1.

Status of Gilgit Baltistan

CASE: Civil Aviation Authority vs Supreme Appellate Court

 The current matter revolves around the historical and constitutional issue involving the
status, authority and powers of Gilgit-Baltistan including the judiciary and rights available to
its people.

Different petitioners claimed different issues arising out of their situations, mostly
challenging different Orders passed in GB (eg, Gilgit-Baltistan Empowerment and Self-
Governance Order 2009) and their legality. Other challenging the appointment of chief
election commissioner GB, questioning the vires of PMDC Ordinance 2015, whether GB
Chief court can issue directions to the CAA etc.

All these cases had the 3 key questions in common:

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 Kashmir 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?

-History of Indian occupied Kashmir and azad jammu and Kashmir. The situation on either
side of the border. Pakistan has responsibilities in relation to two regions – AJK and GB.
GB has not been incorporated in Pakistan as it is a part of the disputed state of Jammu and
Kashmir, however, it has always remained in Pakistan’s administrative control.

Q. 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 Kashmir dispute by such appropriate means as may be
acceptable to Pakistan (which could, for example, be a United Nations sanctioned
and supervised plebiscite)?

- In Al-Jehad Trust vs. Federation of Pakistan  the court directed the Pakistan
government to extend fundamental freedoms to the Northern Areas (now GB) within
6 months. Pakistan excerised both de facto and de jure administrative control over the
northern areas. This court referred to the people of GB as citizens of Pakistan.
- There was no follow up to the judgement passed in the Al-Jehad trust case, but after a
decade the Federal Government promulgated the 2009 Order to establish a system of
full internal governance in GB.
- However, under a fact-finding mission it was reported that the 2009 order was not
over-arching and it had several deficiencies as it did not guarantee the right to
protection against double punishment, right to information and right to education.
- Even though some rights are available, such as under the PPC and CRPC these are not
protected by overarching framework to a constitutional nature. Perhaps
unsurprisingly, the 2009 Order failed to fully address the aspirations of the people of
GB for full empowerment and representation.
 - In 2015, GB legislative assembly passed a unanimous resolution demanding to
include GB in Pakistan as a constitutional province.
- Committee on Constitutional and Administrative Reforms in GB – concluded that
further reforms were required to enhance the sense of participation of the people of
GB and to upgrade the standard of governance and public service delivery. At the
same time, the Committee noted that the reforms proposed should not prejudice
Pakistan’s principled position in the context of UN resolutions on Kashmir.
- Pakistan emphasized upon the right of people of GB to choose and make effective
decision and the consideration of plebiscite be taken into account.
- As and when the promised plebiscite is organized by the parties to the dispute, it will
be up to the people of all of Jammu and Kashmir, and of GB, to make their choice.
Till then, it is surely incumbent upon both India as well as Pakistan to ensure that the
people of this region enjoy maximum rights for areas within each country’s control.
- Therefore, till such time that the plebiscite is held, a proper arrangement must be
provided for by Pakistan for the people of GB for purposes of governance within a
framework of a constitutional nature, including most importantly the enjoyment of
fundamental rights.
- Pakistan has the principled position that the people of Kashmir deserve to exercise all
fundamental rights including the right of self-determination in terms of the
plebiscite, the promise of which remains yet to be actuated. 22. Regrettably, this
latter right is not solely within Pakistan’s own prerogative to proffer. It is a right that
can only be exercised with the participation of India and the international community
through the UN. However, Pakistan does have the ability to itself empower the people
of
- GB with all those fundamental rights that Pakistanis enjoy, without the involvement
of India or the international community, and without prejudice to the right of self-
determination through a plebiscite of all the people of Jammu and Kashmir. These
rights for GB residents would include the right to representation as well as all
other rights enjoyed by the citizens of Pakistan.

 Another question before this Court is whether the GB Supreme Appellate Court lacks the
judicial power and jurisdiction to suspend, set aside or vary an Order promulgated by the
President of Pakistan for the governance of GB,

- Given the present status of GB – a region where Pakistan has administrative control
and exercises all aspects of its sovereignty, it is clear that Federation is empowered to
make arrangements for the governance of the region.
- This power extends to enacting and putting into place, whether on the executive side
by means of an Order promulgated by the President or on the legislative side by an
Act of Parliament, a framework and system of governance that is of a constitutional
nature.
-

Q. Is the GB Supreme Appellate Court a constitutional court?

- GB court doesn’t have the power of judicial review within the territory of Pakistan
nor can it declare Orders made or legislation passed by the President/Parliament as
ultra vires, nor can it initiate judicial review of departments working outside of GB
- The 2018 Order can be challenged before this court under Article 184 of the
Constitution.
Summary:

- ISLAMABAD: The Civil Aviation Authority (CAA) has requested the Supreme
Court (SC) to suspend all the proceedings pending against it before the Supreme
Appellate Court and the Chief Court, Gilgit-Baltistan, and restrain both the forums
from further initiating and entertaining such cases/proceedings till final adjudication
by the SC, adding that these are not courts of law as are given, provided and defined
under the law and the Constitution of Pakistan 1973.
- Mian Shafaqat Jan, advocate, filed the petition in the Supreme Court on behalf of
Civil Aviation Authority (CAA) under Article 184(3) of the Constitution, making the
Supreme Appellate Court, Gilgit-Baltistan, through its Registrar, Supreme Appellate
Court building, Gilgit, the Chief Court, Gilgit-Baltistan, through its Registrar, Chief
Court building, Gilgit and Federation of Pakistan, through the Ministry of Kashmir
Affairs and
- Gilgit-Baltistan, through its secretary, Islamabad as respondents. The petitioner
contended that all proceedings taken, orders passed, writs/directions issued,
judgments delivered by the Supreme Appellate Court, GB, and/or the Chief Court,
GB, against it, so far, are, therefore, coram non judice, without lawful authority and
jurisdiction and against the law and Constitution.
- It was contended that the petitioner (CAA) is a statutory body corporate, established
by the Federal Government of Pakistan, pursuant to the provisions of Section 3 of the
Pakistan Civil Aviation Authority Ordinance, 1982 (the “Ordinance of 1982”) for
carrying out the purposes of the Ordinance of 1982 and is responsible, under the said
ordinance, for the regulation and control of the civil aviation activities in the country.
- Mian Shafaqat Jan informed the apex court that pursuant to the powers vested in it
under the Ordinance of 1982, the Civil Aviation has established and is managing and
operating two airports in the territories of Gilgit-Baltistan, one at Gilgit and the other
one in Skardu.
- He contended that administratively, the territories of GB are governed by the
Federation through a Statutory Regulatory Order i.e. SRO No.786(1)2009 known as
the Gilgit-Baltistan (Empowerment and Self Governance Order, 2009 (the “GB Order,
2009”).
- The CAA submitted that it is only through the aforesaid SRO i.e. the GB Order, 2009
that the Federation has established the Respondents, the Supreme Appellate Court
building, Gilgit and the Chief Court, Gilgit-Baltistan, under the Chapter titled as “the
Judicature”.
- "It clearly shows that the Chief Court, GB, (if it is a Court under the Constitution and
law), has the jurisdiction, as conferred upon it under Article 71 of the GB Order,
2009, to issue writs/ directions only against the Government of Gilgit-Baltistan and/or
a person performing functions in connection with the affairs of the Government of
Gilgit-Baltistan and has no jurisdiction against the petitioner or any other
person/authority performing functions in connection with the affairs of the Federation
of Pakistan or a local authority established by the Federation of Pakistan albeit it has
its presence in the local limits of the territories of GB”, the CAA submitted.
- It contended that all those persons/authorities/local bodies not performing functions in
connection with the affairs of the Government of Gilgit-Baltistan do not fall within
the jurisdiction of the Supreme Appellate Court Gilgit-Baltistan and the Chief Court
Gilgit-Baltistan.
- The petitioner submitted that both the forums entertaining petitions, conducting
proceedings and issuing orders/directions/writs and judgments against it on various
 issues, including but not limited to suo motu proceedings (by the Supreme Appellate
Court), petitions relating to the grievances of the employees of petitioner who are
posted at and performing their services in the territories of GB i.e. the Gilgit airport
and the Skardu airport.
- The petitioner recalled that since the Federation, the Government of Pakistan, has
issued and promulgated the GB Order, 2009 in the territories of GB, the Government
of Pakistan has, in effect, acknowledged the territories of GB as the territories and
part of Pakistan and, therefore, this august court shall have every jurisdiction to
exercise its jurisdiction under the Constitution with respect to the areas/territories of
GB.
- Furthermore, the petitioner contended that as the Gilgit-Baltistan (Empowerment and
Self Governance) Order, 2009 (the “GB Order, 2009”) is not a legislation done by the
parliament under the Constitution of Pakistan 1973, therefore, the said GB Order 2009
is not a law, hence, both the forums are not the courts of law as are given, provided
and defined under the law and the Constitution of Pakistan 1973, therefore, no judicial
order, direction, writ or judgment can be passed/ issued by the aforesaid forums
against the petitioner.
- The petitioner prayed the apex court to permanently restrain both the forums from
passing any judicial/authoritative order/direction/writ/judgment against it, particularly
in the matters requiring judicial scrutiny by the courts of law and Constitution and no
trial of the petitioner, of whatsoever nature, can take place by/in the forums, namely,
the Supreme Appellate Court, Gilgit-Baltistan, and the Chief Court, Gilgit-Baltistan
and any such trial/proceedings by the aforesaid forums is against the provisions of
Article 4 and 10-A of the Constitution of Pakistan, 1973.

 summarily it's that the status of courts in GB is diff from that of regular courts of law in
Pakistan. He says this is cus GB is governed through an SRO and GB courts have been
established under that SRO only. Therefore, these courts are not "courts of law" under our
const. and thus they can only issue directions to GB govt and GB institutions, but not to any
entity anywhere else.

Kashmir and the Gilgit Baltistan 

GB is a part of Kashmir – it is still not a province of Pakistan, doing so would undermine
Pakistan’s stance on the Kashmir issue.

Gilgit wasn’t given a provincial status – the 2009 order proposed fundamental rights and
right to self-government
2009 order – there would be a council introduced which would give the right to autonomy,
but they weren’t given constitutional rights as much

2018 Order - All the powers of council were given to the legislative assembly (the chairman
of the council was the PM) – all the orders were made without the consultation of the
governors etc and gave supreme authority to the PM.

The people of GB had issues that the PM (of Pakistan) were controlling GB. There was
retaliation from the citizens of GB.

Courts of GB – the supreme appellate court

-what were the conditions for being a judge as you mentioned that these conditions were in a
way that it accounted for mostly Pakistani judges?
 conditions were that must have been a judge for 15 yrs or served in the HC

Grievances of GB:
- Can’t buy land in GB - eg: Luxus Grand hotel where despite the fact that the person
who bought the land of hotel is on paper a resident of GB, but it is indirectly
controlled by the people from other affluent of areas of Pakistan.
- Can’t take advantage of tourism  environmental consequences
- Lack of communication b/w GB and the rest of Pakistan
- Laws don’t extend in GB – which has impact on the structural outlook of GB.