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to the Order as so promulgated except in terms of the procedure provided in Article 124 of the same, nor shall it be repealed or substituted, without the instrument amending, repealing or substituting (as the case may be) the same being placed before this Court by the Federation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If the Order so promulgated is repealed or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution.”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.
I. International Law and Gilgit-Baltistan
Internationalization of Kashmir dispute is based on the United Nations Security Council resolutions, which were based on the principle of ‘right of self-determination’. The people of Kashmir were expected to exercise their right of self-determination through an impartial plebiscite. The instant judgement in Civil Aviation Case-2019 as well as the earlier judgement in the Al-Jehad Trust Case-1999 clearly acknowledged and re-affirmed Pakistan’s position on Kashmir; the judgements, however, relied on the citation of an excerpt from the Fourth Year’s Official Records of the Security Council that recorded that when the United Nations Security Council Resolutions were being deliberated, the United Nations Commission on India and Pakistan (UNCIP) had noted that ‘…by January, 1949, Pakistan undeniably held military control over the Northern Areas; the area was administered by local authorities, not those of the Jammu and Kashmir Government, with the assistance of Pakistani officials…’. The undisputed note of the UNCIP, in view of the honourable judges, clearly established that the Northern Areas were not the subject matter of the Kashmir dispute between Pakistan and India and, therefore, the applicable international law to Kashmir did not apply to them. On the contrary, the earlier judgement of Al-Jehad Trust Case-1999 pressed into service the Universal Declaration of Human Rights, 1948, to state that the Fundamental Rights guaranteed under the Constitution of Pakistan mirror the international human rights law, and Pakistan had to extend these to the people of GB. The judgement stated that Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 15 and 21, in fact, have been ‘reflected’ in the Fundamental Rights under the Constitution of Pakistan, 1973.
II. Constitutional Law and Gilgit-Baltistan
While the Constitution of Pakistan, 1973 does treat the AJK separately under Article 257, it does not do so for GB. Article 257 of the Constitution reads:
“When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of that State.”
Besides, the judgement notes that unlike the AJK, the GB remained ‘completely under Pakistan’s administrative control’, and the evidence to this extent was the type and nature of administrative and legal arrangements that were extended there. The details of these arrangements have been made part of the judgement. For ready reference, the gist of the details is stated hereunder:
In addition, the Al-Jehad Trust Case-1999 stated that most of the Pakistani statutes have been made applicable to the Northern Areas. The examples include the Pakistan Citizenship Act, 1951 (Adaptation) Order, 1981, etc.
III. The Gilgit-Baltistan Governance Reforms Order, 2019
In a unique manner, a draft legislative order is annexed with the judgement in the Civil Aviation Case-2019. The said piece is proposed to be an order under Article 247(6) of the Constitution of Pakistan, 1973, which relates to administration of ‘Tribal Areas’. While the constitutionality of any legislation under Article 247(6) is arguable after the enactment of the Twenty-Fifth Constitutional Amendment, the draft order, in its present form, is a constitutional document as it, in its recitals, alludes to the UN resolutions and to the fact that the GB may be accorded ‘constitutional status’ after further constitutional amendment. It also lists Fundamental Rights akin to the Fundamental Rights enshrined in the Constitution of Pakistan. The legislative list contained in the Third Schedule of the proposed order, read with its Article 68, provides for legislating powers that enable and empower the legislature to introduce legislation of primary nature, not of delegated nature; such empowering legal framework, notwithstanding the legitimate and constitutional rights of the people of the GB, may be required to be tested on the anvil of the Constitution of Pakistan that provides for limited scope of such Presidential orders.
The judgement is under consideration at various levels. The people of the GB are unique in the sense that they are trying to peacefully assimilate into the mainstream constitutional framework of Pakistan by demanding constitutional status for their territory. As recorded in the judgement, the international law insofar as the Kashmir dispute is concerned is not applicable to the GB; however, for the sake of municipal law, the status of GB has to be decided to further strengthen the position taken by the Supreme Court, which essentially started its quest of identifying the status of the territory by examining the question of separation of judiciary from the executive in the GB, and then went on to the enforcement of the Fundamental Rights of the people through powers under Article 184(3) of the Constitution of Pakistan. The issue should be decided in the light of established principles of constitutional law instead of allowing it to become a constitutional conundrum.