Case Summary & Legal Holding

This judicial decision was delivered by the Supreme Court of Pakistan on 2019-01-17. The matter involves proceedings between Civil Aviation Authority and Supreme Appellate Court Gilgit Baltistan etc, officially reported as 2019 PLD 357. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

Court Name: Supreme Court of Pakistan Judge(s):Ijaz-ul-Ahsan, Sajjad Ali Shah, Mian Saqib Nisar, Umar Ata Bandial, Sh.

Azmat Saeed, Faisal Arab, Munib Akhtar Title: Civil Aviation Authority vs Supreme Appellate Court Gilgit Baltistan etc Case No.:CONST. PETITIONS NO.50/2018, 51/2018 & 63/2011, CIVIL MISC. APPLICATIONS NO.4922, 5382/2011, 695/2012 & 724/2017 IN CONST. PETITION NO.63/2011, CONST. PETITIONS NO.6/2012, 16/2015 & 20/2015, CIVIL MISC. APPLICATION NO.6966/2017 IN CONST. PETITION NO. 20/2015, CONST. PETITION NO.3/2016, CIVIL MISC. APPLICATION NO.6800/2017 IN CONST. PETITION NO.3/2016, CONST. PETITION NO.13/2016, 32/2016, 34/2016, CIVIL MISC. APPEAL NO.184/2016 IN CONST. PETITION NO.NIL/2016, CIVIL MISC. APPLICATION 7367/2016 IN Date of Judgment:2019-01-17 Reported As: PLD 2019 Supreme Court 357, 2019 P.S.C. 169, 2019 SCP 22 Result: N/A Judgment MIAN SAQIB NISAR, CJ.- Succinctly, the instant matters pertain to a very important historical and constitutional issue involving the status, authority and powers of Gilgit-Baltistan (GB) including the judiciary and the rights available to its people. Although similar issues emanate from the various constitution petitions filed before this Court, it would be pertinent to briefly discuss the factual background of each case before proceeding further:- i. In Constitution Petition No.63/201 1, the petitioner who is a political and social activist, seeks the enforcement of the independence of the judiciary in GB and thus challenges the vires of the Gilgit-Baltistan Empowerment and Self-Governance Order 2009 (2009 Order) (and the Gilgit Baltistan Order , 2018 (2018 Order) by amendment of the petition through a C.M.A.) in light of Article 175 and 203 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) ; ii. In Constitution Petition No.6/2012, the GB Chief Court Bar Association claims that the 2009 Order did not make sufficient provisions for the appointment of judges to the GB Supreme Appellate Court and this oversight threatens the establishment of an independent judiciary in GB and thus the vires of the relevant provisions [Articles 60(5), (6) and (8) of the 2009 Order] have been challenged.

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iii. In Constitution Petition No.16 and 20/2015, the petitioner , GB Bar Council (in both the petitions) seeks appropriate directions to the respondents to arrange for issuance of an order contemplated by Article 258 of the Constitution read with Article 1(2)(d) thereof, to provide for good governance for GB in compliance with the direction already issued by this Court in paragraph No.28 of the judgment reported as Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others Vs. Federation of Pakistan through Secretary , Ministry of Kashmir Affairs, Islamabad and 3 others (1999 SCMR 1379 ) to enforce fundamental rights; iv. In Constitution Petitions No.30, 31, 32 and 36/2015 the petitioner challenged the appointments of the Chief Election Commissioner GB, Governor of GB and the Chief Minister of GB made under the 2009 Order and sought a declaration to the effect that the said Order was ultra vires and the fundamental rights extended to the people of GB be enforced; v. Petitioners No.1 and 2 in Constitutional Petition No.64/2015 are faculty members of various medical colleges and petitioners No.1, 3 and 4 are also members of the Pakistan Medical and Dental Council (PMDC) . Through the instant petition they claim that Section 2 of the PMDC (Amendment) Ordinance, 2015 on account of being discriminatory to the people of Azad Jammu and Kashmir and GB be declared ultra vires of Article 25 of the Constitution, fresh elections be announced for members of council of PMDC and Regulation No.9(2) of the PMDC Regulations 2015 be declared unreasonable, arbitrary and of no legal ef fect; In Constitutional Petition No.2/2016 the judgments against the Federal Board of Intermediate & Secondary Education by the lower fora were upheld by the GB Supreme Appellate Court. Through the instant petition, the impugned judgment was sought to be declared as beyond the jurisdiction of the said Court and the declaration that no civil proceedings may be initiated against it in the territory of GB and any such proceedings should have no legal effect; vi. In Constitutional Petition No.3/2016, the petitioner Shaheen Airline Limited was issued directions in Suo Moto Case No.2/2009 by the Supreme Appellate Court to operate flights to Gilgit Baltistan despite it not being commercially feasible for the petitioner . Through this petition, the petitioner seeks that the said suo moto proceedings and all the orders issued therein be declared unconstitutional, ultra vires of the Constitution and void ab initio; vii. In Constitutional Petition No.13/2016, the petitioner , inter alia, seeks the implementation of the judgment passed in Al-Jehad Trust's case (supra) as well as the declaration that the 2009 Order is ultra vires of the Constitution and has no legal value unless the Constitution is amended; viii. In Constitutional Petition No.34/2016, the Pakistan Agriculture Research Council seeks reversal of the transfer of 24 kanals and 3 marlas to Pakistan State Oil under the mistaken belief that the said land was owned by the Government of GB whereas according to the petitioner the said land was owned by the Government of Pakistan and could not be unilaterally so transferred. The said matter was sub judice when it was taken up in suo moto proceedings by the GB Supreme Appellate Court in S.M.C. No.8 of 2016 and directions have been issued to facilitate said transfer . The petitioner seeks, inter alia, that the jurisdiction of the said Court be outlined in light of the Constitution of Pakistan and the said transfer of land be declared void and without lawful authority . x. In Constitutional Petition No.3/2016, the petitioner, inter alia, seeks implementation of the Al-Jehad Trust's case (supra) as well as the declaration that Order 2009 is ultra vires of the Constitution and has no legal value unless the Constitution is amended and therefore should be declared ultra vires; xi. In Constitutional Petition No.6/2017, there was a dispute regarding shamlat land measuring 30 kanals in Satpara Lake which the Pakistan Tourism and Development Corporation (PTDC) wanted to acquire. Vide impugned order dated 19.11.2015 in S.M.C. No.3/2009, this Court issued directions to PTDC to bring its work at the Satpara Lake in conformity with the environmental standards it laid out which directions the PTDC states that it has complied with. Subsequently , through suo moto case No. 2/2016, the GB Supreme Appellate Court passed a series of adverse orders against PTDC. The petitioner seeks, inter alia, that the proceedings be declared illegal, unconstitutional and coram non judice and be quashed. xii. In Constitutional Petition No.30/2017, the Federal Board of Revenue, Islamabad, Pakistan (petitioner) seeks a declaration by this Court that the GB Supreme Appellate Court exceeded its jurisdiction when in suo moto case

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No.11/2010 it passed orders issuing notices and orders to and against the petitioner , declaring the same to be unconstitutional, coram non judice and consequently quash the same; xiii. In Constitutional Petition No.61/2017, the petitioner is a representative body of Hotels and Restaurants in GB which seeks the implementation of the Al-Jehad Trust case (supra) which, inter alia, provides for the right of access to justice and independence of judiciary to the people of GB. Thus directions are sought from this Court to implement the same in letter and spirit; xiv. In Constitutional Petition No.49/2018, the Supreme Appellate Court of GB after taking cognizance of the matter vide judgment dated 13.7.2018 set aside the 2018 Order . The Federation of Pakistan through the instant petition seeks that the said judgment be set aside and such action of the said Court be declared unconstitutional and beyond its jurisdiction; xv. In Constitutional Petition No.51/2018, the petitioner seeks the quashment of the impugned judgment wherein the GB Supreme Appellate Court declared the by-election held in petitioner's constituency to be void, illegal and without any legal authority, thus it was set aside seeking inter alia that: (1) the GB Supreme Appellate Court exceeded its jurisdiction by taking suo motu notice under Article 61 read with Article 95 of the 2009 Order; (2) suo motu notice was taken of a fact not pleaded in the lis; (3) the impugned judgement is per incuriam for having been rendered in derogation of the express words used in Article 61 of the 2009 Order; xvi. In Constitutional Petition No.55/2018, the petitioner , GB Bar Council, inter alia, seek that the 2018 Order be declared illegal, void ab initio and without legal authority; xvii. In Constitutional Petition No.50/2018, the Petitioners, Civil Aviation Authority seek that the declaration that the jurisdiction of the Chief Court in terms of article 71 of the 2009 Order is only to the extent of the Government of GB therefore the latter does not have the jurisdiction to issue writs/directions to the former; xviii. In Constitutional Petition No.18/2018 the petitioner is a citizen of Pakistan after remaining in the permanent and pensionable service of the Armed Forces Medical College Rawalpindi. This is mainly a service dispute and the petitioner seeks implementation of the judgment of the Federal Service Tribunal against the Principal Public School & College, Jutial, Gilgit. The petitioner seeks quashment of the judgment passed in Writ Petition No.108/2017 filed by the respondents to be declared without lawful authority, coram non judice and not maintainable; and xix. In Constitutional Petition No.41/2018, the Federation of Pakistan through Secretar y Ministry of Kashmir Affairs and Gilgit Baltistan Islamabad seeks quashment of the impugned judgment wherein the GB Supreme Appellate Court vide order dated 20.06.2018 stayed the operation of the 2018 Order and its implementation process was suspended till the decision of the suo moto taken by the said Court. 2. The following common but key questions stem from the foregoing factual background:- i. Would granting fundamental rights and a status, role and recognition to the people of GB within the constitutional scheme of Pakistan prejudice Pakistan' s cause for the resolution of the Kashm ir dispute by such appropriate means as may be acceptable to Pakistan (which could, for example, be a United Nations sanctioned and supervised plebiscite). ii. What rights can be granted to the people of GB. iii. Is the GB Supreme Appellate Court a constitutional court. To answer the foregoing questions, it is pertinent to examine some of the comm itments made to the people of Jammu and Kashmir . Their importance is enhanced by some special provisio ns in the constitutions of both Pakistan and India. These constitutional provisions are not only a continuing reminder of those commitments but especially from Pakistan' s side most definitely and certainly reiterate its commitment to a peaceful resolution of the Kashmir dispute in accordance with International Law and the aspirations of the people of Kashmir . 3. The Kashmir issue, starting as it did in the dying days of the British Raj and erupting and escalating into a dispute (and indeed armed conflict) shortly thereafter, became one of Partition's defining moments. A process that could have produced two empowered, independent countries countries with a shared history and hopes of a productive and cooperative future--instead embroiled Pakistan in strife that it did not want and was not of its making. The origins of the dispute lay in the contrived (some might even say coerced) accession of Kashmir to

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India by the Hindu ruler of a Muslim majority state, which was contrary to the expectations of the population and to the basis professed to be preferred by the British for accession by Princely States. The resultant heroic uprising and resistance by the majority was but inevitable. Subsequent United Nations (UN) intervention recommended, and Pakistan and India accepted, a de-escalatory approach leading up to calls for a plebiscite to determine the wishes of the people of the region. Succe ssive Security Council Resolutions asked the UN to facilitate a "free and impartial plebiscite to decide whether the State of Jammu and Kashmir is to accede to India or Pakistan." 4. What does require clarification is that the commitment to a plebiscite was, at least ostensibly , echoed also from Indian side, perhaps in an attempt to calm the uproar around the obvious injustice of Maharaja Hari Singh' s alleged declaration of accession to India. Thus, the then Prime Minister of India, Pandit Jawaharlal Nehru unambiguously committed himself to the plebiscite arrangement. His telegrams to the Prime Ministers of Pakistan and the United Kingdom (UK) sought to create the impression that any Indian recognition of the Maharaja' s accession to India was only provisional and that the question of the future of Jammu and Kashmir (i.e., whether as part of Pakistan or India) would be determined by its own people after the restoration of law and order . What, after all, could (at least facially) be more unambiguous than Mr. Nehru' s telegram to the British Prime Minister , Clement Attlee where, in paragraph No.3, he committed that "I would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of people and we adhere to this view ." [Emphasis supplied] This commitment of the Prime Minister of India was repeated and forwarded by the Prime Minister of Britain to the Prime Minister of Pakistan on 27 October , 1947 by stating that "He adds that he would like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India." 5. Mr. Nehru continued his protestations of supporting the right of the Kashmiri people to so decide their future in direct communications with Pakistan' s leaders. Thus in his telegram of 28 October , 1947 to Mr. Liaquat Ali Khan, Mr. Nehru reiterated that:- "In regard to accession also it has been made clear that this is subject to reference to people of State and their decision. The Government of India have no desire to impose any decision and will abide by people's wishes." Similarly , in his telegram of 31 October , 1947 to the Prime Minister of Pakistan, the Prime Minister of India reasserted as follows:- "Our assurance that we shall withdraw our troops from Kashmir as soon as peace and order are restored and leave the decision regarding the future of this State to people of the State is not merely a pledge to your Government but also to the people of Kashmir and to the world." Mr. Nehru's claims of sincerity in empowering the people of Kashmir to so decide their future continued unabated. In his telegram of 4 November, 1947 to the Prime Minister of Pakistan, Mr. Nehru declared, yet again that:- "I wish to draw your attention to broadcast on Kashmir which I made last evening. I have stated our Government's policy and made it clear that we have no desire to impose our will on Kashmir but to leave final decision to people of Kashmir . I further stated that we have agreed on impartial international agency like United Nations supervising any referendum. This principle we are prepared to apply to any state where there is a dispute about accession." Mr. Nehru's claims of fealty to the rights to the Kashmiris were echoed by his government's representatives. The Indian representative to the UN, Mr. Gopalaswami Ayyangar, made a policy statement in the UN Security Council on 15t January, 1948 where he claimed that India desired "only to see peace restored in Kashmir and to ensure that the people of Kashmir are left free to decide in an orderly and peaceful manner the future of their State. We have no further interest, and we have agreed that a plebiscite in Kashmir might take place under international auspices after peace and order have been established." 6. It was on the basis of such assurances that the UN Security Council passe d resolutions on 17 and 20 January , 1948 establishing the UN Commission for India and Pakistan (UNCIP) . The UNCIP was directed to investigate the facts and to report its advice. On 6 February , 1948, the Security Council made an appeal to both parties to agree on a just settlement of the Kashmir problem, to put an end to violence and hostilities and to1 th 2 th 3 st 4 th 5 h th th th

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withdraw all regular and irregular force s who had entered the State from outside. These resolutions were supplemented by a comprehensive resolution passed on 21 April, 1948 and the UNCIP' s resolutions of 13 August, 1948 and 5 January , 1949. Truce was declared on 1 January , 1949. However , rather than adopting the process of demilitarization as envisaged in the aforesaid resolutions India has made the area that it holds in Kashmir as one of the most militarized areas in the world. 7. We have taken the liberty of citing at length from the statements of the Indian leadership because it is important to understand that the concept of the international nature of the Kashmir dispute was not a demand put forth merely by Pakistan. To the contrary , the repeated statements of Mr. Nehru make clear that the right of self- determination of the Kashmiri people was a right acknowledged, promoted and committed to by the Government of India as well as the Government of Pakistan and embraced and sanctified by the international community through the UN. 8. Commitments of this nature ought to be inviolable. Pakistan has certainly not resiled from its commitments-- whether to the people of Kashmir or the international community . However , and this is a sad but hard reality , despite the passage of seven decades the promised plebiscite has yet to be held and the territory of Kashmir continues to remain divided--Jammu and Kashmir under the Indian Constitution, increasingly subsumed into India (hereinafter referred to as "Indian Occupied Kashmir" or "IOK") on the one hand, and the State of Azad Jammu and Kashmir (hereinafter referred to as "AJK") and the territory of GB on the other . 9. Over the decades the trajectories of the divided region have diverged. The part under Pakistan' s administrative control (i.e., GB)--subject to the writ of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) --and that aligned with Pakistan (i.e., AJK) have progressed (though perhaps not as swiftly or as much as Pakistanis would have desired) and remained largely at peace, while the portion of Kashmir under Indian control has been convulsed with resistance and rebellion--expressions of popular sentime nt that have been met with ever worsening repression and suppression. 10. The situation at present in IOK is dire. To reach such conclusion we need not turn to any official document or statement from Pakistan. Reliance can be placed upon the most recent report of the Office of the UN High Commissioner for Human Rights (OHCHR) issued in the summer of 2018 which pulls no punches and is damning. It notes widespread allegations of "human rights violations [that] include torture and custodial deaths, rape, enforced disappearances and extrajudicial killings." With some 500,000 to 700,000 troops in the territory , the OHCHR report noted that "Indian Kashmir" is "one of the most militarized zones in the world." "Impunity for human rights violations and a lack of access to justice" are just a few of the human rights challenges in IOK. This impunity is sanctioned and promoted by such draconian laws as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 (AFSP A) that grants broad powers to the security forces and effectively bestows immunity from prosecution in civilian courts for their conduct by requiring the central government to sanction all prospective prosecutions prior to being launched. As per the OHCHR, the law "gives virtual immunity against prosecution for any human rights violation. In the nearly 28 years that the law has been in force in Jammu and Kashmir, there has not been a single prosecution of armed forces personnel granted by the central government." The provisions of AFSPA fly in the face of the most basic international norms and conventions. For example, section 4 thereof allows any personnel operating under the law to use lethal force not only in cases of self-defence but also against any person contravening laws or orders "prohibiting the assembly of five or more persons." The use of pellet guns is regarded as directly responsible for the blinding, and thus incapacitation, of hundreds of Kashmiri youth. Others have been bound, in some of the most bizarre sights of the modern era, in front of military vehicles, self-evidently as so-called "human shields" against stones lobbed by unarmed youth facing the terrible might of one of the world's largest and most well-equipped armies. 11. In contrast, circumstances on the Pakistan side of the Line of Control (LOC) are markedly better. Tellingly, the OHCHR Report devotes most of itself to the situation in Indian-held Kashmir. There is of course an obvious and understandable reason for this. In all of the seven decades since Independence even when Pakistan itself was caught in, and convulsed by, turmoil of the most tragic nature, there was always an obvious and popularst th th st

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acceptance of, and for, Pakistan by the people, both in AJK and GB. On the Indian side however state sanctioned violence seems to go on and on. 12. As acknowledged by the OHCHR Report , AJK is neither a police state, nor are military laws or rules in place. Basic rights are available to the population and most elements of due process exist. Relative to IOK, the region is empowered, peaceful and prosperous. But a relative improvement as compared with the dire situation across the border is not the standard that Pakistan should ever be satisfied with. Nor is this Court prepared to tolerate or condone any violation of human rights on this side of the prevailing divide even though those breaches involve no violence as reported from the other side. We should seek to hold ourselves to the highest standards of conduct in relation to the territories for which Pakistan bears responsibility. In this context, there is always more work to be done. 13. As noted, Pakistan has responsibilities in relation to two regions: AJK and GB. In 1948, UNCIP recognized the existence of local authorities (as distinct from the Government of Pakistan) for the territories. We are of course here concerned with GB alone. The region has not been incorporated into Pakistan as it is considered to be a part of the disputed State of Jammu and Kashmir. However, it has always remained completely under Pakistan's administrative control. 14. For the governance of the region, a series of administrative structures and laws have been applied to GB since 1947. These have included the following (up to 1999) :- Year Legal instrument Description 1947Frontier Crimes Regulations (FCR) implementedFirst law to be enforced was a continuation of the colonial law of FCR. Under this British law for the tribal areas and GB, a civil bureaucracy exercised all judicial and administrative power . 1949Karachi AgreementOn 28 April, 1949, officials of the Pakistan Government met with those of the AJK Government to ink the Karachi Agreement. Under this accord, it was agreed that the affairs of Gilgit would be run by the Pakistan Government. It appears that no leader from Gilgit was included in this agreement. 1950Ministry of Kashmir Affairs and Northern Areas createdAffairs of Northern Areas handed over to the Ministry of Kashmir Affairs and Northern Areas (KAMA) . Joint Secretary of the Ministry of Kashmir Affairs has been performing duties of Resident in the Northern Areas with all administrative and judicial authority since 1952. 1952Political Resident AppointedJoint Secretary of the Ministry of Kashmir Affairs who headed the local administration and judiciary; was responsible for enforcement of the FCR and was also the financial and revenue commissioner. The Resident also exercised legislative powers in the Northern Areas in consultation with the Federal Government. 1967Political Agents appointedKANA transferred powers of the High Court and Revenue Commissioner to the Resident and appointed two Political Agents, one each for Gilgit and Baltistan. 1970Advisory Council for Northern Areas Council Constitutional OrderBetween Pakistan and the Azad Kashmir Government. 21 elected and non-elected members headed by the then Resident for…

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