The federal government has told the Supreme Court that any interpretation of the Gilgit-Baltistan (G-B) Order 2018 would be ultra vires and without jurisdiction while submitting a concise statement on Chief Minister Khalid Khurshid Khan’s constitutional petition that challenged the appointment as well as extension of superior courts judges of the region.
“It is manifest that any matter related to the territory of Gilgit-Baltistan or any matter requiring interpretation of the GB Order 2018 can only be done by the Courts of GB, which act as the Constitutional Courts of GB. Any interpretation of the GB Order 2018 by this Honorable Court would be ultra vires and without jurisdiction,” a statement submitted by additional attorney general in the apex court said.
Last year in September, CM Khan had filed a petition under Article 184(3) of the Constitution through senior lawyer Makhdoom Ali Khan and made the federal government, G-B governor and newly-appointed judge to the region’s chief court Javed Ahmed respondents.
Prime Minister Shehbaz Sharif had given an extension to three judges of the G-B Chief Court on September 16 following a summary moved by region’s Governor Syed Mahdi Shah.
However, the summary was initiated without consulting the chief minister.
The government states that the relevant Article 84(6) of Order 2018 is axiomatic that prime minister shall appoint the chief judge/judge on the advice of the governor and that the notifications were issued within the purview of the Article 84(6).
“The gist of the Petitioner (CM GB) that Governor was mandated to act according to the advice of Chief Minister pursuant to Article 34
is ill founded,” the statement said.
“The Petitioner has misconstrued the intent of the legislature. Article 34 is not the qualifying provision of Article 84 of the Order 2018. Hypothetically; for sake of garnering the intent and interpretation of the Petitioner, if the Governor ought to strictly act only on the advice of the Chief Minister, and Prime Minister to only act on such advice rendered by the Governor, in such eventuality, the de facto authority to determine the appointment of the Chief Judge/Judge would be
the Chief Minister while the Governor and the Prime Minister would merely be the stamping authority for the Chief Minister,” it added.
The statement said that “such eventuality was beyond the prudent interpretation” of the statute and the apparent intent of the legislature”.
“If the legislature’s intent was to compulsorily seek the ‘binding’ advice of the Chief Minister, the legislature would have simply incorporated this ‘pre-requisite’ within the provision of Article 84(6).
“For an analogy, Article 75(5) expressly mandates that the Chairman shall appoint the Judge of the Supreme Appellate Court GB on the advice of Governor after seeking views of the Chief Judge. The legislature intended that for the appointment of the Judge of Supreme Appellate Court GB, the views of Chief Judge be procured, therefore the provision was adequately incorporated.”
The statement noted that legislature would have included the pre-qualifying condition within the Article 84(6) if it intended that the governor act only on the advice of the chief minister.
It is also stated that Article 34 of the Order 2018 primarily related to the ordinary business of the government and was not the qualifying provision of Article 84.
The intention of the legislature is also evident by the fact that the Schedule IV-VII of the Gilgit Baltistan Rules of Business 2009 does not mandate the chief minister to render his advice on the matters of appointment of the judges nor they mandate the governor to seek such advice of the chief minister, the statement said.
A three judge bench of the apex court will resume hearing of the case on Wednesday (today).