Whatever be the reasons for a territory to be disputed between the two nations, the inhabitants of that territory cannot be denied basic facilities to live a civilised life; even if that territory is divided between the two for whatever reasons. Each truncated region as occupied remains under the control of that nation and therefore it becomes solemn responsibility of each nation to respectively care for the people of the associated regions. Human life cannot be abused and trampled upon by the dictates of the disputed political claims made by the disputing nations.
A comparison
The erstwhile state of Jammu and Kashmir ( J&K) of which Ladakh was a part—while the dispute had been referred to the United Nations—was accorded a special status by the Indian political leadership and a politically workable relationship existed between the Indian Union and the erstwhile J&K state and over the years it led to overall development of the people of the region that is, socially, economically and politically before this process was to some extent interrupted by the Pakistan-sponsored insurgency beginning 1989. Any observer—knowledgeable in history—can note the perceptible difference between the erstwhile J&K state of 1947 and the Union Territory of J&K of 2020 in terms of its economic growth; increase in literacy rates; rise in the percentage of the middle class; etc.
Similarly Pakistan had under its control the areas. These came to be under Pakistan’s control because of a unilateral ceasefire announced by India during the war of 1947. The people of both the regions remain deprived of basic amenities of life even while the region’s natural resources are being—and continue to be—exploited by mainland Pakistan. The locals of the areas have themselves been posting the eye-catching difference between the region under India and that under Pakistan insofar as the development of the respective regions is concerned.
It’s a historical fact that Pakistan is solely responsible for creating a disputed status for the entire region. The misadventure of 1947 led to the separation of what has come to be known as Pakistan-Occupied Kashmir (POK and Gilgit Baltistan (GB) from erstwhile princely state of J&K. The areas that went out of the jurisdiction of India were an integral part of the erstwhile princely state of J&K.
GB’s political status
The region is a part of the erstwhile princely state of J&K that’s been administered by Pakistan since November 1947. Its legal identity and constitutional status have been under dispute for all the time. The occupation took place without the consent of the people and, for over 70 years now, the area has lacked a proper constitutional status, a working legal system—and the political autonomy that the erstwhile state of J&K in India had until a few months ago. Pakistan is yet to grant full constitutional status to the region, GB is neither a province nor a state. It has a semi-provincial status. The residents do not have a right to vote in the national elections, and limits on freedom of speech and expression have been imposed.
Rule by Ordinances
Pakistan’s policy of governing GB with ad-hoc ordinances was first started by former Prime Minister Benazir Bhutto after she issued a Legal Framework Ordinance (LFO) in 1994 to establish the first assembly in GB. In 2007, Retired General Pervaiz Musharraf issued another LFO in 2007 as the Chief Executive of Pakistan. In 2009, the then Prime Minister Yousuf Raza Gillani issued an empowerment and self-governance ordinance, which was subsequently replaced by former Prime Minister Nawaz Sharif’s reformed package in 2018. The ordinances and packages had no constitutional protection and therefore failed to grant locals citizenship or representation in the parliament. Earlier to the above ordinances, the governance of Northern Areas (GB) passed through many hands from being governed by a representative of the Federal Government through the Azad Kashmir set up to the governance and legal control being handed over back by Azad Kashmir to the Federal Government via Karachi Agreement of 1949.
Post the agreement, the GB area was governed through Frontier Crimes Regulation (FCR) by the Federal Government. FCR implied that the entire region was to be treated as the one inflicted with law and order problems and there was not going to be any formal official relationship between POK and GB. The law (FCR) stated that three basic rights were not to be applicable to the residents: the right to request a change to a conviction in any court; the right to legal representation and the right to present reasoned evidence, respectively. In 1974, the prime minister of Pakistan, Zulfiqar Ali Bhutto abolished the FCR and introduced the Northern Areas Council Legal Framework Order 1974-75. This introduced some administrative and judicial reforms but did not provide fundamental rights for the people of GB. So, the Northern Areas Legislative Council (NALC) came into being. The control over governance remained with the Federal Government. In the wake of Pakistan’s Supreme Court decision in 1999 directing Islamabad to extend fundamental freedoms to the Northern Areas within six months, coupled with political pressure within GB, the government of Pakistan delegated further administrative and financial powers to NALC.
Consequent upon the Supreme Court order, in the 2007 reform package, the Northern Areas Legislative Council was upgraded and made a Legislative Assembly, and the deputy chief executive was made its chief executive. The Minister for Kashmir Affairs became the chairman of the new Legislative Assembly. Under this reform administrative and financial powers were also transferred from the Ministry of Kashmir Affairs to the Northern Areas. In August 2009, the PPP-led federal government introduced the GB Empowerment and SelfGovernance Order 2009.
It was a significant step in compliance with the 1999 Supreme Court verdict directing the government to take all necessary measures to grant fundamental rights to the people of GB. The elected Legislative Assembly though functional yet all major decisions continued to be taken by the federal government in Islamabad through the mechanism of the GB Council. In a new set of confusion, Pakistan changed the constitutional status of GB in the year 2018. It introduced the latest set of laws for the region through the GB Order, 2018. The new order annulled the GB Council and eliminated the role of the Pakistan’s Ministry of Kashmir Affairs, which earlier looked after issues in POK and GB region. Thus the GB Legislative Assembly became more powerful; however, the prime minister has a final say on policies of the government in the territory and can levy taxes. The net effect of all the ordinances and other legislations as briefed in the aforesaid lines is that the people of GB are not empowered to shape their own destiny and be in a respectable relationship with the state of Pakistan.
Dubious pact with China
An important reason why Gilgit Baltistan was kept away from POK and under direct supervision and control of Pakistan was the China factor. The area ceded by Pakistan to China in 1963, south of the Mintaka Pass, belonged to Hunza. The Border Agreement of 02 March, 1963 changed the alignment of the boundary line between the Sinkiang province of China and the contiguous area under the actual control of Pakistan. India has challenged the legitimacy of this agreement. Ceding territory to China was not even discussed in GB as it did not have any elected assembly of its own. Articles I, II and VI of the 1963 Agreement, however, accepted that the area covered by the Agreement was disputed. Article VI of the Agreement stated that”
1. The two parties have agreed that after the settlement of the Kashmir dispute between India and Pakistan, the sovereign authority concerned will reopen negotiations with the government of the People’s Republic of China on the boundary as described in Article II of the present.
2. Agreement of Kashmir so as to sign a boundary treaty to replace the present agreement … Article I of the Agreement accepts that the India-Pakistan boundary in this area is not delimited or defined. It states that in view of the fact that the boundary between China’s Sinkiang and the contiguous areas, the defense of which is under the control of Pakistan, has never been formally delimited, the two parties agree to delimit it on the basis of the traditional customary boundary. Here, China concedes that the area is not under the sovereign control of Pakistan, a fact that becomes important when seen in the context of the CPEC.
A Pakistani colony
GB is a multilingual region with socio cultural and ethnic diversity. It is surrounded by three famous mountain ranges: the Himalayas, the Karakoram and the Hindu Kush. It occupies an area of 72,496 sq km. Shiites constitute 39 per cent, Sunnis 27 per cent, Ismaili 18 per cent, and Noorbakshi 16 per cent—and at least 24 ethnic and linguistic groups. The GB region is endowed with abundant and innumerable natural resources. The Indus river which flows through GB, offers vast hydro potential not only within the region but across Pakistan. The region is a notable supplier of many important minerals to the country as well as the world. The locals feel that the ambiguous status of the territory has prevented respective governments from designing policies on their economic needs and potential. Consequently, this has resulted in deep rooted poverty, with scarce economic opportunities. There is also among them a clear perception of how their land’s natural resources are being exploited without any benefits accruing to the natives. For example, they are sure that for the revenues generated by the Bhasha Dam, GB will not be paid any royalty, since it is not a constitutional province of Pakistan.
There is absolutely no transparent mechanism on the disclosure of revenues earned from tourism. While the federal government collects trekking fees, environmental protection fees and expedition adventure fees, it neither declares these revenues publically nor shares any earnings with local communities, is the charge. The locals from Hunza also feel that the federal government should disclose the amount of revenue it receives in duties from trucks entering from China. The money is not going to local communities and according to them it is unfair as the movement of heavily loaded trucks is causing environmental damage. The locals resent such centralised control as it depicts the colonial mindset of the federal government. The locals believe that economic discrimination between people in GB and those from other provinces is institutionalized because they have no voice in the National Assembly and other forums of decision making. Potential areas of revenue generation are out of the jurisdiction of GB assembly, and are managed and controlled by the federal government. This contrasts strongly with the position in Pakistan’s four provinces, where under the 18th amendment to the constitution, powers over areas like oil, gas, minerals, dams and tourism have been transferred back to the provinces allowing them to accrue the financial benefits. It is a paradox that under some political pretext Pakistan under its Constitution does not accord any constitutional position to GB for administering it and affording its people full rights as citizens, yet it feels free—as a matter of right—to exploit the natural and human resources of GB without any benefits accruing to the locals. This is pristine colonialism which Pakistani ruling elite seem to have painstakingly imbibed from their colonial masters. This is human conscience at its abysmal low and depraved.
Turbulent Society
In addition to depriving the local population of the benefits obtained from exploiting natural resources of GB, the Pakistani establishment/ politicians mindset has succeeded in sowing the seeds of communalism between different sects of the local populace. The three communities- Shia, Sunni and Ismailis—with deep religious differences, lived in peace and harmony until late 1970s when schisms started to appear between Shias and Sunnis. Ismailis were also looked at askance because of their faith and the worldview. The clashes between Shias and Sunnis started getting organized from 1975 and thereafter became quite frequent. What Pakistan sponsored religious fanaticism did to the civilized Kashmiri society of India, the same formula had been tried on the GB society. Pakistan’s conscientious efforts to alter the demography of GB resulted in Shia community belief that their numerical majority in GB has been continuously diluted by the influx of Sunni ethnic Pathans and Punjabis. The situation seems to have reached such a stage where people now look at things from the prism of sectarianism and perceive everyone as problematic who does not adhere to their school of thought. Shia and Sunni are living in separate towns and areas, which reaffirms that social cohesion and integration between them is a distant dream now.
The safety and security of the Ismaili community in GB is also on the brink. While the community is known for its neutrality and peaceful outlook, which focuses all its attention on socioeconomic development and education, yet there is a lurking fear that even a small incident might incite hardliners to target this community. The locals believe that this would only widen the schism which is already tearing the society apart. It may not be out of place to compare the social situation in GB with that of erstwhile apartheid Africa.
Why an orphan?
An orphan does not have a true benefactor/well-wisher. Many orphanages have been found to exploit its inmates. Likewise, insofar as GB is concerned, Pakistan has shown greater concern for the territory of GB it occupied in late 1947 than for the people living there. The deliberately planned ambiguous political status of GB vis-à-vis Pakistan enabled the latter to change GB demography by making use of its usual practice of settling Punjabis Sunnis in the area and the net effect has been that it has created a turbulent society struggling to attain economic well being as also to decipher their place on the political map of Pakistan.
The brazenness of Pakistani elite is such that it has no compunction in exploiting natural resources of GB while denying them basic rights to life and dignity. The socio-economic and socio religious conditions are ripe enough to explode into a movement against Pakistan. This may be the reason why Pakistan is considering making GB as her fifth province which anyway India may oppose. Assimilating GB as fifth province of Pakistan may also be a reaction to the act of India reconstituting the erstwhile J&K state as two Union Territories. However, politically the situation is ripe enough to unfold in a way to redefine geography in the sub-continent.
Mir Junaid is an alumnus of law school, University of Kashmir. He’s the president of Jammu Kashmir Workers Party (JKWP).His areas of special interest being grass-roots governance, gender justice and policymaking. He can be reached at: [email protected]. He tweets @MirJunaidJKWP.