The Gilgit Baltistan region of Pakistan is governed by the Gilgit Baltistan Order of 2018[1] which replaced the Gilgit Baltistan Empowerment and Self-Governance Order of 2009. The 2018 presidential order, however, has many issues. Primary among them being the fact that it was not formulated with the consultation of locals from the region and further that it enjoys complete immunity from any possible amendments by the local Legislative Assembly or the superior courts of GB. This article discusses in detail these issues and the ways in which the legislation contributes to discord between the federal government and the region. It further concludes with recommendations as to how the region should be governed arguing for amendments in these laws, greater amounts of self-administration, and more local involvement in all aspects of governance.
Controversial Citizenship Clause
The Gilgit-Baltistan Order of 2018 ultimately fails to establish a legal relationship between the region of GB and the state of Pakistan and this lack of constitutional and legal recognition is the basis of all other issues regarding the rights of the region. The Order was met with widespread protests with many claiming it was a step back from the previous Order of 2009 and for being State-centric.[2] One of the most criticised aspects of the Order of 2018 was how it defined a ‘citizen’. The Order, unlike previous orders, defines the citizens of Gilgit Baltistan as follows.
“Citizen’’ means a person who has a domicile or resident of Gilgit-Baltistan and who is a citizen under the Pakistan Citizenship Act, 1951 (II of 1951)[3]
This clause is problematic as it means that a citizen of GB is anyone who is a citizen under the Pakistan Citizenship Act, 1951; therefore everyone from Pakistan can claim to be a citizen of the region.[4] The citizenship clause effectively weakens the rights of locals of GB in allowing non-locals to be citizens.
Ambiguity surrounding Fundamental Rights
The fundamental rights enshrined in the Order are limited in their scope. Part II of the Order containing fundamental rights is very restrictive and security-driven in its approach.[5] Article 9(1)(2) dealing with safeguards as to arrest and detention is especially problematic as it allows for detention of a person without a trial for up to three months.[6]Furthermore, Article 25, particularly Article 25(d), gives the State broad powers to determine the public interest needs of a property and accordingly take it under its control.[7] Article 64 further gives the State of Pakistan the right to acquire a property at the expense of the government of Gilgit Baltistan or even through direct transfer if the land belongs to the government of Gilgit Baltistan.
‘’The Government of Pakistan may, if it deems necessary to acquire any land situate in Gilgit-Baltistan for any purpose, require the Government to acquire the land on behalf, and at the expense, of the Government of Pakistan or, if the land belongs to the Government, to transfer it to the Government of Pakistan on such terms as may be agreed mutually.’’[8]
While the law provides for compensation for such property, it allows the State to determine how much compensation is paid without any judicial oversight over this appraisal.
Overriding Powers of the Prime Minister
Another critical aspect of the Order of 2018 which is problematic in its scope and interpretation is to do with the overriding powers of the Prime Minister. The order through Article 60(2) gives the Prime Minister the absolute authority to make laws.
‘’the Prime Minister shall have exclusive power to make laws with respect to any matter in the Legislative List’’[9]
Further Article 60(4) gives the Prime Minister of Pakistan the power to have an overriding effect in legislating matters primarily discussed or decided in the provincial legislative assembly.
“If any provision of an Act of Assembly is repugnant to any provision of 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”[10]
The legislative power given to thePrime Minister effectively reduces the role of the Legislative Assembly to that of a rubber stamp. This also extends to the right to direct in the name of strategic vitality or peace through article 62(2) and (3)
‘’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’’[11]
‘’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.’’[12]
In addition to such powers conferred to the Prime Minister, there are clauses which give room to the State to intervene if so consented to by the local government. Article 60(7) dealing executive powers reads as follows,
Notwithstanding anything contained in this Order, the Government may with the consent of the Federation entrust either conditionally or unconditionally, to the Federation, functions in relation to any matter to which the executive authority of the Government extends’’[13]
This is an issue given the region has been excluded from critical decision-making,[14] moreover, the State also continues its heavy involvement on matters relating to national projects based in Gilgit Baltistan region or passing through the region. Such exclusion may be detrimental to the socio-economic rights of the region and should not be mandated under the law.[15]
Judicial Ambiguity
The Order enjoys immunity from any possible amendments by the Legislative Assembly and from being challenged in the superior courts of GB. Article 117(2) renders it free from any sort of legal challenge. It reads as follows:
‘’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.”
Furthermore, another major concern of the region has been the appointment of non-local executives entrusted with the task of managing the region. There are local executives as well, however, key positions such as that of the Chief Secretary, Home Secretary and regional police chief have never been locals.[16] These positions, by their far-reaching influence, control the affairs of the region with a visible element of bias.[17] Discarding locals’ reservations, the Government of Pakistan through the Gilgit Baltistan Order 2018 has inserted a provision through Article 75(7) with regards the appointment of the Chief Judge of the region effectively blocking the way for a local to be Chief Judge.[18]The law reads as follows,
‘‘A person shall not be appointed as the Chief Judge of the Supreme Appellate Court of Gilgit-Baltistan unless he has attained the age of sixty-five years and,
- is a retired judge of the Supreme Court of Pakistan; or
- is a retired Chief Justice of a High Court under the Constitution of Islamic Republic of Pakistan.”
This effectively curtails the path of local judges to be considered for the evaluation to the post of Chief Judge as the Supreme Court and or High Courts in Pakistan have never had a judge from the Gilgit Baltistan region let alone having a Chief Justice. Further, this law is problematic if read together with Article 57 of the order which bars all sorts of discussion concerning the conduct of the judge.[19] The law reads as follows.
‘’No discussion shall take place in the Assembly concerning matters relating to foreign affairs, defence, internal security and conduct of any Judge in the discharge of his duties’’[20]
The law effectively bars any sort of oversight over these judges and their conduct which is all the more an issue given judges in the region have been known for their prejudiced treatment of local staff.[21] The appointment of the judges is, therefore, a contentious issue in the region.[22] In this regard, Article 21(2) of the law of the Special Legal Status of the Gagauzian passed by the parliament of the Republic of Moldova can serve as a precedent, which makes the appointment of judges contingent upon the consent of the local assembly. The articles dealing with the appointment of the judges reads as follows:
‘’judges of the judicial bodies of Gagauzia shall be appointed by a decree of the President of the Republic of Moldova on the recommendation of the People’s Assembly of Gagauzia, with the agreement of the Superior Council of Magistrates’’[23]
Such a process involving the consent of the local Legislative Assembly and regional Bar Councils in addition to removing the criteria of being a former judge of the Supreme or High Court is the way forward in establishing an impartial judiciary.
Recommendations
In light of the discussion above, these recommendations endeavour to improve the governance of Gilgit Baltistan in a way in which local voices are respected and its right to self-determination is honoured:
- The Government of Pakistan should base the Order of 2018 in the Constitution of Pakistan. The law, as it has been passed without such constitutional embedding, is contrary to the spirit of democracy. Therefore, the Government of Pakistan should initiate a constitutional amendment associating a conditional right to self-determination through self-administration to the region.
- Given the disputed nature of the region, the State should not make the citizenship clause all-inclusive as it risks a change in the demographics of the region. Therefore, the State should not extend the scope of Pakistan’s Citizenship Act in the Gilgit Baltistan region. For this, Part 1 of Introductory clause (b) of the Order should be amended and ‘citizen’ should be redefined to mean a person resident of Gilgit Baltistan region only.
- Any order with a conservative approach to fundamental rights like that of the Order of 2018 is problematic, therefore, the government should make every effort to make human rights enshrined in the Order devoid of any limiting principles. The legislative and executive authority and overriding capacity of the Prime Minister of Pakistan should be As a result, Articles 60(2), 60(4) and 60(7) of the Governance Order 2018 should be amended
- The government should not introduce criteria and requirements for the position of executives and judges which are practically impossible for locals to achieve. The government, therefore, should amend Article 75(7) of the Order and allow locals to become judges of the Superior Courts of GB.
The existing Gilgit Baltistan Order of 2018 in its existing shape does not address the grievances of the region. The Order requires fundamental amendments with a focus on empowering the region through a right to self-administration which honours its people and addresses their concerns.
Disclaimer:
The opinions expressed in the articles are those of the authors. They do not purport to reflect the opinions or views of the Research Society of International Law (RSIL), its editorial team, or its affiliated organizations. Moreover, the articles are based upon information the authors consider reliable, but neither RSIL nor its affiliates warrant its completeness or accuracy, and it should not be relied upon as such.
References
[1] Government of Gilgit-Baltistan Order, 2018
[2] ‘Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019’ (Office of the United Nations High Commissioner for Human Rights 2019).
[3] Gilgit Baltistan Order 2018.
[4] Muazzam Sabir, André Torre and Habibullah Magsi, ‘Land-Use Conflict and Socio-Economic Impacts of Infrastructure Projects: The Case of Diamer Bhasha Dam in Pakistan’ [2017] Area Development and Policy 15 p.
[5] Gilgit Baltistan Order 2018 pt II.
[6] Ibid art 9(1)(2)
[7] Gilgit Baltistan Order 2018 art 25(d), 64.
[8] ibid.
[9] ibid art 60(2).
[10] ibid art 60(4).
[11] ibid art 62(2).
[12] ibid art 62(3).
[13] ibid art 60(7).
[14] ‘China-Pakistan Economic Corridor: Opportunities and Risks’ (Crisis Group, 29 June 2018) <https://www.crisisgroup.org/asia/south-asia/pakistan/297-china-pakistan-economic-corridor-opportunities-and-risks> accessed 30 August 2019.
[15] ‘China-Pakistan Economic Corridor: Opportunities and Risks’ (n 134).
[16] Alok Bansal, Gilgit-Baltistan and Its Saga of Unending Human Rights Violations, Pentagon Press LLP (2018)
[17] Tribune.com.pk, ‘G-B Chief Secretary Snubs Man Demanding Health Facilities, Video Goes Viral’ (The Express Tribune, 11 June 2018) <https://tribune.com.pk/story/1732884/1-g-b-chief-secretary-snubs-man-demanding-health-facilities-video-goes-viral/> accessed 30 August 2019.
[18] Gilgit Baltistan Order 2018 art 75(7).
[19]Ibid art 57.
[20] ibid.
[21] Jamil Nagri | Malik Asad, ‘Judicial Crisis Erupts in GB after Lawyers, Judges Protest Action against Registrar’ (DAWN.COM, 19 July 2016) <http://www.dawn.com/news/1271703>.
[22] A Correspondent, ‘Lawyers Boycott Oath Taking Ceremony of GB Chief Judge’ (DAWN.COM, 1 September 2015) <http://www.dawn.com/news/1204194>.
[23] The Law on the Special Legal Status of Gagauzia(Gagauz-Yeri) art 21(2).
Very very interesting to read regarding this crisis.