FEDERATION HAS NO WAY BUT TO IMPLEMENT SC DIRECTIVES

By Justice Retired Muzaffar Ali

The constitutional status of Gilgit-Baltistan is as old as “Kashmir issue” Gbians liberated their mother land from illegal occupation of Maharaja Regime and succeeded to. People constituted a local government in the region thereafter, newly created Muslim country Pakistan extended its de-facto jurisdiction over the region but again attached Gilgit-Baltistan to the “Kashmir issue”.

State of Jammu & Kashmir, ruled by Maharaja before partition of Indo-Pak, divided into three parts main portion was captured by Indian army which is still called occupied Kashmir. A small portion thereof was liberated by the Kashmiris with the help of tribal men, which is called Azad Jammu and Kashmir. The third is GB region which is also considered disputed under Security Council resolutions.

Since all the above mentioned three parts were claimed by both the countries, Pakistan claimed entire Jammu& Kashmir state to be its part as per partition agenda agreed upon by the parties while India claimed the Kashmir state as per so called accession deed made between India and Maharaja Kashmir. Kashmir issue prevented the two neighboring countries from friendly relations rather thrown them into wars against. That is what the situation became hurdled for both the countries to declare, the parts of Kashmir state in their de-facto control, to be their integral parts.

India gave a special status to occupied Kashmir under Article 370 of Indian constitution while Pakistan also awarded a special status to AJ&K through an Act of parliament. People of AJ&K have their own Constitution but unfortunately Gilgit-Baltistan ruled by executive “Orders” imposed from time to time by the Federal Governments in Islamabad, despite a persistent protest against.

The Federal Governments deprived people of Gilgit-Baltistan from their fundamental and constitutional rights, as such there remained nothing but to invoke the jurisdiction of “Supreme Court of Pakistan” hence the issue was taken to Supreme Court and got a verdict from there with the directions to provide fundamental rights safeguarded by an independent Judiciary guaranteed by constitution even if needed to emend the continuation of Pakistan but the verdict given by august “Supreme Court” in well-known case “Al-Jihad Trust” was turned no ears by the Federation for decades.

Thereafter, many petitions under Article 184(3) were submitted before Supreme Court even the federation itself filed a petition before against an order passed by the Supreme Appellate Court GB whereby, “executive order 2018” was suspended. The Supreme Court heard all the petitions about constitutional status of Gilgit-Baltistan pending before, after getting legal assistance of learned attorney General, counsel for petitioners and even getting assistance of senior jurists as “amicus curiae”. During pendency, a committee headed by learned Attorney General submitted a new “proposed order 2019”before august Supreme Court. The honorable Court with the assistance of all the jurists appeared in the case and honorable Attorney General once again visited through the proposed “order” modified and sanctioned it by annexing the same with the judgment announced on 17-01-2019 as part of it and directed forthwith promulgation of the same by the President of Pakistan on the advice of the Federal Government and in any case within a fortnight hereof;

The Federal Government, either on one or another pretext did not complied the mandatory directive of august Supreme Court and used delay tactics to abuse the process of law apparently submitting applications to get extension of time to advice President of Pakistan to promulgate the attached order. The honorable Supreme Court did not extend any further time on application submitted before the Court and during pendency of the application the Federal government again has taken a U-turn by filing an another application to amend the “annexed order 2019”. The situation jolted bar counsel and other bar associations in GB to resist malafide move of the Federation and their representatives appeared before on the date of hearing.

The plain reading of judgment, I have come to the conclusion that, the federation cannot introduce any amendment to the “order 2019”unless the same is promulgated by the President, thereafter too the Federation can introduce amendments within the ambit of directive (II) of SC in its judgment. The amendment application submitted without first compliance of the directives issued by the Supreme Court amounts to contempt of court. The situation in this case is parallel with that situation once has arisen in judicial history when PM Yousaf Raza Gillani using executive tricks impliedly refused to comply the directives issued by the august Supreme Court and had to face contempt of court and resultantly lost his premiership.

During proceedings on 22-05-2019 although the honorable judges (as reported in the newspapers) showed their annoyance through their remarks but it seems honorable judges acted upon principle of judicial restrain, otherwise the Federation might be taken for contempt of court. In further proceedings if the Federation insists its plea of amendment and also requests for getting further time to send its advice to the president for promulgation of the proposed order which is annexed to the judgment than the legal status may turn towards contempt of court. The federation must understand that, the honorable court has provided judicial imprimatur and permanence to the proposed “order” and restrained the executive from their whimsical interferences and awarded unassailable judicial protection to the Gbians in the cited judgment.