. The petitioner seeks quashment of the judgment passed in Writ Petition No, 108/2017 filed by the respondents to be declared without lawful authority , coram non judice and not maintainable; and
(xix) In Constitutional Petition No, 41/2018 , the Federation of Pakistan through Secretary Ministry of Kashmir Affairs and Gilgit Baltistan Islamabad seeks quashment of the impugned judgment wherein the GB Supreme Appellate Court vide order dated 20.06.2018 stayed the operation of the 2018 Order and its implementation process was suspended till the decision of the Suo Motu taken by the said Court.
2. The following common but key questions stem from the foregoing factual background:--
(i) Would granting fundamental rights and a status, role and recognition to the people of GB within the Constitutional scheme of Pakistan prejudice Pakistan's cause for the resolution of the Kashmir dispute by such appropriate means as may be acceptable to Pakistan (which could, for example. be a United Nations sanctioned and supervised plebiscite)?
(ii) What rights can be granted to the people of GB?
(iii) Is the GB Supreme Appellate Court a Constitutional Court?
To answer the foregoing questions, it is pertinent to examine some of the comm itments made to the people of Jammu and Kashmir . Their importance is enhanced by some special provisions in the Constitutions of both Pakistan and India. These Constitutional provisions are not only a continuing reminder of those commitments but especially from Pakistan's side most definitely and certainly reiterate its commitment to a peaceful resolution of the Kashmir dispute in accordance with International Law and the aspirations of the people of Kashmir .
3. The Kashmir issue, starting as it did in the dying days of the British Raj and erupting and escalating into a dispute (and indeed armed conflict) shortly thereafter , became one of Partition's defining moments. A process that could have produced two empowered independent countries--countries with a shared history and hopes of a productive and cooperative future--inste ad embroiled Pakistan in strife that it did not want and was not of its making. The origins of the dispute lay in the contrived (some might even say coerced) accession of Kashmir to India by the Hindu ruler of a Muslim majority state, which was contrary to the expectations of the population and to the basis, professed to be preferred by the British for accession by Princely States . The resultant heroic uprising . and resistance by the majority was but inevitable. Subsequent United Nations (UN) intervention recommended, and Pakistan and India accepted, a de-escala tory approach leading up to calls for a plebiscite to determine the wishes of the people of the region. Successive Security Council Resolutions asked the UN to facilitate a free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan.
4. What does require clarification is that the commitment to a plebiscite was, at least ostensibly , echoed also from .Indian side. perhaps in an attempt to calm the uproar around the obvious injustice of Maharaja Hari Singh"s alleged declaration of accession to India. Thus, the then Prime Minister of India. Pandit Jawaharlal Nehru unambiguously committed himself to the plebiscite arrangement. His telegrams to the Prime Ministers of Pakistan and the United Kingdom (UK) sought to create the impression that any. Indian recognition of the Maharaja's accession to India was only provisional and that the question of the future of Jamm u and Kashmir (i,e,, whether as port of Pakistan or India) would be determined by its own people after the restoration of law and order . What, after all, could (at least facially) be more unambiguous than Mr: Nehru's telegram to the British Prime Minister , Clement Attlee where, in paragraph No, 3, he committed that "I would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of people and we adhere to this view. [Emphasis supplied]. This commitment of the Prime Minister of India was repeated and forwarded by the Prime Minister of Britain to the Prime Minister of Pakistan on 27th October , 1947 by stating that. He adds that he would like to make it clear that the question of aiding Kashmir in this emergency is not designed in arty way to influence the State to accede to India."
5. Mr. Nehru continued his protestations of supporting the right of the Kashmiri people to so decide their future in direct communications with Pakistan's leaders. Thus in his telegram of 28th October, 1947 to Mr. Liaquat Ali Khan; Mr. Nehru reiterated that:--.- "In regard to accession also it has been made clear that .this is subject to reference to people of Stale and their decision. The Government of India have no desire to impose any decision and abide by people's wishes."
Similarly in his telegram of 31st October , 1947 to the Prime Minister of Pakistan, the Prime Minister of India re- asserted as follows:-- Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of this State to people of the -State is not merely a pledge to your Government but also to the people of Kashmir and to the world-"
Mr. Nehru's claims of sincerity in empowering the people of Kashmir to-so decide their future continued unabated.
In his telegram of 4th November , 1947 to the Prime Minister of Pakistan, Mr . Nehru declared, yet again that:-- "I wish to draw your attention to broadcas t on Kashmir which I made last evening -I have staled. our Government's policy and made it clear that we have 110 desire to impose our will on Kashmir but to leave final decision to people of Kashmir . I further stated that we have agreed an impartial international agency like United Nations supervising any referendum. This principle we are prepared to apply to any state where there is a dispute about accession."
Mr. Nehru's claims of fealty to the rights to the Kashmiris were echoed by his government's representatives. The Indian representative to the UN, Mr. Gopalaswami Ayyangar , made a policy statement in the UN Security Council on 15th January, 1948 where he claimed that India desired "only to see peace restored in Kashmir and to ensure that the people of Kashmir are left free to decide in an orderly and peaceful manner the future of their State. We have no further interest, and we have agreed that a plebiscite in Kashmir might take place under international auspices after peace and order have been established."
6. It was on the basis of such assurances that the UN Security Council passed resolutions on 17th and 20th January . 1948 establishing the UN Commission for India and Pakistan (UNCIP). The UNCIP was directed to investigate the facts and to report its advice. On 6th February , 1948, the Security Council made an appeal to both parties to agree on a just settlement of the Kashmir problem. to put an end to violence and hostilities and to withdraw all regular and irregular forces who had entered the State, from outside. These resolutions were supplemented by a comprehensive resolution passed on 21st April, 1948 and the UNCIP's resolutions of 13th1 2 3 4 5 August, 1948 and 5th January , 1949. Truce was declared on 1st January', 1949. However , rather than adopting the process of demilitarization as envisaged in the aforesaid resolutions India has made the area that it holds in Kashmir as one of the most militarized areas in the world.
7. We have taken the liberty of citing at length from the statements of the Indian leadership because it is important to understand that the concept of the international nature of the Kashmir dispute was not a demand put forth merely by Pakistan. To the contrary , the repeated statements of Mr. Nehru make clear that the right of self- determination of the. Kashmiri people was a right acknowledged, promoted and committed to by the Government of India as well as the Government of Pakistan and embraced and sanctified by the international community through the UN.
8. Commitments of this nature ought to be inviolable. Pakistan has certainly not resiled from its commitments-- whether to the people of Kashmir or the international community . However , and this is a sad but hard reality , despite the passage of seven decades the promised plebiscite has yet to be held and the territory of Kashmir continues to remain divided--Jammu and Kashmir under the Indian Constitution, increasingly subsumed into India (hereinafter referred to as "Indian Occupied Kashmir" or "10K") on the one hand, and the State of Azad Jammu, and Kashmir (hereinafter referred to as "AJK") and the territory of GB on the other .
9. Over the decades the trajectories of the divided region have diverged. The part under Pakistan'. administrative control GB)---subject to the writ of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution)-- and that aligned with Pakistan (i,e,, AJK) have progressed (though perhaps not us swiftly or as much as Pakistanis would have desired) and remained large ly at peace, while the portion of Kashmir under Indian control has been convulsed with resistance and rebellion--expressions of popular sentiment that have been met with ever worsening repression and suppression.
10. The situation at present in IOK is dire. To reach such conclusion we need not turn to any official document or statement from Pakistan. Reliance can be placed upon the most recent report of the Office of the UN High Commissioner for Human Rights (OHCHR) issued in the summer of 2018 which pulls no punches and is damning.
It notes widespread allegations of "human rights violations [that] include torture and custodial deaths. rape, enforced disappearances _and extrajudicial killings." With some 500.000 to 700.000 troops in the territory; the OHCHR report noted that "Milian Kashmir" is "one of the most militarized zones in the world.- "impunity for human rights violations and a lack of access to justice" are just a few of the human rights challenges in 10K. This impunity is sanctioned and promoted by such draconian laws as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSP A) that grants broad powers to the security forces and effectively bestows immunity from prosecution in civilian Courts for their conduct by requiring the Central- government to sanction all prospective prosecutions' prior to being launched. Asper the OHCHR, the law "gives virtual immunity against prosecution for any human rights violation. in the nearly ?8 year' that the law has been in force in Jammu and Kashmir , there has not been a single prosecution of armed forces personnel granted by the central government." The provisions of AFSP A fly in the face of the most basic international norms and conk entions. For example, Section 4 thereof allows any .personnel operating under the law to use lethal force not only in cases of self defence but also against any person contravening laws or orders "prohibiting the assembly of five or more persons." The use of pellet guns is regarded as directly responsible for the blinding, and thus incapacitation, of hundreds of Kashmiri youth. Others have been bound, in some of the most bizarre sights of the modern era, in front of military vehicles, self-evidently as so-called "human shields" against stones lobbed by unarmed youth facing the terrible might of one of the world's largest and most well-equipped armies.
11. In contrast, circumstances on the Pakistan side of the Line of Control are markedly better . Tellingly ., the OHCHR Report devotes most of itself to the situation in indian-held Kashmir . There is of course an obvious and understandable reason for this. In all of the seven decades since Independence even when Pakistan itself was caught in, and convulsed by, turmoil of the most tragic nature, there was always an obvious and popular acceptance of, and for, Pakistan by the people, both in AJK and GB. On the Indian side however state sanctioned violence seems to go on and on.
12. As acknowledged by the OHCHR Report, AJK is neither a police state, nor are military laws or rules in place.
Basic rights are available to the population and most elements of due process exist. Relative to 10K, the region is empowered, peaceful and prosperous. But a relative improvement as compared with the dire situation across the border is not the standard that Pakistan should ever be satisfied with. Nor is this Court prepared to tolerate or condone any violation of human rights on this side of the prevailing divide even though those breaches involve no violence as reported from the other side. We should seek to hold ourselves to the highest standards of conduct in relation to the territories for which Pakistan bears responsibility . In this context, there is always more work to be done.
13. As noted, Pakistan has responsibilities in /elation to two regions: AJK and GB. In 1948, UNCIP recognized the existence of local authorities (as distinct from the Government of Pakistan) for the territories. We are of course here concerned with GB alone. The region has not been incorporated into Pakistan as it is considered to be a part of the disputed State of Jammu and Kashmir . However , it has always remained completely under Pakistan's administrative control.
14. For the governance of the region, a series of administrative structures and laws have been applied to GB since 1947. These have included the following (upto 1999):-- YearLegal instrument Description 1947 Frontier Crimes Regulations
(FCR) implementedFirst law to, be enforced was a continuation of the colonial law of FCR. Under this British law for the tribal areas and GB, a civil bureaucracy exercised all judicial and administrative power .
1949 Karachi Agreement On 28 April, 1949, of ficials of the Pakistan Government met with those of the AJK Government to ink the Karachi Agreement. Under this accord, it was agreed that the af fairs of Gilgit would be run by the Pakistan Government. It appears that no leader from Gilgit was included in this agreement.
1950 Ministry of Kashmir Affairs and Northern Areas createdAffairs of Northern Areas handed over to the Ministry of Kashmir Affairs and Northern Areas (KANA). Joint Secretary of the Ministry of Kashmir Affairs has been performing duties of Resident in the Northern Areas with all administrative and judicial authority since 1952.
1952 Political Resident appointed Joint Secretary of the Ministry of Kashmir Affairs who headed the local administration and judiciary; was responsible for enforcement of the FCR and was also the financial and revenue commissioner . The Resident also exercised legislative powers in the Northern Areas in consultation with the Federal Government.
1967 Political Agents appointed KANA transferred powers of the High Court and Revenue Commissioner to the Resident and appointed two Political Agents, one each for Gilgit and Baltistan.
1970 Advisory Council for Northern Areas Council Constitutional OrderBetween Pakistan and the Azad Kashmir Government. 21 elected and non-elected members headed by the then Resident for GB as Chairman under KANA Division O.M. No, NA-1(6)/70, datedth 6 7 8 9 18th November , 1970. 16 members of Northern Areas Advisory Council (NAAC) were elected in 1970.
1975 Northern Areas Council Legal Framework Order 1975Major administrative, judicial and political reforms were introduced.The jagirdari nizam was abolished.
GB was transformed into districts like those in Pakistan. The FCR was abolished, and the civil and criminal law was extended to the Northern Areas.
The Advisory Council for Northern Areas was replaced by Northern Areas Council (NAC).
1994 Northern Areas Council Legal Framework Order
(LFO) of 1994Administrative instrument devised by KANA, supplemented by the Northern Areas Rules of Business (NARoB) (also of 1994) serving as a sort of basic law but with only limited advisory functions devolved on the council.
1999 Al-Jehad Trust judgment (1999 SCMR 1379)This Court declared it could not prescribe a form of government for the region, nor could it direct that the region be represented in the Parliament since that could undermine Pakistan's stand on Kashmir . It left such issues to the Federal Government and the Parliament. However , it directed the Government to take "proper administrative and legislative steps" to ensure that the people of the Northern Areas enjoyed their rights under Pakistan's Constitution .
1999 Northern Areas Council Legal Framework Amendment) Order , 1999The Northern Areas Council was renamed as the Northern Areas Legislative Council (NALC) which was given the powers to legislate on 49 subjects. The post of Speaker and three women seats were also created.
15. As of today , the situation ultimately to emerge both for AJK and GB, as also of course for the rest of the erstwhile State, is enshrined in the aspiration expressed in Article 257 of the Constitution, which provides that "When the people of the State of Jamm u and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State."
16. Be that as it may, in 1999, this Court in the seminal judgment reported as Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secre tary, Ministry of Kashmir Affairs, Islamabad and 3 others (1999 SCMR 1379 ) directed the Pakistan Government to extend fundamental freedoms to the Northern Areas (now of course referred to as GB) within six months. The judgment declared that Pakistan exercised both de facto and de jure administrative control over the Northern Areas. This Court ruled that the people of the region were "citizens of Pakistan for all intents and purposes...and could invoke constitutionally guaranteed fundamental rights ." (at page 1393) The ruling 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."
(at page 1396).
17. This Court has thus been sensitive for a long time to the fundamental rights of the people of GB. At the same time it was recognized that in the prevailing circumstances the Northern Areas' Legislative Council could not simply be equated with a Provincial Governme nt. The problem clearly required a resolution. However , there was no immediate follow-up to the judgment passed in the Al-Jehad Trust case (supra) as the Executive procrastinated.
But after the lapse of a decade, the Federal Government promulgated the 2009 Order which, it argued, would establish a system of full internal governance in GB. The 2009 Order was a step towards the empowerment-of the10 11 12 13 14 people of GB, but was not a complete solution. Thus, the Human Rights Commission of Pakistan (HRCP) emphasized, in a 2016 report based on a fact-finding mission, that the 2009 Order 'falls short of providing a democratic system in which the people of Gilgit-Baltistan could enjoy the rights available to other Pakistan citizens."
Other deficiencies noted in the report included, in part, that it (the 2009 Order) did not guarantee the right to protection against double punishment nor a right to information and the right to education. According to the report, discrimination on the basis of sex was not prohibited nor was the State obliged to take affirmative action in favour of women and children. This situation appears to be most unsatisfactory to this Court. Even though some rights are indeed available in GB, albeit under laws such as the Pakistan Penal Code and the Code of Criminal Procedure, 1898 (CrPC), and are given effect by the respective Courts, these are not protected under any overarching framework of a Constitutional nature. This therefore remains unsatisfactory . Perhaps unsurprisingly , the 2009 Order failed to fully address the aspirations of the people of GB for full empowerment and representation. Reflecting this discontent, the GB Legislative Assembly passed a unanimous resolution in August 2015 demanding that the region be included in Pakistan as a Constitutional Province with representation in Parliament. The desire of the people of GB to participate fully in the national life of Pakistan is palpable. The HRCP mission had noted that "a large number of people living in Gilgit-Baltistan aspire to have full rights, as citizens of Pakistan. They argue that whenever it suits the Federal Government they are viewed as Pakistanis but when they ask for equal rights they are reminded of their controversial Constitutional status." [Emphasis supplied]
18. The division of Kashmir has dragged on for more than seven decades. Given continued Indian policy to deny a plebiscite, it is possible that it may persist for a considerable further period. Under these circumstances, it is surely a denial of fundamental rights to have the people of GB linger on in legal limbo--deprived of rights simply because they await a future event that may not practically occur within their individual lifetimes. Quite obviously , the question of fundamental rights cannot be addressed in isolation. Such rights do not hang in the air. In order to have meaningful life and force, they must be embedded in (thereby drawing support and sustenance from, and in turn, fertilizing and enhancing) a properly articulated system of governance of a Constitutional nature. These two-- fundamental rights and a system of governance--of necessity go hand in hand. The former without the latter is not possible and only desirable, and the latter without the former , though possible, is not desirable. To attempt to put in place one but not the other would be a lopsided exercise, lacking the proper balance that must exist. Fortunately , a path forward is already available in the recommendations of the Committee on Constitutional and Administrative Reforms in GB (Committee) constituted by the Prime Minster in 2015, The Committee, which submitted its report in March 2017. was tasked with reviewing the Constitutional and administrative arrangements in GB and recommending reforms, as well as reviewing the existing internal arrangements of the region. The Committee was led by the veteran civil servant and former Foreign Minister Mr. Sartaj Aziz. The report of the Committee concluded that further reforms were required to enhance the sense of participation of the people of GB and to upgrade the standard. of governance and public service delivery . At the same time; the Committee noted that the reforms proposed should not prejudice Pakistan's principled position in the context of UN resolutions on Kashmir .
19. We are in agreement with the conclus ions of the Committee on both the above -noted counts: (i) that there is a need for further substantive reforms to enhance the participation of GB's citizenry in governance; and .(ii) that in no way and at no point should the proposed reforms prejudice Pakistan's principled position regarding the status of Kashmir . Indeed, the latter point is of crucial importance and must guide and inform any and all recommendations regarding reforms in GB. It is within the context of the above framework that we must examine the recommendations of the Committee. The Committee recommended, in part, that:--
(i) be accorded a "provisional" and special status of a Province pending final settlement of the Jammu and Kashmir dispute;
(ii) The region- be given representation in the National Assembly and the Senate of Pakistan through amendments to Articles 51 and 57 of the Constitution, rather than an amendment to Article 1 thereof;
(iii) All legislative subjects other than those enumerated in Article 142 of the Constitution and its Fourth Schedule be assigned to the GB Assembly;
(iv) GB be given representation in all Constitutional bodies; and
(v) A robust local bodies system be introduced.
The Committee also suggested broad reforms in other key areas including infrastructure development, socio- economic uplift and the civil service.
20. We are cognizant of the fact that nothing this Court recommends or orders should affect the nature and status of the Kashmir issue. It is within this light that we have reflected upon the recommendations of the Committee with great care. We also recognize 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/heir implications, if any, on the status of the Kashmir dispute: It must be emphasized that all the above measures must be predicated by the caveat that these are subject to the result of the plebiscite, which is duly recognized in Article 257 already alluded to above. The Committee's recommend ations have been considered in the backdrop of Pakistan's international commitments and their Constitutional endorsement. As a responsible member of the comity of nations Pakistan remains aware of its obligations in such terms. As and when the promised plebiscite is organized by the parties to the dispute, it will be upto the people of all of Jammu and Kashmir , and of GB, to make their choice . Till then, it is surely incumbent upon both India as well as Pakistan to ensure that the people of this region enjoy maximum rights for areas within each country's control. Therefore, till such time that the plebiscite is held, a proper arrangement must be provided for by Pakistan for the people of GB for purposes of governance within a framework of a constitutional nature, including most importantly the enjoyment of fundamental rights.
21. This Court has already held in the case of Al-Jehad Trust (supra) that the people of GB are "citizens of Pakistan for all intents and purposes...and could invoke Constitutionally guara nteed fundamental rights" and emphasized that they were "entitled to participate in the governance of their area and to have an independent judiciary to enforce...Fundamental Rights." (at page 1393) This Court's observations in the noted case find expression in the Committee's report which distinguishes between the (yet to be finally resolved) status of GB, and the legitimate aspirations of the people of the region to participate in national life. 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. Indeed, full rights for the people of GB can only bolster Pakistan's case for the right of self-determination for all the people of Kashmir . Pakistan has the principled position that the people of Kashmir deserve to exercise all fundame ntal rights including the right of self-determination in terms of the plebiscite, the promise of which 'remains yet to be actuated.
22. Regrettably , this latter right is not solely within Pakistan's own prerogative to proffer. It is a right that can only be exercised with the participation of India and the international community through the UN. However , Pakistan does have the ability to itself empower the people of GB with all those fundamental rights that Pakistanis enjoy , without the involvement of India or the international community , and without prejudice to the right of self-determination through a plebiscite of all the people of Jammu and Kashmir . These rights lbr GB residents would include the right to representation as well as all other rights enjoyed by the citizens of Pakistan. In conferring these rights Pakistan is not only discharging its obligations to the people in the territory that it controls and administers, it is also making a loud and clear statemen t in favour of providing all rights to all the people of Kashmir . As such, its actions can only strengthen the case for self-determination of Kashmir in accordance with the commitment to ensure exercise of all fundamental rights. It may be mentioned clearly , and without any ambiguity , that the most fundamental and basic right, the right of self-determination is for all the people of Jammu and Kashmir , and it remains a matter of satisfaction that their right to choose through a plebiscite remains a solemn commitment. That is why we hold that the Committee's recommendations relating to the provision and enforcement of fundamental rights provided by the Constitution must be implemented immediately and with full force and effect. As a matter of law as well as morality , there should be no discrepancy in the fundamental rights available to those in GB relative to Pakistani citizens anywhere in the country . As for a framework for governance, of a constitutional and political nature, for GB we are of the view that the right to self-government through an empowered GB Assembly as well as a robust system of local bodies is entirely uncontroversial and must be enforced as early as possible.
23. We hold the above while yet again emphasizing our considered view that these changes do not in any way prejudice or affect Pakistan's principled stance on Kashmir . As such, these reforms are by definition provisional until the time when the people of Kashmir exercise their right of self-determination under the plebiscite. They have been deprived of this choice for far too long and at far too great a cost. Our judgment today merely states and upholds the obvious--that the parties to the Kashmir issue have an obligation to hasten the final resolution of this dispute and until that takes place, we must do everything in our power to minimize the suffering that this region has had to bear on account of its prolonged division.
24. Another question before this Court is whether the GB Supreme Appellate Court lacks the judicial power and jurisdiction to suspend, set aside or vary an Order promulgated by the President of Pakistan for the governance of GB, i,e,, the 2018 Order or any Order amending, substituting or replacing the same. Now, given the present status of GB, i,e,, as a region that is fully within the administrative control of Pakistan, and where Pakistan functionally exercises all aspects of sovereignty , it is clear that the Federation (i,e, Parliament and the Federal Government) is fully empowered to make arrangements for the governance of the region. This power extends to enacting and putting into place, whether on, the executive side by means of an Order promulgated by the President or on the legislative side by an Act of Parliament, a framework and system of governance that is of a Constitutional nature.
The 2018 Order was issued in exercise of these powers, and the Courts in GB were created under the same. The question now being considered can be put in more general terms: what would be the position (i,e,, status, powers and jurisdiction) of the judicial, legislative and executive organs established by an instrument of the nature of the 2018 Order? In accordance with well-established principles of law, the GB legislature would only have such powers as are conferred upon it by the Federatio n through the Proposed Order . The Courts created by such Order shall have the power to judicially review the laws enacted by such legislature. Of course, the organs created by the 2018 Order , and especially any legislative body , would be bound not merely by the Order, but also by the Constitution (under which the Order itself came into existence). For the present purposes, the more immediate point is that a Court created by the 2018 Order , such as the GB Supreme Appellate Court or the Chief Court, can examine whether the GB Assembly has exceeded the remit of its competence as conferred by the Order (when, e.g., enacting a law), and can declare it to be ultra vires the same. However , this jurisdiction is of necessity territorially bound. It can only apply and operate in relation to GB, and to things done or purported to be done under the 2018 Order . It cannot extend to any matter beyond or outside GB, or the vires or validity of the 2018 Order itself. The jurisdiction of a GB Court of the sort being considered in the present context is confined to the territory of GB.
Therefore, it may be concluded that the intention was to give the GB Supreme Appellate Court and the Chief Court the status of a "Constitutional" Court within the ambit of GB and the 2018 Order, but confining the scope to interpreting and implementing the said Order and conducting judicial review within the territory of GB in this regard.
It is thus a "Constitutional" Court inasmuch as it has the jurisdiction to strike down any law made by a GB legislature on the recognized concept of ultra vires. But it would not be in a position to question, in any manner and on any ground whatsoever , the very law that created it. This view is bolstered by the fact that an ouster clause has been inserted as Article 118 of the 2018 Order , whereby the GB Courts have been restrained from calling into question the validity of the 2018 Order . The said Article reads as under:-- "118. Order to override other laws, etc.--- (1) The provision of this Order shall have effect notwithstanding anything contained in the provisions of any law for the time ,being in force except that in case of conflict between the laws of Pakistan and the law framed under this Order , the laws of Pakistan shall prevail.
(2) No Court, including the Gilgit-Baltista n Supreme Appellate Court and the Gilgit-Baltistan High Court, shall call into question Or permit to be called into question, the validity of this Order ."
25. Therefore it may be concluded that the GB Court does not sit as a Court having the power of judicial review in respect of the territory of Pakistan, nor can it declare Orders made or legislation passed by the President or the Parliament as ultra vires, for can it initiate judicial review of departments working outside of GB. Instead, the 2018 Order can be challenged by, inter alia, the people of GB, but only before this Cour t, either under Article 1'84 of the Constitution or in the manner herein after provided.
26. We now turn to a question of importance, which is crucial for the success of the project of creating a framework of governance for GB of a Constitutional nature. Any framework of such a nature necessarily implies, 'and indeed it could be said demands, a degree of continuity in the manner provided in the Prop osed Order (hereinafter referred to). Otherwise, what good is it? Of what value are the fundamental rights enshrined in such a framework, and how independent can a judiciary created there by be, if the structure is impermanent, and even ephemeral? This is all the moreso where the framework is put in place in exercise of executive authority , by means of an Order promulgated by the President. Such an Order can be put in place, as it were, with a stroke of the pen, but likewise instantly cast into oblivion. Indeed, the manner in which the 2009 Order was replac ed by the 2018 Order is a telling illustration of the point now under consideration. During the course of the hearing of these petitions, and in light of the submissions by various learned couns el and the observations of the Court, the Federal Government constituted a committee shepherded by the learned Attorney General, to review the entire matter , and place before the Court a draft of a fresh Order for the governance of GB. This was duly done, and the draft so placed was examined by the Court in light of the submissions made before it. In our view, that draft, as modified in the manner hereinafter stated, does provide a suitable framewo rk in the hue of Constitutional nature for the governance of GB. The Federal Government stands committed to promulgating the same (hereinafter referred to as the "Proposed Order"), in substitution of the 2018 Order . However , the question of permanence remains. It is this point that must now be considered.
27. As noted above, the matters before us have been instituted under Article 184(3) of the Constitution. The jurisdiction thereby conferred upon this Court has been considered in a number of decisions, which have settled a well-known jurisprudence that requires no elaborate rehearsal. There is also Article 187 of the Constitution, which confers a special jurisdiction on this 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 11" 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. Indeed, if we may adapt (in a somewhat modified manner) for present purposes a famous metaphor used by the Privy Council in relation to the Canadian constitution, in granting fundamental rights the Constitution has planted a "living tree capable of growth and expansion ". Understandings of both the nature of fundamental rights, and what must be done to ensure their meaningful enjoyment in full, have developed and evolved over the decades and will undoubtedly continue to do so in times to come. Thus, to take but one example, the meaning of the right to life conferred by Article 9 of the Constitution has developed in a manner that would, perhaps, be breathtaking for previous generations. The categories and varieties of cases involving or raising issues of fundamental rights of public importance can never be closed. They are shaped by the human condition and the vagaries of the human experience, which by its very nature is limitless. This is not to say that the scope of the Constitutional power is, as a matter of law, boundless, but only to stress that any artificial straitjacketing, based on preconceived notions or whatever passes for orthodoxy or receive d wisdom in a particular age, is to be avoided. Now, precedent is too often perceived as a limitation. Certainly , at least in the common law tradition, it is a defining characteristic of judicial power . It should however , perhaps also be given greater recognition as a useful tool in the judicial arsenal. It must never be forgotten that while we are certainly tied to the past we are not shackled by it. And this is perhaps all the moreso when the jurisdiction is of the nature as conferred by Article 184(3) supra. To this must be added the power conferred on this Court under Article 187 supra, to "issue such directions, orders or decrees as may be necessary to do complete justice" in any pending case or matter . 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 funda mental 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 (supra). At the same time, as indeed was accepted on behalf of the Federation, the directions that we can give extend to making certain modifications in the Proposed Order , again in order to properly effectuate the objective sought to be achieved. It is in the foregoing terms that we have, indeed, made certain modifications to the Proposed Order , which have been incorporated therein, and have also for convenience been gathered in the appendix to this judgment.
28. Before concluding, we would like to make one last point. It is a matter of some concern that although this Court had articulated the basic position as regards the status and rights of the people of GB in the case of Al-Jehad Trust (supra) two decades ago, the actual realization by the Executive of that expres sion 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. 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.
29. Accordingly , we hereby direct and order as follows:--
(i) The Proposed Order , which (modified as noted above) is annexed to this judgment, shall be forthwith promulgated by the President on the advice of the Federal Government, and in any case within a fortnight hereof;
(ii) 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
(iii) If the Order so promulgated is repeale d or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution.
30. In light of the foregoing, the instant matters are disposed of accordingly , save those petitions in which a specific order or judgment, of either the GB Supreme Appellate Court or the Chief Court, has been challenged. Such petitions (being only Constitution Petitions No, 2/2016, 3/2016, 34/2016, 6/2017, 30/2017, 18/2018, 50/2018 and 51/2018) shall be deemed pending and be treated and disposed of as the leave petitions envisaged under Article 103 of the Proposed Order , when promulgated. Such petitions shall be listed in the normal course before an appropriate Bench.
Annex to the judgment Reproduced in Modern History of Jammu and Kashmir: Ancient times to Shimla Agreement by J. C. Aggarwal, S. P. Agrawal (originally , published in 1995. page 35, paragraph 3). Kashmir: The Case for Freedom By Tariq Ali, Arundhati Roy, Pankaj Mishra, Hilal Matt., Angana P. Chatterji (originally published in 201 1, page 125). Modern History of Jammu and Kashmir Ancient times to Shimla Agreement By J.C. Aggarwal. S.P. Agrawal ( originally published in 1995, page 41). Regional and Ethnic Conflicts: Perspectives from the Front Lines by Judy Carter George Irani, Vamik D Volkan (originally published in 2009, page 44). Quoted in "Unravelling the Kashmir Knot" by Aman M. Hingorani ( originally published in May 2016). Information retrieved from http://gbla.gov .pkipage/history#advocuncil." AJK and Gilgit-Baltistan, Journal of Contemporary Studies, Vol. V, No, I. Summer 2016, at page 80, paragraph 2, available at: "https: "ndu.edu.pk/fcs/ Publications/fcsjournal/JCS 2016 summer/5 .AJ Iti-and-G Igit-Baltistan.pdf. Ibid at paragraph 2. Supra.1 2 3 4 5 6 7 8 9 Information retrieved from "http://gbla.gov .plepage/history#advcouncil." Information retrieved from "http://gbla.gov .pldpage/history#advcouncil." Volume 7, page 108, paragraph 35. Volume 7, Pg. 108, Paragraph 36. Information retrieved from "http://gbla.gov .pk/page/history ."