Last year, the Chief Minister of Gilgit-Baltistan filed a petition in the Supreme Court of Pakistan under Article 184(3) of the Constitution where he challenged the not long-ago appointed judge of the Chief Court GB and also challenged the extension granted to the 3 judges of the same court. According to the petition, the Governor G-B acted on his own for the appointment of judges while under “Gilgit Baltistan Order 2018” he was required to act on the advice of the Chief Minister.
There is, however, an important distinction to keep in mind because whether the Governor act or does not act on the advice of the Chief minister, in either case, it is a mockery of the independence of the judiciary. If we look at the pertinent provision of the “Gilgit Baltistan Order 2018” related to appointment of judges, Article 75(5) of the Order says, the Chief Judge of the Supreme Appellate Court (GB) shall be appointed by Prime Minister of Pakistan on the advice of Governor, and other judges of the Supreme Appellate Court shall be appointed by the Chairman (the Prime Minister of Pakistan) on the advice of the Governor (appointed by the federal government) after seeking views of the Chief Judge (appointed by the Prime Minister on the advice of the Governor).
If we pay attention to the reply of the federal government and then look at the appointment process of judges in Gilgit Baltistan, it raises more concerns about the independence of judiciary there. What the federal government did not see is that they, in their reply, have made the best case for why this matter should now be heard only by the Supreme Court of Pakistan
So, one thing is clear that “GB Order 2018” compromises the independence of the Judiciary in several ways. Firstly, the appointment of judges by the Governor gives him a significant role in the appointment process. This is because the Governor is appointed by the federal government, which may influence the appointment process in favour of its own interests and this begs the question that, how this did not even occur to the framers of this “Order” because it is a clear violation of our constitutional values. And the same was noticed by Supreme Court of Pakistan in “Civil Aviation Authority vs Supreme Appellate Court Gilgit-Baltistan” where the Supreme Court held that,
“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.” (Page 21)
And about two decades ago before “GB Order 2018” was passed, the apex court in “Al-Jehad Trust Vs. Federation of Pakistan” held that, “People of GB are entitled to participate in the governance of their area and to have an independent judiciary to enforce Fundamental Rights. (Page 1393)
But if we look at the appointment process of judges in Gilgit Baltistan under GB Order 2018, the idea of an independent judiciary still looks like a chimeric dream. The same issue was unequivocally felt by the honourable judges of the apex court and to address the issue inter alia ameliorate the situation, a modified order i.e. “Gilgit Baltistan Governance Reforms 2019” was proposed to make the appointment process transparent through an independent judicial commission and to enhance the independence of judiciary in the region. The court held that the appointment process should be carried out by an independent judicial commission, with representation from judiciary, bar council, and government. This would ensure that the appointment of judges is made without any interference but unfortunately, till present day, the federal government has been reluctant to comply with the orders of the Supreme Court regarding the implementation of the “Gilgit Baltistan Governance Reforms 2019” which is crucial for upholding rule of law and directly affects the fundamental rights of citizens of Pakistan including those living in Gilgit Baltistan.
The federal government, through an additional attorney general, in the aforesaid petition filed by the Chief Minister replied that the Supreme Court of Pakistan lacks jurisdiction to interpret “GB Order 2018” as doing so would be ultra vires and without jurisdiction and that only Local Courts of the region have the jurisdiction to interpret the same.
If we pay attention to the reply of the federal government and then look at the appointment process of judges in Gilgit Baltistan, it raises more concerns about the independence of judiciary there. What the federal government did not see is that they, in their reply, have made the best case for why this matter should now be heard only by the Supreme Court of Pakistan.
If we look at article 258 of the constitution of Pakistan it says, “Subject to the Constitution, until [Majlis-e-Shoora (Parliament)] by law otherwise provides, the President may, by Order, make provision for peace and good government of any part of Pakistan not forming part of a Province.”
Article 175 of the constitution says, “There shall be a Supreme Court of Pakistan, a High Court for each Province (and a High Court for the Islamabad Capital Territory] and such other courts as may be established by law.”
To understand the bigger picture, we have to peruse the above articles together. Article 258 makes it clear that Gilgit Baltistan is a part of Pakistan as “GB Order 2018” is issued under the very same article, while Article 175 tells us that there shall be a Supreme Court of Pakistan and since Gilgit Baltistan is a part of Pakistan, there can be no question about the validity of the jurisdiction of the Supreme Court to interpret the GB Order because the constitution applies to all citizens of Pakistan, including those living in Gilgit Baltistan. Therefore, any laws or actions of the organs created under the “GB Order 2018” that violate the fundamental rights guaranteed by the Constitution would be unconstitutional and subject to challenge in the Supreme Court of Pakistan.
