Provisional status and the GB conundrum
By Ashfaq Ahmed & Zafar Ali Khan
Gilgit/Islamabad (TP) November 4, 2020: Addressing a special function celebrating the 73 Independence Day of Gilgit-Baltistan on November 1, Prime Minister Imran Khan announced to make GB a provisional province of Pakistan while keeping in view United Nations’ resolutions regarding the disputed territory of the State of Jammu and Kashmir for GB being part of the unsettled dispute at large.
As the prime minister announced to make GB a provisional province of Pakistan, a ripple of excitement spread through the crowd listening to his speech in Gilgit city and in the same way, it sent a wave of protest in India and in both parts of Kashmir which have and claim to have a stake in the region.
Following the prime minister’s announcement to make GB a provisional province of Pakistan, lets us examine if it is workable and practical within the broader picture of the Kashmir dispute, UN resolutions on the matter, Pakistan and Indian respective stances notwithstanding the wishes of the GB people at large, who have long been demanding fundamental and constitutional rights as enjoyed by other citizens of Pakistan. Can Pakistan frame workable and feasible set of laws to give GB maximum constitutional and fundamental rights without altering its constitution and compromising its position on the Kashmir issue of which it is a stakeholder.
Will parliament amend Article 1 of the Constitution to make GB part of Pakistan?
Article 1 of the constitution of Pakistan states that “Pakistan shall be the Federal Republic and the territories of Pakistan shall comprise Balochistan, Khyber-Pakhtunkhwa, Punjab, Sindh, the Islamabad Capital Territory and such States and territories as are or may be included in Pakistan, whether by accession or otherwise.”
Prior to giving GB any constitutional status, the federal government has so far not shared any latest document regarding amendment Article 1 of the constitution, the Sartaj Aziz-led committee report, on which the federal government is banking on, has recommended against amending Article 1 to delegate constitutional and fundamental rights to GB subjects. It is palpable and imperative to note here that no substantial and special concession could be extended to GB by the federation regarding altering Article 1 of the constitution. Unless, Pakistan’s parliament makes a constitutional amendment to Article, the interim provincial status of GB will only be symbolic and representational. If Pakistan parliament carries constitutional amendment without altering Article 1, GB will have a symbolic representation in the legislature with their representatives, a proposed in the Sartaj-Aziz committee report, being observers in Senate and National Assembly, without having powers to vote on any legislation. It seems, neither the GB people will have a say in cast votes during the general election for the National Assembly. Without altering Article 1 of the constitution, the GB subjects will not be fully recognized and accepted as bonafide citizens of Pakistan. In a nutshell, the provisional provincial status — without making constitutional amendment to Article 1 — will be without substance and meaningless as they will have no in matters related to legislation in Pakistan’s parliament.
Article 257 and 258
Pakistan constitution’s Article 257 relating to the State of Jammu and Kashmir states that “when the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State.”
If the Pakistani government and Parliament amend Article 257 — which the Sartaj-Aziz committee has recommended to — what will be the future arrangement between Pakistan and Azad Jammu and Kashmir and Pakistan’s stance on the greater Jammu and Kashmir at large?. It is yet to be seen how Pakistan attempts to do away with this big conundrum and riddle.
Article 258 of the constitution
Article 258 of the constitution states that “subject to the Constitution, until (Parliament)] by law otherwise provides, the President may, by Order, make provisions for peace and good government of any part of Pakistan not forming part of a Province. This article is almost related to GB and AJK at large which did not fall within the purview of Pakistan’s province.
Even if Pakistan parliament amends Articles 257 and 258, the federation or Pakistan cannot exert full territorial claim over GB until the resolution of the Kashmir dispute, neither can it make GB part of its constitutional territory without amending Article 1 of the constitution. If Pakistan makes a constitutional amendment to Article 1, it risks eroding its stance on the Kashmir issue internationally including at the forum of the United Nations. To put it briefly, whatever arrangement is put in place by Pakistan regarding GB’s constitutional status without altering Article 1, all its actions and measures regarding GB will be arbitrary, interim, subjective and symbolic.
It is most likely that unless the GB people are accepted as full citizens of Pakistan by making necessary constitutional amendments especially in Article 1, they are likely to be treated under presidential orders or ordinances as has been the practice in the past.
Taxes and jurisdiction of Supreme Court
The federal government’s final draft regarding giving provisional status to GB has not yet been made public, the question arises if the jurisdiction of Supreme Court will be extended to GB or GB Appellate Court will be empowered further to dispose of legal matters in the region, as recommended by the Sartaj-Aziz committee. Similarly, will GB be brought under the federal taxation system without making it an integral part of the federation by amendment of Article 1. Here again, the question revolves around Article 1 of the constitution which defines the territorial jurisdiction of Pakistan.
Allocation of seats in National Assembly and Senate
The Sartaj-Aziz committee has recommended six seats for GB in Pakistan parliament — three in the National Assembly and three in Senate. Yet again a question arises, what will be the powers of GB representatives in the National Assembly and in the Senate? Will they be allowed to be part of the legislation process? Will they be called voting members or their presence will only be observers? It seems, as recommended by the Sartaj-Aziz committee, their presence in Pakistan parliament will be without voting powers and they will have no say in the legislation process.
Another important point needs to be noted here that all provinces have equal representation in Senate, under what law or formula only three seats will be allocated for GB in the Upper House of Parliament. If GB’s status is elevated to a provisional province, it also should have an equal number of seats in Senate as is allocated to other provinces. Under the current and under discussion arrangement, an equal number of seats for GB in Senate it seems out of the question and the new arrangement, at best or worst, be a hybrid one which will hardly meet the popular demand of the GB people, majority of whom want the region to be made part of the federation with a say in parliament and other constitutional bodies like NFC Award, ECNEC, CCI etc. How Pakistan, its political parties and the parliament are going to solve this riddle, it is still misty and a mystery.
Establishing AJK-like set-up or local authority
As Pakistan continue to face flake and opposition from AJK and adversary India regarding altering the status of GB, it can best install an AJK-like set-up in GB with their own constitution, prime minister, president, constitution and flag by giving maximum internal autonomy to the region. Or, Pakistan can also establish local authority, as enunciated in UN resolutions of 37, 39, 47 etc regarding the disputed territory of Kashmir, until the final settlement of the disputed of Jammu and Kashmir and GB at large. Pakistan will also have to restore subject rules in GB to make it more internally autonomous and self-governing
UN resolution of August 13, 1948
… according to the UN resolution of August 13, 1948, in effect a final settlement of the Kashmir dispute, “The Governments of India and Pakistan agree that their respective High Commands will issue separately and simultaneously a cease-fire order to apply to all forces under their control in the State of Jammu and Kashmir and ….. the Government of Pakistan agrees to withdraw its troops from that State. The Government of Pakistan will use its best endeavour to secure the withdrawal of troops from the State of Jammu and Kashmir. …… Pending a final solution the territory evacuated by the Pakistan troops will be administered by the local authorities under the surveillance of the Commission, the Government of India will begin to withdraw the bulk of their forces from the State in stages. ….Pending the acceptance of the conditions for a final settlement of the situation in the State of Jammu and Kashmir, the Indian Government will maintain within the lines existing at the moment of cease-fire the minimum strength of its forces which in agreement with the Commission are considered necessary to assist local authorities in the observance of law and order. The Commission will have observers stationed where it deems necessary. The Government of India will undertake to ensure that the Government of the State of Jammu and Kashmir will take all measures within their power to make it publicly known that peace, law and order will be safeguarded and that all human and political rights will be guaranteed. The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement both Governments agree to enter into in consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured.
All-Parties Hurriyat Conference and other Kashmiri leaders
In a recently held session in Islamabad, All-Parties Hurriyat Conference Pakistan chapter passed a 20-point resolution opposing the Pakistan announcement of making GB a provisional province of Pakistan.
Among other key points, the Hurriyat resolution said that Pakistan’s announcement regarding the provisional status of GB was in conflict with the UN resolutions, which will also damage Pakistan’s long-standing position on Kashmir. It demanded that instead of giving provisional provincial status to GB, state subjects rule should be restored in the region and authority should be established in accordance with the UN resolutions until the final settlement of the Kashmir dispute.
The resolution also demanded that AJK and GB could be merged together to form a joint revolutionary government whose prime ministers and presidents should be chosen from AJK and GB alternately. It also said that an-AJK like government could be introduced in GB to give it a greater internal autonomy with its own prime minister, president and the Supreme Court like in AJK.
Earlier AJK Prime Minister Raja Farooq Hider also condemned the prime minister’s announcement of giving GB a special provincial status saying such childish proclamations will only do harm to the Kashmir dispute.
Indian stance and Pakistan reaction
Reacting to Pakistan’s announcement, Indian foreign ministry spokesperson Anurag Srivastava said that India “firmly rejects” Islamabad’s decision. “Instead of seeking to alter the status of these Indian territories, we call upon Pakistan to immediately vacate all areas under its illegal occupation,” Srivastava said.
Since India revoked the special autonomous status of the state of Jammu and Kashmir and carved out two centrally administered territories, an eponymous Jammu and Kashmir union territory, and Ladakh and changed land laws in Jammu and Kashmir that will allow non-residents to buy land in the union territory, something that was previously prohibited under Article 35A of the Indian constitution, which was scrapped last August along with Article 370, Pakistan “categorically rejected” this move, alleging that it was to alter “the demographic structure” in a way that Kashmiri Muslims became a minority in the region.
India maintains that Pakistan’s administration of Gilgit-Baltistan, and those parts of Kashmir under its control, is illegal. While the erstwhile princely state of Jammu and Kashmir (of which Gilgit-Baltistan was a part) chose to remain independent of both India and Pakistan soon after their creation following the end of British rule in August 1947, the Maharaja of Jammu and Kashmir, Hari Singh, of the Dogra dynasty, changed his mind two months later, signing an Instrument of Accession in October 1947 that made his kingdom part of India. However, Gilgit Scouts rebelled against this truce and got Gilgit-Baltistan liberated from Dogra forces from 1947 and 1948 and later announced accession to Pakistan unconditionally and since then, their political, geographical, constitutional and legal status hangs in the balance.
While talking to The Punch senior advocate Ahsan Ali said that after the UN-brokered truce of August 13, 1948, India had granted special status to India under Article 370 and 35-A to its own occupied Kashmir before it revoked it on August 5, 2019. He said that Pakistan had the golden opportunity to set up local authorities in GB and AJK simultaneously after India revoked the special status of Jammu and Kashmir but Pakistan missed it. He said that Pakistan is bound, under the UN-brokered truce of August 13, 1948, to establish local authorities in GB and AJK by delegating all powers to the local legislature — except for defence and foreign affairs — to have their own constitution, administrative, financial and legislative powers to run their own day-to-day affairs with full control on their own resources.
Advocate Ahsan Ali said that after the Indian measure of August 5, had Pakistan set up local authorities in GB and AJK, it would have been in a better position to garner international support to exert maximum pressure on India to restore the special status of Kashmir but that did not happen as Pakistan has been doing opposite things in GB of what it has been saying against Indian excesses in Jammu and Kashmir. He said that the so-called provincial status of GB will be nothing but a ploy to exploit natural resources of the region without giving it internal autonomy as enunciated by the UN resolution of August 13, 1948
According to Advocate Ahsan Ali, Pakistan’s decision of making GB a provisional province status is ultra vires to August 13, 1948, UN resolution and it will further weaken its position on the Kashmir issue.
He said that Pakistan has the only viable option of setting up local authority in GB by devolving all legislative, administrative and financial powers, and sans this, all measures of Pakistan will be illegal, unlawful and in contravene with the UN resolutions.