Mr. Afzal Ali Shigri Senator, University of Baltistan, Skardu
افضل شگری صاحب کا نام جہاں گلگت بلتستان کے عوام میں کسی تعارف کا محتاج نہیں وہاں ارباب حل و عقد ریاست پاکستان بھی ان کی پیشہ وارانہ قابلیت کے متعرف ہیں ۔ یہی وجہ ہے کہ قانون سازی و پولیس ریفارم سے متعلق اصلاحات میں وفاقی وزارت قانون آج بھی ان کی ماہرانہ خدمات مستعار لیتی ہیں۔۔زیر نظر مضمون گلگت بلتستان کے آئینی حقوق اور سپریم کورٹ آف پاکستان کے فیصلے کی اہمیت اور اسکی درست تفہیم کے لئے مستند ترین تحریر ہے۔۔۔۔۔۔۔ صلائے عام ہے یاران نکتہ داں کے لئے۔
ON Nov 1, 1947, the president of the azad government of Gilgit, Raja Shah Rais Khan, telegrammed the government of Pakistan to appoint a civil administrator on behalf of the people. It was an unconditional accession and expression of the people of Gilgit-Baltistan’s collective will whereby the civil servants opted for Pakistan and the Scouts revolted against the tyrannical Dogra rule with active support from the local populace.
Shah Rais Khan could not have imagined that the decision would trigger 72 years of uncertainty. In the name of ‘national interest’, the government of Pakistan supported by collaborators from GB arbitrarily yoked the region to the Kashmir dispute, thus perpetuating bureaucratic rule overseen by an incompetent political leadership.
Despite repeated assurances, no government has taken any concrete steps to integrate the region into Pakistan, with the exception of the PPP, which accorded GB a semblance of provincial status albeit without full provincial empowerment. The people’s relentless appeals led the PML-N to establish the Sartaj Aziz committee to examine the matter. Realising the plight of the region, it recommended a provisional provincial status for GB.
Instead of accepting its own committee’s recommendations, the PML-N government, influenced by the Kashmiri leadership, deprived the area of even those limited constitutional rights previously conferred to it by promulgating the draconian GB Order of 2018 which concentrated all executive and legislative powers in the hands of the prime minister of Pakistan, who is neither elected by nor accountable to the locals.
Seventy-two years have passed without any resolution of the status of Gilgit-Baltistan.
Frustrated by the brazen presidential decrees, GB’s residents approached the Supreme Court. On Jan 17, 2019, a seven-member bench of the court announced a landmark judgement that struck down the 2018 order and issued the following directions to the federation:
“(i) The proposed order which (modified as noted above) is annexed to this judgement shall be forthwith promulgated by the president on the advice of the federal government and in any case within a fortnight thereof.
“(ii) No amendment shall be made to order as so promulgated except in terms of the procedures 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 judgement shall be construed to limit the jurisdiction conferred on this court by the proposed order itself and;
“(iii) If the order so promulgated is repealed or substituted by an act of parliament the validity is thereof, if challenged, shall be examined on the touchstone of the Constitution.”
The judgement ordered the promulgation of the law drafted by the attorney general on behalf of the federal government that expressly provided a check on any arbitrary amendment in the law, subjecting any such change to legal review by the Supreme Court under Article 184(3) of the Constitution.
However, instead of implementing this straightforward direction, the government decided to take a U-turn on its own agreed draft order submitted before the court, and filed a review petition. The petition states that the 2019 GB Reforms draft order was placed for approval before the cabinet and that, due to discontentment expressed by the people and the GB government, it was decided that the matter should be placed (bizarrely) before parliament, where the locals are not even represented. The petition further claims in order to reach a consensus among all stakeholders, a meeting was held with them on Feb 6, 2019.
Oddly, the consensus was reached without inviting the petitioners of the case or members of civil society at large. Two resolutions of the local assembly, based on extensive consultation with all the stakeholders for granting provisional provincial status to GB, were conveniently ignored. The consultation with the local PML-N government was a travesty as they were party to the promulgation of the draconian 2018 order. The GB chief minister was bound by the party line and had no option except to push the party agenda to the detriment of the region’s interest.
A summary of the proposed amendment in the 2019 GB reforms was also submitted to the court with a number of proposed changes. These amendments are blatant attempts to undermine the spirit of empowering GB and its residents, and negate the federal government’s commitments submitted before the apex court.
In the draft’s preamble, the commitment of the federal government to accord provisional provincial status, subject to the decision of the plebiscite to be conducted under the UN resolution, has been withdrawn. This is the key demand of the people and supported repeatedly even by the captive local assembly. In an effort to retain the federation’s unbridled powers, two critical amendments have been sought by the federal government; (a) deletion of sub-clauses 2 and 3 of Article 103, to deny the right of the people to approach the Supreme Court, and (b) most importantly, deletion of Article 124, which limits the federation’s power to amend the proposed order unilaterally without placing it before the court.
It is most unfortunate that imperialistic tendencies continue to contaminate the decision-making of ‘democratically elected’ governments in constitutional grey zones such as the GB issue, and that, contrary to a clear judicial verdict, the federal government wants to deprive the people in these areas of their fundamental rights.
By ignoring the dynamics of the region in an age of information and social media, the federal government is stoking discontent in the people of GB, which can imperil the security of the region with destructive ramifications for the Kashmir cause and the key economic development project of CPEC. Hopefully, better sense will prevail and the constitutional status of GB will be resolved so that the spirits of GB’s freedom fighters can finally rest in peace.
The writer, a former IGP Sindh, belongs to Gilgit-Baltistan.
Published in Dawn, October 30th, 2019