B L Saraf
In a decision of far reaching consequences ,Pakistan Supreme Court has, on17th January , ordered Pakistan Government to promulgate a new law within a fortnight to grant fundamental and other rights to the people of Gilgit – Baltistan (GB). The order came in response to several petitions filed against constitutional issues and reforms made in the region .
These petitions originated from an order passed by GB Supreme Appellate Court , whereby it had quashed Pak Government’s GB Order 2018. While quashing the order the GB Court had restored GB Empowerment and Self Governance Order 2009. On appeal filed by the Pak Government and others, the Pak SC set aside the GB Court order and made observations as indicated .
The Supreme Court extended its jurisdiction to GB. Commenting upon the powers of region’s courts it observerd that they didn’t have a constitutional power to deal with issues within Pakistan but the people from the region will be able to challenge their top court’s decisions in the SC of Pakistan . It also ordered that people of the region should be given fundamental human rights as provided by the proposed Constitutional order .
Pakistan Government made GB Council order 2018 , on 21st May 2018 which replaced the GB Empowerment and Self Governance Order 2009 . It may be said here that GB was ceded to Pakistan in 1948 by the ruling Muslim Conference. Pakistan bifurcated POK into administrative parts -GB and POK. G B was treated as separate , geographical entity. India had objected then to this bifurcation which amounted to treating GB as a separate Province. A legislative Assembly was provided for G B armed with the same powers which other four provincial assemblies had.
Noting that the international status of Kashmir of which GB is a part , the order said ” as and when the promised plebiscite is organized by the parties to the dispute it will be up to the people of all Jammu and Kashmir to make a choice .” The court also said ” it is surely incumbent upon both India and Pakistan to ensure that the people of the region enjoy maximum rights for the areas within each country’s control.” It said that till plebiscite is held a proper arrangement must be provided by Pakistan for the people of G B for purpose of governance within a frame work of a constitutional nature.
The Supreme Court accorded approval to a proposed Presidential order ensuring a frame work for governance of G B, directing immediate promulgation the order. It appears to be work in progress to satisfy Pakistan’s intention to incorporate GB with the mainland . The federal Government will constitute a committee headed by the Attorney General to review the entire matter and place the draft before it for fresh order for the governance of GB. But what Barrister Ahtizaaz Ahsan, Amicus -Curiae has said on the issue may interest us. He said “Government has expressed intention to first declare GB a provisional province and latter make it a permanent Province . Parliament may pass any amendment regarding GB, Pakistan’s stance on Kashmir would be weakened by making GB a full Province.”
In effect the GB Order 2018 is an attempt to incorporate the disputed region as 5th Province of Pakistan. It is indicative of the fact that Pakistan is reconciled to the status -quo with respect to the whole J&K. So, a camouflaging business is on to justify Pakistan’s action . Never mind the ritualistic reference to the ‘dispute’.
The hurry in integrating GB with Pakistan is explained on a strange reasoning. The necessity of the draft has been explained as ” doing more would require an amendment to the constitution, which need 2/3rd majority. It would take time. Therefore as an interim measure the government intends to give GB people fundamental human rights as enjoyed by Pakistanis.” The attempt not only throws local constitutional scheme to the winds but also has an inbuilt disregard for the politico/ legal character of whole J & K State which has legally acceded to India, in 1947 .
India has protested the Pak SC order on the ground that it amounts to interference in the internal matters of the India. The External Affairs Ministry reiterated that ” entire state of Jammu and Kashmir has been ,is and shall remain an integral part of India.” India rejected Pakistan attempts to bring material changes in these occupied territories .
Notwithstanding the pious declarations made about human rights of People living across LOC and calling upon both the countries to uphold them , a contradiction in the Order is writ large. Pak SC in its order has said that the constitutional status of GB would be determined through a referendum which shall be held within 14 days . Till then GB people will have fundamental rights. At the same time court made a reference to the plebiscite to be held under the UN Charter to decide the fate of whole J &K .
Could we have a ‘minor referendum ‘as a prelude to the ‘major ‘ one ? This is just a lip service to the cause of unsettled GB and a de facto endorsement of Pakistan’s claim on the region. No wonder there is a jubilation in the separatists’ camp in Kashmir. Ali Shah Geelani , Mirwaiz Umar Farooq and Yasin Malik have welcomed Pak SC’s verdict in which it extended its jurisdiction to the disputed territory of GB and ordered changes to the constitutional status of the region after ” a referendum is held within 14 days.” Double speak is evident. They lose no opportunity to castigate India when a small welfare measure is brought for the State. Separatists want to oust Indian Supreme Court’s jurisdiction-no matter how benign it has proved to the poor people in J &K . For them even a minor event of referendum meant just to devise a constitutional set up for GB so as to become fifth province of Pakistan , becomes synonymous with the plebiscite to ” determine the fate of whole Jammu and Kashmir .”
Since China has assumed dominant role in Pakistanis’ politics and economics , with commissioning of China Pakistan Economic Corridor (CPEC) it wanted to settle the political nature of GB and have hassle free run. As CPEC passes through this region it has become strategically important for the country. Bowing to the Chinese pressure PM Shahid Khaqan Abassi passed the GB Order 2018 which granted permanence to the GB’s Political status. This order was challenged by a local MLA in the GB Supreme Appellate Court which first stayed the order and then quashed it. As the order was made during its stay contempt proceedings were initiated against the EX, PM who happened to be the Chairman of GB Council and the Minister in charge Kashmir Affairs. Pak SC, as noted above, set aside the order .
Despite the right noises made , India may not feel too uncomfortable on this development. Who knows the emerging situation may help “resolve the dispute ” which otherwise seems to be intractable ?
(The author is former Principal
District & Sessions Judge)
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