Thanks to a host of political and legal reasons there are territories which, despite being part of Pakistan for most intents and purposes, remain in a constitutional limbo
Gilgit-Baltistan: In two minds
Every few years, the debate is repeated without any definitive conclusion: is Gilgit-Baltistan constitutionally part of Pakistan or not?
For the people of Gilgit-Baltistan (GB), there are two independence days every year: August 14, with the rest of Pakistan; and November 1, when they first found freedom. There is permanent confusion in GB, brought about by keeping the territory and its populace in a constitutional limbo regarding their status in the federation: is GB part of Pakistan or is it just a disputed territory?
GB’s modern history can be traced back to the 19th century. In 1846, after many wars and much bloodshed, GB was incorporated in the princely state of Jammu and Kashmir by the Dogras. GB comprised several independent princely states, and all of them now started paying revenue and taxes to the Dogra Raj. The Dogras had an army for the region too, called the Gilgit Scouts.
The Dogra Raj continued for a century, but 1947 spelled upheaval in South Asia and GB was not spared either. With two sovereign states being carved out of united India, GB found itself neither part of India nor part of Pakistan. Even though the Dogras still maintained control over GB after August 1947, their influence was on the wane.
The Dogras were dealt a final blow when a local commander of the Gilgit Scouts, a man named Colonel Mirza Hassan Khan, led a successful rebellion against the Dogra Raj. A government was formed thereafter, for the new Republic of Gilgit, whose president was Shah Raees Khan. Colonel Khan meanwhile became the chief of the Gilgit Scouts.
Also read: AJK opposes giving provincial status to GB
The new republic could only maintain itself for 16 days. Mohammad Ali Jinnah, the leader of Pakistan, was then approached and requested permission for Gilgit to join the Pakistan federation. This was an unconditional offer, which was duly accepted by Jinnah. Pakistan sent a political agent to Gilgit Agency, a man named Sardar Alam Khan, while the Frontier Crimes Regulation (FCR) was imposed as the law of the land. Even though the princely states stayed intact, Pakistan had taken over administrative control of Gilgit.
But while the people of Gilgit expected this accession to mean they were now citizens of Pakistan, this wasn’t entirely the case.
Ever since its accession to Pakistan, Gilgit’s fortunes became intertwined with those of Kashmir, even though the matters differed qualitatively. Gilgit’s was a straightforward case, having joined the Pakistani federation of its accord and without any conditions. Kashmir, meanwhile, was at the centre of a controversy over which country it was actually a part of, and whether Azad Kashmir was a legitimate territorial entity.
As the matter of Kashmir went to the United Nations in 1948 for resolution, so did the matter of Gilgit.
It was claimed by Pakistani authorities at the time that Gilgit, like Kashmir, was a disputed territory. Since both India and Pakistan were asking for a UN-conducted plebiscite in disputed areas, their calculation was that Gilgit’s people would vote in support of Pakistan and thus, swell the vote in favour of Pakistan. In one move, therefore, Kashmir and Gilgit would officially be part of Pakistan.
The UN advised both India and Pakistan to remove their armies from all disputed territories, so that a UN-supervised referendum could take place. Neither country was prepared to let go of territories under their control, and the matter went into cold storage.
On April 28, 1949, officials of Pakistan government met with those of Azad Jammu and Kashmir (AJK) government to ink the Karachi Agreement. Under this accord, it was agreed that the affairs of Gilgit would now be run by the government of Pakistan rather than the AJK government. A separate ministry was created by the Pakistan government too; the federal ministry of Kashmir Affairs and Northern Areas was to run Gilgit and adjoining areas. No leader from Gilgit was included in this agreement, and a handover of power took place without the consent of the people of Gilgit.
Matters continued in the same vein till 1970, when a single administrative unit was carved out of Gilgit Agency, the Baltistan region, and the former princely states of Hunza and Nagar.
In 1972, Prime Minister Zulfikar Ali Bhutto visited the area and promptly announced the abolition of all princely states. A representative body was formed, named the Northern Areas Advisory Council. This was an 18-member body that was chosen through direct elections and was to be headed by a commissioner.
When General Ziaul Haq assumed power, he promised representation for the Northern Areas in his Majlis-i-Shoora. But all talk came to naught, as only two members could be sent to the Shoora from the Northern Areas, and that too as observers / ex-officio members.
In 1988, Prime Minister Benazir Bhutto again made changes to the laws governing the Northern Areas. A new body, called the Northern Areas Council, was duly formed. In her second tenure, Benazir introduced the Legal Framework Order (LFO)-1994, which turned the Northern Areas Council into the Northern Areas Legislative Council. The leader of the house of this body was the deputy chief executive, while the minister of Kashmir Affairs and Northern Areas served as chief executive.
The Northern Areas Legislative Council only had limited legislative powers. Even though it was handed 49 subjects, all of these were local governance decisions: local taxes, irrigation, out-of-court settlements, among others. More substantive powers arrived, ironically, with a dictator.
In 1999, as General Pervez Musharraf was settling in, the Northern Areas were seeing yet another legislative assembly complete its term. In fact, irrespective of political developments in mainland Pakistan, democratic processes remained intact in the Northern Areas. Another set of elections took place in 2004, after which Gen Musharraf visited the region in 2006.
As part of his changes, the General made sweeping changes to the LFO. Greater fiscal responsibility was handed to the Northern Areas government and a new post of principal accounting officer was created. The Northern Areas Legislative Council turned into the Northern Areas Legislative Assembly, with the number of subjects it exercised control over increased to 61. The leader of the house was now the chief executive, while the minister of Kashmir Affairs and Northern Areas became the chairman of the legislative assembly.
The most significant change made by Gen Musharraf was granting the Northern Areas Legislative Assembly the right to amend the LFO. In an irony of sorts, the new democratic government of Yousuf Raza Gilani withdrew these powers when they unveiled their package for the Northern Areas.
In fact, Gilani’s government — in an attempt to prop support for their party — sought to bring about wide-ranging political reforms. The rationale was that in order to win a mandate in the Northern Areas, these reforms needed to be instituted before the 2013 elections. This package was named the “Gilgit-Baltistan Empowerment and Self-Government Order (GBESGO)-2009”. It came directly as a presidential order rather than an act of parliament.
Unveiling the reforms package on September 8, 2009, Prime Minister Gilani did away with the term “Northern Areas” and replaced it with “Gilgit-Baltistan.” This was a long-standing demand of the people, since northern areas merely denotes a direction rather than describe a people or their land. Moreover, the region’s tourist economy was being shrunk due to its location being confused with terror-infested Fata. A change of name thus served to rebuild the image of the region too.
Under the new law, the chief executive was now the chief minister, while there was also provision for a federally-appointed governor. Advisors in the legislative assembly were now ministers.
The GB Council was now comprised 15 members, six of whom were elected from the GB Legislative Assembly while the rest were elected members from Pakistani assemblies. The prime minister was the council chairman, while the minister of Kashmir Affairs was the deputy chairman. Meetings of this body were to be mostly held in Islamabad. The GB Council was to serve as the upper house of parliament; legislation pertaining to tourism, minerals, forests, as well as water and power all rested with the Council.
Despite these changes, reservations remained among the local GB populace over what they perceived to be a skewed balance of power. Not only was the right to amend the LFO taken away from them, for example, but the Council was handed greater powers than the GB Legislative Assembly and most important decisions were to be made by them. But this body was dominated by federal representatives rather than local ones, many of their agendas were not to benefit the local populace but to maintain their control over governance.
The central issue for the populace of Gilgit-Baltistan remained the same: is their area officially part of Pakistan and are they now legitimate Pakistani citizens?
In unveiling the new laws, PM Gilani had used the word “autonomy” for GB, but in truth, GB is still a disputed territory. Even as the Gilani-government started discussions to frame the new law, the advice they sought was from the ministry of Kashmir Affairs and Northern Areas, rather than local GB representatives.
For the people of GB, it was clear that the ministry of Kashmir Affairs and Northern Areas would not provide any advice that would compromise its hold over power in GB. The ministry has been used directly or indirectly to curtail people’s rights in GB; the status quo did not change despite Gilani’s new laws. GB still cannot claim a share in the National Finance Commission (NFC) Award, for example.
Then there is the question of whether GB laws are applicable in Pakistani courts. Last year, an anti-terrorism court in GB sentenced a media mogul to 26 years in prison in a case pertaining to blasphemy. But the decision could not be implemented because GB law had no jurisdiction in Pakistan.
Amidst such confusions, peaks such as K-2 or heroes such as Lalik Jan Shaheed (Nishan-i-Haider) are claimed as Pakistani even though they are from GB. Local wisdom dictates that when it suits Pakistan, GB is a formal part of the country; and when it suits Pakistan to show GB as a disputed territory, it is shown as that.
This year too, the people of GB will once again celebrate two independence days — one for their homeland and the other for a country that refuses to fully accept them.
FATA: In a black box
In FATA, the FCR supersedes the Pakistani constitution
By Zulfiqar Ali
When it comes to the so-called ‘tribal areas’, successive Pakistani governments have merely adopted and reinforced British colonial laws aimed at controlling the local population.
In 1867, the Murderous Outrages Regulation was enacted in British India to give the government additional powers to prosecute serious crimes such as murder. It was re-enacted in 1873 with minor modifications, and again in 1877 as the “Ghazi Act” for its use in the Pakhtun-inhabited frontier districts.
The regulation was found to be inadequate to contain Pakhtun opposition to British and government rule, and so, new acts were added to it from time to time. The regulation took their present form primarily through the Frontier Crimes Regulation (FCR) of 1901. In 1947, the government of Pakistan added the clause that residents can be arrested without specifying the crime.
The FCR permits collective punishment of family or tribe members for crimes of individuals. It permits punishment to be meted out by unelected tribal jirgas and denies the accused the right to trial by judiciary. Tribal chiefs can also be held responsible for handing over suspects charged by the federal government without specifying an offence. Failure to comply can make the tribal chiefs liable for punishment. Human rights activists and the superior judiciary argue that the regulation violates basic human rights.
The regulation denies those convicted of an offence by a tribal jirga the right to appeal their conviction in any court. It gives the federal government the right to seize private property in Fata and to convict an individual without due process. It lets the government restrict the entry of a Fata tribe member into a settled district in the rest of Pakistan.
The discriminatory provisions of the regulation, both substantive as well as procedural, are in violation of the Constitution of Pakistan. Take for example the selection of jirga members (section 2), trial procedure in civil/criminal matters (sections 8 & 11), demolition of and restriction of construction of hamlet, village or tower in the North-West Frontier Province (section 31), method of arrest/ detention (section 38 & 39) security for good behaviour (sections 40, 42), or even the imposition/collection of fine (sections 22-27).
The FCR denies tribal residents the right to be dealt with in accordance with the law; the security of person; safeguards to arrest and detention; protection against double jeopardy or self- incrimination; the inviolability of the dignity of man; prohibition of torture for the purpose of extracting evidence; protection of property rights; and the equality of citizens.
Other articles of the Constitution of Pakistan, such as Article 247, ensure that FATA residents cannot overturn the FCR.
In August 2011, President Asif Ali Zardari enacted a presidential order to amend the FCR. Widely viewed as the most substantive changes in the 110-year history of the regulation, the reforms included new time limits on the amount of time local administration officials can wait before informing that they have taken someone prisoner. In addition, the 2011 amendments placed new restrictions on the collective responsibility clause in the regulation.
According to the FCR despite the presence of elected tribal representatives, the Parliament of Pakistan can play no role in the affairs of FATA.
Article 247 of the Pakistani Constitution provides that no Act of Parliament applies to FATA, unless the President of Pakistan provides consent. Only the President is authorised to amend laws and promulgate ordinances for the tribal areas. The elected representatives thus have no say in administration of FATA. It also repeals the jurisdiction of Pakistan’s courts over FATA. By inference, this also limits the application of fundamental rights to FATA.
Article 247 and the Federal Crimes Regulation have been condemned by several jurists. Late Chief Justice of the Supreme Court, Justice Alvin Robert Cornelius, said that the FCR is “obnoxious to all recognised modern principles governing the dispensation of justice” in the case of Sumunder vs State (PLD 1954 FC 228).)
After taking a unanimous vote of confidence on March 29, 2008, then Prime Minister of Pakistan, Yousaf Raza Gilani, expressed his government’s desire to repeal the FCR. However, no progress has been made on overturning the regulation.
AJK: Asking for the moon
Constitutional confusion has a detrimental effect on governance
By Tariq Naqash
After its liberation in October, 1947, the 13,297 sq km territory of Azad Jammu and Kashmir (AJK) remained without a proper constitution for over two decades. However, as it draws close to the 68th anniversary of liberation, the region still remains at the crossroads in its struggle for constitutional reforms aimed at empowering the government and institutions for the benefit of the public at large, to which they are answerable and accountable.
At the same time, there have also been serious voices calling for reshaping the region’s relationship with Pakistan albeit as a provisional arrangement until the final disposition of the entire state of Jammu and Kashmir.
On October 24, 1947, a ‘revolutionary’ government was installed in this territory as Azad Government of the State of Jammu and Kashmir, with Sardar Mohammad Ibrahim Khan as its founding president.
According to the United Nations Commission for India and Pakistan (UNCIP) Resolution of August 13, 1948, the territory of AJK is to be administered by the “local authority” under the Commission’s scrutiny.
Although the liberated territories of the State are not expressly named in the Constitution of Pakistan, it states that Pakistan’s territories include “such States and territories as are or may be included in Pakistan, whether by accession or otherwise.”
Though both AJK and Gilgit-Baltistan are territories “otherwise included” in Pakistan under the UNCIP Resolutions, Pakistan has however always treated the State of Jammu and Kashmir as a disputed territory, and that’s why the liberated territories of the erstwhile princely state are not declared as part of the Federation of Pakistan.
This is also why Article 257 of the Constitution of Pakistan states that “when the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.”
Experts say that it also suggests, inter alia, that AJK should have a government enjoying internal autonomy.
Nevertheless, for a long time the affairs of AJK were practically run by the ministry of Kashmir affairs, which was established in March 1949. There was no proper constitution and no democracy, and even though the region used to have a President it was in effect the ministry of Kashmir affairs that called the shots. The ministry would nominate AJK president (chief executive) on the “recommendation” of the working committee of Muslim Conference, then the sole political party on this side of the divide. The removal of the president was also done apparently in line with the recommendation of the same forum.
Basharat Ahmed Shaikh, a retired judge of the AJK Supreme Court, recalls that in the early days of AJK, even demanding better treatment for its citizens or equal salaries for its officials, or asking a better physical infrastructure, was considered an anti-state activity.
“A pamphlet written by me in 1964, merely inviting the attention of concerned quarters drew the wrath of the Pakistani authorities so much so that I was incarcerated in the infamous Dalai interrogation centre for several months,” he recalls.
However, the situation started improving in the late 1960s and early 1970s as the AJK people and their leadership continued their struggle for a proper constitution and governance setup.
The first formal Constitution was drafted in 1970 and is commonly referred to as Act 1970. It was under the same constitution that presidential and Legislative Assembly elections were held for the first time on the basis of adult franchise.
All executive powers and the corresponding legislative powers were vested, respectively, in the President and the Legislative Assembly except in respect of defence and security, currency and the external affairs. The Assembly was also empowered to amend the said Act.
In 1971, the Assembly affected an amendment in that Act, without having to seek prior permission of the government of Pakistan, and gave fundamental rights to the people, writ jurisdiction to the High Court and established an Apex (appellate) Court.
Not only were the powers to appoint judges to the superior courts vested in the AJK President, the subjects of foreign trade and foreign aid were also in the domain of the AJK government, raising the profile of its internal autonomy.
However, in 2015, 45 years after the promulgation of Act 1970, the region faces retrogression to post-1970 days, thanks to the Interim Constitution Act, 1974 that is in force today.
The new Constitution introduced a parliamentary form of government, but drastically curtailed the powers of the government in Muzaffarabad.
“There is no denying the fact that Act 1974 reversed the progress towards empowerment of the people and their government in this territory,” says senior lawyer Raza Ali Khan, also a former president of AJK Supreme Court Bar Association.
And there are good reasons to subscribe to his notion.
Under the Act 1974, a new institution was established by the name of AJK Council “to serve as a bridge” between the governments in Muzaffarabad and Islamabad.
Prime Minister (chief executive) of Pakistan heads it as chairman, while the Federal Minister for Kashmir affairs happens to be its in-charge minister.
Practically this institution has besmirched the representative character of the AJK government by divesting it of many powers that it enjoyed under the previous constitution.
For example, the Council has powers to legislate about 52 subjects. The AJK Department of Inland Revenue, AG Office and the Directorate General of Audit fall under the administrative control of Council. Besides, it enjoys authoritative role in the appointment of AJK high and supreme courts judges and the chief election commissioner.
The Council comprises six members elected by the AJK Legislative Assembly and as many nominated by the chairman (Pakistani prime minister) from the Parliament of Pakistan. The elected members are toothless as far as functions of the Council are concerned, because all powers are vested in the chairman, most of which are exercised on his behalf by the federal minister in charge.
Ironically, neither the chairman nor the in-charge minister is answerable to the AJK institutions, because none of them takes oath under the AJK Constitution that grants them these positions.
“The Prime Minister of Pakistan exercising full authority in AJK is a violation of the Constitution of Pakistan,” maintains retired justice Shaikh.
“I have been actively associated with the Pakistan Movement since the age of 11 years. I still look up to Pakistan with the same reverence, but this does not change the fact that the Prime Minister of Pakistan is not the representative of the people of AJK; nor is he answerable to them: he is not even responsible to the institution he is heading as chairman,” he adds.
The Council retains 20 per cent of the income tax generated from the AJK territory as well as entire license fees collected from the telecom companies operating in AJK. The remaining 80 per cent of income tax is given to the AJK government as a grant.
There has always been a lot of hue and cry against alleged corruption in the Council, but that has always turned out to be a cry in the wilderness. Neither the people at the helm in Pakistan nor the otherwise hawkish media has ever bothered to take stock of this.
“The overwhelming feeling among the Kashmiris is that the Council is drastically hampering the ability of the elected government in Muzaffarabad to take key decisions regarding finance, public policy and socio economic development,” says Tariq Masud, a former bureaucrat who now heads a nongovernmental organisation — Centre for Peace, Development and Reforms (CPDR).
“Equipping the AJK Council with legislative, executive and financial powers is by no means justified or warranted. The way this institution controls important subjects has marginalised the powers of AJK government over the area’s affairs,” he maintains.
“In fact, it leaves AJK with little autonomy or status.”
In October 2009, the then Prime Minister Syed Yousuf Raza Gilani announced in Muzaffarabad to constitute a committee to review and suggest long due reforms in Act 1974. But the announcement did not see the light of the day despite reminders from here.
Meanwhile, with the passage of 18th and 19th constitutional amendments in Pakistan that handed more authority to provinces in their resources, AJK hopes were rekindled regarding empowerment of the region and its institutions on the same pattern.
However, people are yet to see any glimmer of light at the end of the tunnel.
In January 2011, CPDR held a first formal roundtable of stakeholders from all shades of society for an appraisal of the existing arrangements between Muzaffarabad and Islamabad and deliberations on the possible constitutional reforms.
“In fact people believe and rightly so that the existing interim Constitution has undermined the status of the AJK government, virtually rendering it as an ineffective and impotent body with no executive powers,” maintains analyst Ershad Mahmud, also an office bearer of CPDR.
In mid-2012, the then federal minister for Kashmir affairs Mian Manzoor Wattoo invited Kashmiri leadership for an inconclusive “discussion” on constitutional reforms and around same time a special parliamentary committee was also constituted by the AJK government to recommend suitable reforms.
The committee, including eight members from the Assembly and one from the Council, tabled its “recommendations for the amendments” in the Assembly on June 23 this year, almost three years after its formation.
Though the recommendations are not ideal in the eyes of many, at least they address some of the concerns, as they include, among other things, transfer of all powers, currently exercised by the AJK Council, to the AJK government, except for the responsibilities of Pakistan government under the UNCIP resolutions.
However, as the saying goes there are many a slip twixt the cup and lip.
On June 24, Matloob Inqilabi, AJK minister and head of the committee, told media that the recommendations were approved by the Assembly and forwarded to the AJK Law Department to be presented in the Assembly in shape of a bill.
But so far there seems to be no progress, mainly because of restrictions in the Act on making amendments about the issues related to the government of Pakistan.
Section 33 of Act 1974 says (though) the provisions of this Act can be amended, but no amendment can be made in section 33, section 31 and section 56 ‘without prior approval of the government of Pakistan.’
Section 31 restricts the Assembly and Council from making any law concerning the responsibilities of the government of Pakistan under the UNCIP Resolutions; the defence and security of AJK; the current coin or the issue of any bills, notes or other paper currency; or the external affairs of AJK including foreign trade and foreign aid.
Whereas section 56 says that nothing in Act 1974 shall derogate from the responsibilities of the government of Pakistan in relation to the matters specified in section 31 or prevent the Government in Pakistan from taking such action that it may consider necessary or expedient for the effective discharge of those responsibilities.
The AJK law department itself appears to be at sixes and sevens on the issue.
“Since the recommendations were made by the committee comprising members of both houses, it should have been endorsed by the joint sitting,” maintains law secretary Idrees Abbasi.
“However, we have prepared the draft bill, which will be sent to the cabinet for a decision,” he adds. “After that the bill will be sent to the government of Pakistan, through the ministry of Kashmir affairs, for its approval. Only after that approval, it can be tabled in any of the two houses,” says Abbasi.
And that stage seems to be about who’ll bell the cat.
“Since the recommendations by the parliamentary committee fetter the arbitrary powers of the prime minister of Pakistan and federal minister, no wonder the government in Muzaffarabad is bereft of the hardihood and determination to actualise the common desire for constitutional reforms,” says lawyer Raza Ali Khan.
“Those who are running a parallel government in AJK from Islamabad through the AJK Council, spending and squandering the resources of Kashmiris without any fear of accountability, would never let this move succeed,” he adds.
One school of thought believes that the stumbling blocks to constitutional reforms in AJK actually stem from region’s non-representation in Pakistani institutions.
Syed Manzoor Hussain Gillani, a former acting chief justice of the AJK Supreme Court, leads this school of thought from the front.
“The government of Pakistan should ensure full-fledged constitutional, political and representational rights to the people of the liberated territories of the State of Jammu and Kashmir on the pattern of other provinces,” he pleads, referring to AJK and GB.
Administered by Pakistan, these liberated territories (AJK and GB) are subject to all the liabilities and duties of a province, but not entitled to the rights of a province, guaranteed to the four provinces by the Constitution of Pakistan, he regrets.
“It is the future status of these territories that is in dispute, and not the rights of the territories and the people living therein.”
From the platform of his Association for the Rights of People of Jammu and Kashmir (ARJK), Mr Gillani stresses that AJK and GB should be given de-facto status of a province with provisional representation in the Parliament and institutions established under the Constitution of Pakistan, such as the Council of Common Interests (CCI), National Economic Council (NEC) National Finance Commission (NFC) and Indus River System Authority (IRSA), etc.
Interestingly, in its manifesto for the 2013 general elections, PML-N had declared that it technically considered AJK and GB as provinces, equal to Punjab, Sindh, KP and Balochistan.
In the same context, it had pledged that the functions, responsibilities and financial powers of AJK and GB will be gradually brought at par with the provinces and their legislative assemblies will be empowered.
However, more than two years on, Prime Minister Nawaz Sharif has not found time to honour that commitment, even though Raja Farooq Haider, his party’s president in AJK, has always vociferously opposed the Council in its present form.
The status quo is multiplying frustration in the region.
“If Pakistan is our elder brother, as we hear most of the time, it should feel contented with our empowerment, at least on a par with its federating units if not more than them … After all we are not crying for the moon,” says analyst and civil society activist Khizar Hayat Abbasi.
“At the moment, we are being made to believe that the vested interests in Islamabad are hell-bent on perpetuating the status quo — to continue to keep us impuissant and dependent.”
Published in Dawn, Sunday Magazine, August 9th, 2015