A Promising Start or mere eyewash?
On May 24, the long wait for full citizenship of Pakistan for the residents of Gilgit-Baltistan finally ended after the local government formally promulgated the Gilgit-Baltistan Order 2018. The piece of legislation, which received presidential assent on June 01, replaces the Gilgit-Baltistan Self-Governance Order 2009. While spelling out the provisions of the Order, the then Prime Minister of Pakistan, Shahid Khaqan Abbasi, said the law would make GB government more powerful than other provincial governments and would grant similar basic rights to the GB residents without any discrimination.
A brief analysis of the Gilgit-Baltistan Order 2018 suggests that it devolves most administrative and financial powers to the area and guarantees its residents all constitutional protections, including access to regular courts. Under the new order, all powers exercised by the GB council, including passing legislation regarding mineral, hydropower and tourism sectors, have been shifted to the GB Assembly. Addressing the joint session of the Gilgit-Baltistan Legislative Assembly and GB Council, the prime minister said under the Order, all powers would rest with the GB Assembly and there would be no discrimination between the fundamental rights, enjoyed by the residents of other provinces and those of the GB. He further said that under the new order, all the subjects, which had been devolved to provinces under the 18th Constitutional Amendment, would also stand devolved to GB. The Gilgit-Baltistan Council would only deal with the federal subject, having just an advisory role, not executive or overriding one.
The positive points of new order are that it has repealed 2009 order and annulled powerful Gilgit-Baltistan Council and powers shifted to Gilgit-Baltistan Legislative Assembly. Apparently, there is no role of Kashmir Affairs ministry as it is GB Assembly that is endowed with powers of legislation. Chief Court will consist of 7 Judges and will be renamed as High Court. Judges’ appointments will be made at local level. There will be Gilgit-Baltistan provincial service commission and a provincial Auditor General.
Till their appointments, the jurisdiction of Federal Public Service Commission (FPSC) and Auditor General of Pakistan (AGP) have been extended to the region. Similarly, the jurisdiction of the Council of Islamic Ideology (CII) has also been extended to the area. Gilgit-Baltistan is being given the status of non-voting/co-opted membership in all constitutional bodies like National Finance Commission (NFC), Economic Coordination Committee (ECC), Council of Common Interests (CII) and Indus River System Authority (IRSA) although, this is not part of the order. There would be no discrimination between the fundamental rights being enjoyed by residents of the region and those living in other parts of the country. Judges of the High Court and governor would be appointed from amongst the local people, and the locals will be allotted a quota in the civil service.
One of the strongest selling points of the order is the dismantling of all federal taxes and bringing G-B on a par with the country’s four provinces – a much-desired objective in itself – under Schedule IV of the Constitution. Its assembly will also have same powers as those enjoyed by the four provincial assemblies of the country.
The Order has sparked a new debate in the area, terming it the Prime Minister-centric. The Prime Minister will have the final authority on legislation and policies of the government. Prime Minister will levy taxes and no decree or order can be issued against him. Prime Minister enjoys sweeping powers in Gilgit-Baltistan but he cannot enjoy the same in other provinces. Moreover, no one can challenge or question the validity of this Order.
As per the GB Order 2018, the rules set therein are applicable within the territory of GB where Governor, as representative of the centre will supervise affairs of the government. However, even in the affairs of regional government, PM will have the final authority of any legislation and administrative decision. Both Chief Minister and Governor will be subservient to the PM.
Article 41 of the Order says that “the executive authority of the government shall extend to the matters with respect to which the assembly has the power to make laws, provided that in any matter with respect to which both Prime Minister and the assembly have the power to make laws, the executive authority of the government shall be subject to and limited by the executive authority expressly conferred and this order by law made and by the Prime Minister”.
According to Article 60 (4) of order “any law which the Prime Minister is competent to enact then the law made by the Prime Minister, whether passed before or after the act of the assembly shall prevail and the act of the assembly shall to the extent of the repugnancy, be void”. The Prime Minister has the power to levy taxes in the area, according to Article 65.
According to Article 61, the executive authority of the Government shall be so exercised as to secure compliance with the laws made by the Prime Minister which apply thereon. (2) It shall be the duty of the Prime Minister to protect Gilgit-Baltistan against internal disturbances and to ensure that the Government is carried on in accordance with the provisions of this Order. Article 62 says, “The executive authority, of the Government, shall be so exercised as not to impede or prejudice the exercise of the executive authority of the Prime Minister, and the executive authority of the Prime Minister shall extend to the giving of such directions to the Government as may appear to the Prime Minister to be necessary for that purpose. The executive authority of the Prime Minister shall also extend to the giving of directions to the Government as to the construction and maintenance of means of communication declared in the direction to be of national or strategic importance. The executive authority of the Prime Minister shall also extend to the giving of directions to the Government as to the manner in which the executive authority thereof is to be exercised for the purpose of preventing any grave menace to the peace or tranquillity or economic life of Gilgit-Baltistan or any part thereof.”
Besides, Article 105 of the Order also gives immense power to Prime Minister in even financial affairs of the regional government. The Article reads: “If the Prime Minister is satisfied that a situation has arisen whereby the economic life, financial stability or credit of Gilgit-Baltistan, or any part thereof, is threatened, he may, after consultation with the Governor, by proclamation make a declaration to that effect, and while such a proclamation is in force, the executive authority of the Government shall extend to the giving of directions to observe such principles of financial propriety as may be specified in the directions, and to the giving of such other directions as the Prime Minister may deem necessary in the interest of the economic life, financial stability or credit of Gilgit-Baltistan or any part thereof. While a proclamation issued under this section is in force, the President may issue directions for the reduction of the salaries and allowances of all or any class of persons serving in connection with the affairs of the Government.”
Another important article is related to imposition of taxes in the area, as the same has been rejected by the residents until the region is mainstreamed through constitutional amendments and given equal rights. Under Articles 65, 60 (2) and (a) and the Third Schedule, Prime Minister has the authority to levy all taxes in the region.
The surprising portion of the order is related to the judiciary in GB where now all exclusive power of appointment in the judiciary is solely vested in Prime Minister. Interestingly, as per Article 77 (2), the direction, order or decree issued by GB Supreme Appellate Court and Chief Court of GB will not be enforceable in the rest of the country. Meaning thereby, no direction, order or decree can be issued against Prime Minister.
Another important legislation through is the order to override other laws. Article 117 says: “The provision of this Order shall have effect, notwithstanding anything contained in the provisions of any law for the time being in force except that in case of conflict between the laws of Pakistan and the laws framed under this Order, the laws of Pakistan shall prevail. No Court, including the Gilgit-Baltistan Supreme Appellate Court and the Gilgit-Baltistan High Court, shall call into question or permit to be called into question, the validity of this Order.”
As per Article 120, the Gilgit-Baltistan (Empowerment and Self-Governance Order, 2009, hereinafter in this section referred to as “the Repealed Order” together with the Orders amending it, is hereby repealed. As the Gilgit Baltistan Council will also cease to exist after the issuance of the new order, section (3) of the Article 120 says that “the six elected members of the erstwhile Gilgit-Baltistan Council shall become the Advisors to the Chief Minister for the remaining part of the tenure of the incumbent Assembly.”
A noted jurist, Justice (Retd.) Muzaffar Ali, suggests the following steps to cope with the emerging situation:
The law division Islamabad should frame reforms for GB in the shape of a bill as per spirit of the judgement, entrusting all the legislative as well as the administrative powers to the elected representatives of the people of GB and present the same reforms before the parliament to pass the bill.
Since, the Supreme Court has declared the people of GB the citizens of Pakistan and it has been observed that the administrative authorities have clearly extended some chapters of the Constitution without any power by the Constitution, to GB. For instance:
(a) under Article 31 of the Order, Chapter 2 of Part-II of the Constitution of Pakistan has been extended to GB;
(b) the jurisdiction of the Council of Islamic Ideology constituted under the Constitution has been extended to GB under Article 67.
(c) the jurisdiction of the Federal Public Service Commission established under Article 242 of the constitution has also been extended to GB under Article 95(2); and
(d) the jurisdiction of Auditor General of Pakistan also has been extended to GB.
Then, after all above, what issue prevents the federation of Pakistan to extend the jurisdiction of Supreme Court of Pakistan to the GB. Therefore, it is suggested that despite, introducing a Supreme Appellate Court as apex court but impliedly subservient to the PM, the jurisdiction of Supreme Court of Pakistan be extended to the GB.
That, in the introductory chapter of the Order, under Article 2(b), all the citizens under the Pakistan’s Citizenship Act,1951 (II of 1951) have been declared-citizens of GB too and in the first schedule pertaining to the oath of the office of the Governor GB, Chief Minister GB, ministers of GB and Speaker of the GB Assembly have been bound to take oath to discharge their duties and perform functions, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan, then, what hurdle remains to declare the GB a province under the Constitution? Therefore, it is suggested that the GB be declared the fifth province of Pakistan.
The GB Order 2018 was meant to be a step forward from the one passed during the Pakistan Peoples Party government in 2009. Under that ordinance, the process of self-empowerment – a cornerstone of republican values enshrined for the rest of Pakistan in the country’s constitution – had been started with the formation of a legislative assembly to be elected by the GB people on the principle of adult franchise. The 2009 Order severely restricted the GBLA’s autonomy since all its affairs were to remain under the scrutiny of a 17-member GB Council to be headed by the Prime Minister of Pakistan. Meaning that real power over all legislative affairs lied with the authorities in Islamabad.
Against this backdrop, the 2018 Order is hardly a step forward. In fact, it makes matters worse by assigning an advisory role to the Council. Meaning that the latter’s power of scrutiny gets transferred to the PM sitting in Islamabad. With 62 legislative subjects under the exclusive domain of the Prime Minister, the GBLA is unlikely to have any empowering role in the region’s government, once the 2018 order gets enforced. There are similar concerns over the lack of judicial authority vested in the GB courts whose jurisdiction remains limited to the region. Such a judicial authority will not be able to check any violations of the fundamental rights of the Gilgit-Baltistan people. Therefore, Part II of the order, on fundamental rights and principles of policy, remains without the necessary legislative and judicial force needed to enforce them.