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A constitutional conundrum

March 15, 2019

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The writer, a former IGP Sindh, belongs to Gilgit-Baltistan.
The writer, a former IGP Sindh, belongs to Gilgit-Baltistan.

AT the time of Partition, Gilgit-Baltistan acceded to Pakistan unconditionally upon breaking free from Dogra rule after an armed struggle by the people against a regular state army. However, since its accession 70 years ago, its status has remained ambiguous due to the recalcitrance of the Pakistani government to accept the accession. Instead, ignoring history, GB was forcibly linked to the disputed territory of Jammu & Kashmir, with the Pakistani government giving greater credence to treaties and agreements amongst usurpers like the Sikhs, Dogras and the British in declaring GB a region under dispute. Even the infamous Treaty of Amritsar, 1846 (sale of Kashmir to Gulab Singh by the British for a paltry sum) was given more weight than the wishes of GB’s residents. It is an affront to the patriotism of the people of GB that the provisions of this treaty determined the status of their region.

Upon multiple petitions on the constitutional issues arising from this conundrum over GB, in a landmark judgement, the Supreme Court endorsed the recommendations of the Sartaj Aziz report to confer provisional provincial status on GB, along with parliamentary representation and constitutional rights equal to those held by all Pakistani citizens. It laid down the principle of adherence making Pakistan’s Constitution the touchstone of any governance system for the region. The Supreme Court also ordered the implementation of the draft order GB Governance Reforms, 2019, which categorically commits to considering the conferral of provisional provincial status on GB.

As the government started a futile round of consultations, the real issue of governance was disregarded — even the orders of the honourable court were violated. This present government seems to be prone to forming committee upon committee for any important decisions.

Examining the court verdict through the findings of earlier committees, the minister in-charge finally produced singularly ill-informed and perverse proposals that manifestly negate the court ruling. Namely: GB will not be given status of the province as it will affect the Kashmir issue; reform will be introduced through an act of parliament; GB people were availing subsidies, and making the region a province might end these facilities; all powers according to the 18th Amendment would be transferred to GB, like the other provinces; under the new reforms, the judicial system in GB and vacancy-sharing formula would be equal with that in the rest of the country; and legislative powers on four subjects (minerals, power, tourism and forestry) had been shifted from the federal government to the local elected assembly.

The minister’s views are in conflict with the Supreme Court’s ruling on Gilgit-Baltistan.

The views of the minister conflict with the factual position and clearly violate the ruling which adjudged that the granting of full constitutional rights to GB’s residents does not affect the Kashmir dispute, a point amply clarified in the Sartaj Aziz report. The Supreme Court further ordered that all governance reforms arrangements would be subject to the approval of the apex court; therefore placing it before parliament serves only as a ruse to hobble the process.

In any case, this parliament has no locus standi to legislate for an area that has no representation in this body. The minister fails to understand that the grant of subsidies to a certain area has no link to the rights of representation in an assembly and that it is entirely at the government’s discretion to grant subsidies or tax exemptions to any region, which at the moment are being granted to other special areas in Pakistan. This ploy is routinely used by vested interests and even some myopic local leadership to discourage people from demanding their constitutional rights.

If powers under the 18th Amendment are being devolved to the area, why mention specific subjects, and why a different arrangement for the judicial structure? Even if the court orders are unacceptable, and the government is denying UN-guaranteed self-rule to the people of GB and their accession, the upshot is unilateral revocation of any de jure jurisdiction of the state, thus creating a legal vacuum in this area. The current status has no legal ground and is in violation of the responsibility of Pakistan to the UN and the verdict.

If Pakistan does not accept GB as a part of its territory but wants to control the area, it should negotiate with the elected members of the GB and civil society for a new arrangement and redefine the conditions of such a relationship. The baseline for these negotiations would be the UN resolutions providing self-rule for disputed territories. Possible models could include autonomous regions like Azad Jammu & Kashmir. Like AJK, this area should be given its own constitution to ensure the following:

— All powers of legislation granted to the AJK government should be given to the GB legislative assembly.

— Matters regarding defence, foreign affairs, currency, banks and communication should remain with the government of Pakistan. All other laws in the federal list may be extended to Pakistan only with the concurrence of the local assembly.

— No change in the constitution of GB should be made without the agreement of the local legislative assembly.

After the ministerial statement on the status of GB, the matter was fielded to the cabinet on Feb 27, which again deferred it on the pretext of further consultation with the people of GB. The pernicious practice of setting up committee after committee and seeking meaningless consultations on earlier committee findings —even after the court ruling — is fuelling the frustration of GB’s residents, who justifiably want an end to this decades-old charade. Against the backdrop of the volatile geopolitics in this highly sensitive region, the government would do well to consider how its chicanery serves as nothing less than an IV drip to anti-state elements already spreading poison among an increasingly disillusioned citizenry.

The writer, a former IGP Sindh, belongs to Gilgit-Baltistan.

Published in Dawn, March 15th, 2019