BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN





C.P. No. ________ / 2012


Gilgit Baltistan Chief Court Bar Association through its Vice President, Mr. Wazir Farman Ali, Advocate, Gilgit-Baltistan Chief Court Bar Association Office, Konodass, Gilgit, Gilgit-Baltistan..

…    PETITIONER

Versus

1.    Federation of Pakistan through Secretary, Ministry of Law and Justice, Human Rights, Government of Pakistan, Islamabad.

2.    Chairman, Gilgit Baltistan Council, Prime Minister’s Secretariat, Islamabad.

3.    Ministry of Kashmir Affairs and Gilgit-Baltistan Division, through Secretary, Ministry of Kashmir Affairs and Gilgit-Baltistan, Islamabad.

…    RESPONDENTS



PETITION UNDER ARTICLE 184(3) OF THE CONSTITUTION OF PAKISTAN, 1973


Respectfully Sheweth,


1.    That the Petitioner is a representative body of advocates of Gilgit-Baltistan Chief Court (“the Chief Court”) and has a strong interest in the administration of justice and enforcement of fundamental rights in Gilgit-Baltistan. The instant Petition is filed on behalf of the Petitioner through its Vice President, Wazir Farman Ali, Advocate, who is duly authorized to represent the Petitioner before the Honourable Supreme Court of Pakistan. The resolution of the general body and cabinet of the Petitioner is placed herewith as Annexure A and Annexure A/1.

2.    That the territory of Gilgit-Baltistan is a part of Pakistan under Article 1(2)(d) of the Constitution of Pakistan, 1973 and the people of Gilgit-Baltistan enjoy all the fundamental rights and liberties provided by the Constitution of Pakistan, 1973 to the people of Pakistan. The Constitution of Pakistan, 1973 is fully applicable in the territory of Gilgit-Baltistan and Federal Government cannot act under any circumstance in a manner contrary to and not provided for by the Constitution of Pakistan, 1973.

3.    That the President of Pakistan was pleased to institute the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 (“GB Order, 2009) under Article 258 of the Constitution of Pakistan, 1973 with the declared objective to introduce administrative, political, financial and judicial reforms in the Northern Areas of Pakistan. Amongst other measures, the GB Order, 2009 also introduced a Supreme Appellate Court as the apex appellate authority in Gilgit-Baltistan with vast judicial powers.

4.    That the GB Order, 2009 failed to provide an appointment and tenure system for the judges of Supreme Appellate Court conducive for establishment of an independent judiciary and development of rule of law in Gilgit-Baltistan.  As per Article 60(5) of the GB Order, 2009, the Chief Judges and the Judges of the Supreme Appellate Court were to be appointed by the Prime Minister of Pakistan in his capacity as the Chairman of the Gilgit-Baltistan Council on advice of the Governor of Gilgit-Baltistan. Article 60(6) of GB Order, 2009 provides the requirements for persons who can be appointed as judges of the Supreme Appellate Court. Under Article 60(8) of the GB Order, 2009, the judges of Supreme Appellate Court shall be appointed for a term not exceeding 3 years. While the age of retirement for the Chief Court judges is 62 years according to Article 69 of the GB Order, 2009, the retirement age for the judges of the Supreme Appellate Court is not specified as they are appointed on basis akin to “contractual employment” of 3 years by the Council of Chairman on advice of the Governor of Gilgit-Baltistan.

5.    That the people of Gilgit-Baltistan are aggrieved of the contractual employment system for the judges of the Gilgit-Baltistan Supreme Appellate Court. In the light of the popular dissatisfaction, the Gilgit-Baltistan Legislative Assembly was pleased to pass a unanimous resolution on 16 September, 2011 expressing the will of the people of the Gilgit-Baltistan to have an independent and free judiciary in their territory. The Gilgit-Baltistan Legislative Assembly resolved that the Judges of the Supreme Appellate Court should be appointed in a manner similar to the appointment of Judges in the Supreme Court of Pakistan and Supreme Court of Azad Jammu & Kashmir. The resolution further stated that the three years contractual appointment of Judges is not only a burden on the exchequer due to the payment of the pensions and other privileges for Judges who are appointed to the Court for a short duration but also amounts to keeping the judiciary under permanent control of the executive. The Legislative Assembly stated that a free and fair judicial system cannot be established if the Judges are appointed for a short contractual duration of three years. Resolution of the Gilgit-Baltistan Legislative Assembly is placed herewith as Annexure-B.

6.    That the legal fraternity in Gilgit Baltistan also protested strongly against the GB Order, 2009 for failing to uphold the constitutional protections necessary to establish a strong and independent judiciary in Gilgit-Baltistan. Gilgit-Baltistan Chief Court Bar Association passed a resolution against the contractual appointments of Judges of the Supreme Appellate Courts. The Chief Court Bar also stressed that local citizens of Gilgit-Baltistan should be appointed as Chief Judge and Judges of the Supreme Appellate Court. Additionally, the Petitioner also demanded that the prevailing practice of appointing retired judges from other parts of the country with no relation with the Gilgit-Baltistan should be done away with. Furthermore, the majority members of the Supreme Appellate Court Bar Association also passed a resolution for establishment of an independent judiciary in Gilgit-Baltistan with Judges having a regular retirement age of 65 years, as provided in Article 179 of the Constitution of Pakistan, 1973 and Article 42(7) of the Constitution of Azad Jammu & Kashmir, 1974, and which is free from the influence of the executive. The majority members of the Supreme Appellate Court Bar Association also expressed their confidence in the members of the judiciary from Gilgit-Baltistan and disassociated itself from the application and concise statement filed by Malik Haq Nawaz in the Constitutional Petition No. 63/2011. The resolution passed by the lawyers of Gilgit-Baltistan Supreme Appellate Court Bar Association is placed herewith as Annexure-C.

7.    That a Constitutional Petition No. 63 / 2011 was filed in the Honourable Supreme Court of Pakistan under Article 184(3) of the Constitution by Dr. Ghulam Abbas, Chairman of Gilgit Baltistan National Movement. In the said Constitutional Petition, Petitioner that practice of appointment of retired judges from the Courts of Pakistan to the Supreme Appellate Court to be ultra-vires to the Constitution of Pakistan. The Petitioner in C.P. No. 63/2011 also prayed that judges of the Supreme Appellate Court shall be retired at the age of 65 years. The Petitioner further requested the Honourable Court to strike down Article 60(5), (6) and (8) of G.B. Order, 2009 as being unconstitutional.

8.    That the GB Order, 2009 is passed by the President of Pakistan under Article 258 of the Constitution of Pakistan, 1973. Article 258 of the Constitution of Pakistan, 1973 authorizes the President of Pakistan to make an Order “for peace and good government of any part of Pakistan not forming part of a Province” subject to the Constitution of Pakistan and until the Parliament has not passed a law that provides otherwise. The President of Pakistan is constitutionally required to adhere to the provisions of the Constitution of Pakistan, 1973 in passing an Order under Article 258 of the Constitution of Pakistan, 1973. As the Honourable Supreme Court of Pakistan is the custodian of the Constitution of Pakistan, 1973 and has the ultimate authority to interpret the Constitution, the Honourable Supreme Court has the power to ensure that the orders passed by the Federal Government of Pakistan, including those passed under Article 258 of the Constitution of Pakistan, 1973, are in consonance with the provisions of the Constitution. The Federal Government cannot abridge the constitutional powers of the Honourable Court by instituting any order or a legislative instrument.

9.    That the people of Gilgit-Baltistan enjoy the fundamental rights enshrined in the Constitution of Pakistan, 1973 as citizens of the country. The fundamental rights can only be available to people of Gilgit-Baltistan through an independent and impartial judicial system which is free from the influence of the executive. As the judiciary is guardian of the rights of the citizens of Pakistan, Article 175 of the Constitution of Pakistan, 1973 requires that the judiciary is separated from and is free from any influence of the executive. Contrary to the requirements of the Constitution of Pakistan, 1973, Article 60(6) of the GB Order, 2009 renders the judges of Supreme Appellate Court amenable to the whims of the executive and provides for no institutional independence to the apex appellate forum in Gilgit-Baltistan. Consequently, not only an independent judicial system is absent in Gilgit-Baltistan, but the fundamental rights and access to justice guaranteed by the Constitution of Pakistan, 1973 are denied to the people of Gilgit-Baltistan.

10.    That the Government of Pakistan is discriminating against the people of Gilgit-Baltistan by the providing of a judicial system which is susceptible to control and influence by the executive. GB Order, 2009, in violation of the Constitution of Pakistan, 1973, does not provide for any security of tenure for the judges till a retirement age of 65 of the Supreme Appellate Court. Furthermore, there is no non-uniform retirement age for the judges of the Supreme Appellate Court. Since the people in the rest of the country have recourse to an independent judiciary for enforcement of their constitutional rights and an independent judicial system is absent in Gilgit-Baltistan, the GB Order, 2009 is clearly discriminatory towards the people of Gilgit-Baltistan.

11.    That the promulgation of GB Order, 2009 does not affect the jurisdiction of the Honourable Supreme Court of Pakistan under Article 184(3) of the Constitution of Pakistan, 1973 to pass an order where it considers a question of public importance with reference to enforcement of fundamental rights is in issue. The Honourable Supreme Court of Pakistan has the authority to ensure that the orders made pursuant to the Constitution of Pakistan, 1973 do not violate the fundamental rights of the citizens of the country and comply with the provisions of the Constitution of Pakistan, 1973. While GB Order, 2009 grants the Supreme Appellate Court with original and appellate jurisdiction, the Honourable Supreme Court of Pakistan has plenary powers under the Constitution of Pakistan, 1973 which cannot be taken away by a legislative instrument or an executive order.

12.    That the question raised by the instant petition is of great significance for the development of rule of law and establishment of independent judiciary in Gilgit-Baltistan. The instant petition raises important questions of public importance dealing with the dispensation of justice to the entire population of an important region of Pakistan. By establishing 3-years tenure for the judges of the Supreme Appellate Court of Gilgit-Baltistan, the GB Order, 2009 has granted the executive the room to influence the judiciary in Gilgit-Baltistan. Therefore, the GB Order, 2009 has created a situation inimical to enforcement of fundamental right and has denied the right of access to justice to the people of Gilgit-Baltistan.

In view of the foregoing, it is respectfully prayed that Articles 60(5), (6) and (8) may kindly be held as ultra-vires the Constitution of Pakistan, 1973 and the Respondents may be directed to make appropriate orders to provide for an independent and impartial judiciary in Gilgit-Baltistan, as guaranteed by the Constitution of Pakistan,1973.

    Any other order deemed to be just and fair in the circumstances of the matter before this Honourable Court may also kindly be made.





DRAWN BY:                                FILED BY:





SALMAN AKRAM RAJA                 ____________________________
M.A. (Cambridge), LL.M (London)            ADVOCATE-ON-RECORD
LL.M (Harvard)
Advocate Supreme Court of Pakistan