The constitution is a living document; it is more so as the judiciary keeps interpreting it. On 7th January 2019, a seven-member bench of the Supreme Court of Pakistan rendered its judgement in a case titled “Civil Aviation Authority us. Supreme Appellate Court Gilgit Baltistan etc.” (Civil Aviation Case-2019) wherein the Court touched upon a multitude of subjects including the separation of judiciary from the executive, the enforcement of fundamental rights, constitutionality of the Gilgit-Baltistan (GB) and the application of international law in the dispute between Pakistan and India.
The judgement is interesting in many ways. Building upon an earlier judgement of the Supreme Court of Pakistan in a case titled as Al-Jehad Trust vs. Federation of Pakistan (Al-Jehad Trust Case-1999) that mooted around the question of separation of the judiciary from the executive, the Supreme Court, in its own words, provided ‘judicial imprimatur’ to a draft legislation that has been styled as the Gilgit Baltistan Governance Reforms Order, 2019. The directions of the judgement are important and, definitely, merit verbatim reproduction:
“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to the Order as so promulgated except in terms of the procedure provided in Article 124 of the same, nor shall it be repealed or substituted, without the instrument amending, repealing or substituting (as the case may be) the same being placed before this Court by the Federation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
If the Order so promulgated is repealed or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution.”
In this context, the instant write-up will try to juxtapose the reasoning employed by the judgement with applicable international law in the dispute of Kashmir; it will also highlight some incidental issues related with the judgement that are likely to have far-reaching effects in terms of jurisprudence of the court.
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