For the two regions of the erstwhile princely state of Jammu & Kashmir under the practical administrative control of Pakistan since 1947, namely Azad Jammu & Kashmir (AJK) and Gilgit-Baltistan (GB); powers, rights and empowerment have become buzzwords. Several contemporary local interventions – mainly by civil society groups and partially by political parties – to empower the local governance structure in AJK and GB, have yet failed to convince policy-makers sitting in Islamabad.
In reference to GB in particular, its geopolitical position has risen to the surface once again, precisely because it is one of the key determinants of the economic viability of the China-Pakistan Economic Corridor (CPEC), which passes through this periphery. It further invokes the indispensible need of effective and empowered local governance structures in the region. The current debate under way on giving Gilgit-Baltistan provincial status in the federation of Pakistan: stimulates the essentiality of exploring historical facts regarding the Kashmir conflict and resolutions passed under the United Nations Security Council (UNSC) and the United Nations Commission for India and Pakistan (UNCIP). This in turn demands a proposal for establishing a viable interim solution, to address the power-sharing dilemma in AJK and GB. Further, doing so without harming the geographical integrity of the erstwhile State of Jammu & Kashmir, or the cause of the right of self-determination of the people of all the regions of this State (including GB), at the diplomatic front.
Historical Context: Status and Legitimacy
The divided state of Jammu and Kashmir (J&K) as it existed on August the 15th 1947, primarily controlled by India and Pakistan, is recognised as a disputed territory by the United Nations. Similarly, AJK and GB are recognised as disputed territories and de jure parts of the State of J & K, thus key components in transforming the Jammu & Kashmir conflict.
A general understanding is that GB had become part of the J & K State through the Treaty of Amritsar in 1846. However, Martin Sokefeld argues that the Treaty of Amritsar, “Inadvertently excluded a considerable part of Gilgit-Baltistan, as it referred to ‘all hilly or mountainous country with its dependencies situated to the eastward of the River Indus and the westward of the River Ravi, including Chamba and excluding Lahul’ whereas, Gilgit and the greater part of Baltistan are not situated east of the Indus but towards its west and north”. However, despite varying interpretations of the Treaty of Amritsar, the noteworthy point is that on August the 15th 1947, Gilgit-Baltistan – by and large – was under the control of the Dogra ruler Maharajah Hari Singh, whereby his appointee Governor Ghansara Singh was stationed in Gilgit, thus this area became part of the larger Kashmir problem.
The boundaries of the former princely State of Jammu & Kashmir are well-defined and have never been questioned for the last 68 years. However, what is undefined and unrecognised is the sovereign status of the State of J&K. This is despite the State becoming sovereign and independent with the lapse of British Paramountcy, on August the 15th 1947 and remaining so for 73 days in its own right. The sovereignty of Hari Singh’s rule over the entire state was partially suspended when a large section of the population in the areas now known as AJK, rebelled against his autocratic rule and announced the establishment of a revolutionary people’s Government of the Azad State of Jammu and Kashmir on the 4th of October 1947. However, this was a mere proclamation which couldn’t materialise on the ground. Subsequently on the 24th of October 1947, it was reconstituted as a provisional government with a rudimentary structure operating from Junjaal Hill, Sudhnoti, Poonch. Sardar Ibrahim Khan, a member of the J & K Assembly (Prajha Sabha), assumed the role of the president while a council of ministers took responsibility for managing its civil administration, in those areas under its control.
Returning to GB, there are contested historical narratives about the ‘liberation’ war there, which began a few days later on November the 1st 1947. Nevertheless, history demonstrates that the people in Gilgit Baltistan rebelled and established a local administrative Council by overthrowing the Maharajah of J & K’s appointee Governor Ghansara Singh. Thereby, forming the new Republic of Gilgit, which could only sustain itself for a mere 15 days. These public revolts in AJK and GB against the Maharajah’s rule provided an opportunity for Pakistan and India to intervene in the internal affairs of the State by sending in their tribal forces and armies respectfully, in October 1947. Consequently, the sovereignty of the State of J & K has been suspended since and contested as an ‘ownership’ dispute between India and Pakistan. Subsequent intervention by the United Nations via UNSC resolutions led to the formation of a specific institution viz. UNCIP, to resolve the Jammu and Kashmir dispute according to the wishes of the people of Jammu & Kashmir. Their efforts to secure demilitarisation as a pre-condition to plebiscite could find no mutual agreement between India and Pakistan. Bilateral talks between the two neighbours – to date – have not delivered either. Henceforth, the J & K dispute continues to affect peace and stability in South Asia.
A recent debate advanced by some commentators on changing the constitutional status of GB or making it a province of Pakistan, with the argument that GB had allegedly acceded to Pakistan by choice in 1947: is misleading and in fact rhetoric brushed over reality. With the looming CPEC project, it could be counter-argued that this is a ‘convenient’ attempt to promote a specific narrative on GB’s history and possibly further divide the region of GB along the CPEC route. In reality, there was an attempt (or request) in 1947 to accede by the rulers of two small fiefdoms namely, Hunza and Nagar; in isolation (without consultation or agreement of the local administrative Council). It was then considered ‘convenient’ to reject these accession requests given the harmful implications they could have on securing the accession of the rest of the erstwhile princely state of J & K. In any case, if Pakistan now publicly accepts the ‘accession’ of these two small fiefdoms from within GB, then the question arises as to why she is adamant in rejecting the Maharajah’s ‘conditional’ accession of J & K with India.
The most relevant account is that GB was officially, politically and legally a part of the princely State of Jammu & Kashmir as it existed on August the 15th 1947. UN resolutions on the matter also regarded it as a ‘disputed’ territory in the framework of the Kashmir conflict. Public opinion on the future status of GB is at variance. Some studies indicate that the overwhelming majority of the population of GB, are inclined towards joining Pakistan, either with a provisional provincial status or as a permanent province of Pakistan. There are also a considerable number of people in the territory, who support GB’s independence. However, the wishes of the people can only be determined under the agreed framework of the UN resolutions and subject to a settlement of the Kashmir conflict. Thus, historical realities are unavoidable.
The Constitution of Pakistan
The 1973 Constitution of Pakistan defines its relationship with the disputed State of Jammu & Kashmir in Article 257. It reads, “When the people of the State of Jammu & 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”. The Constitution of Pakistan 1973 under Article 1(2), unlike other autonomous areas under the purview of Pakistan, does not mention AJK and Gilgit-Baltistan as part of the territories of Pakistan. Justice (R) Manzoor Gillani argues that the territories of AJK and GB can be considered as ‘otherwise’ included in the light of Article 1(2) (d) of Pakistan’s constitution (ARJK 2012). On the contrary, Dr. Nazir Gilani correctly pointed out that: “It is legally incorrect to state that under Article 1(2) (d) of the Constitution of Pakistan ‘territories otherwise included’ in Pakistan are AJK & GB. Article 1(2) (d) does not make any reference to article 257. Therefore, Manzoor Gillani has misdirected himself in the understanding of territories otherwise included in Pakistan”. Further, article 257 talks about a ‘prospective’ relationship with the State of Jammu & Kashmir, when the Kashmir conflict will be resolved. It is noteworthy that the Government of Pakistan has ‘assumed’ a ‘temporal’ control and administration of AJK and GB under a ‘trust obligation’ derived from UNSC/UNCIP resolutions. It is also its responsibility to provide ‘better governance and administration’ to these territories with whom it maintains a de facto link until the final disposition of the Kashmir conflict.
The Karachi Agreement
The Karachi agreement (1949) which was signed between the then Government of AJK and the Government of Pakistan has no locus standi, given the fact that neither the then leadership of AJK had any moral or legal authority nor political support from the people of GB to hand over GB under the direct administration of Pakistan. Neither can the Government of Pakistan assert any legal claim on GB under this agreement. The people of GB fought for their ‘liberation’ against the autocratic regime of the Maharajah and they never endorsed this agreement. Indeed, the Karachi agreement laid the first power-sharing relationship between AJK and Pakistan. However, it had highly negative political repercussions on the governance of AJK and GB. It should be remembered that ultimate sovereignty and legitimacy rests with the people. Therefore, the people of GB – by all means – have the right to negotiate a new interim social contract with the Government of Pakistan, subject to the UN resolutions and the Kashmir conflict. In fact, the ‘citizens’ of GB are potentially at an advantage in negotiations with the Government of Pakistan, due to their strategic location and CPEC developments in the region.
Giving Voice and Rights to AJK and GB
A study of the current power-sharing relationship between AJK and Pakistan, based on the Interim Constitution of 1974 and in the case of GB and Pakistan, based on Gilgit-Baltistan Ordinance for Empowerment and Self-Governance (2009), indicates that it neither provides genuine autonomy to these disputed territories, nor does it captures the letter and spirit of the UNCIP mechanism. Bushra Asif notes, “Islamabad’s relationship with Muzaffarabad is one based on control rather than autonomy, with negative consequences for AJK’s political and economic development”.
The dilemma of AJK and GB mainly exists at the external level of power-sharing between these territories and Pakistan, which not only puts a question mark on democratic norms and values but it also has negative impacts on the right to rule and ownership of the local people. Since 1947, Pakistan’s policy towards AJK and GB has been ‘heads I win, tails you lose’. Turning the clock back, a very good example of autonomy or self-government in the political and constitutional history of AJK was the ‘Azad Jammu & Kashmir Government Act 1970’ through which a full democratic and empowered structure was given to AJK. This was the only Act, which was tabled by consulting the AJK leadership after they had undergone a tireless political campaign of protests for political and constitutional empowerment. This Act, for the first time ever, provided considerable internal autonomy to the Azad Kashmir government, thus, capturing the spirit of the UNCIP mechanism. It may seem ironic that AJK received a quantum of autonomy and comparatively better democratic framework, whilst Pakistan was being ruled by a military dictator viz. Yahya Khan.
Therefore, granting genuine autonomy to AJK and GB is the need of the hour and long overdue. In this regard, Act 1970 still provides a basic reference point to address the dilemma of AJK and GB though which a wide-reaching autonomous framework can resolve the emerging politico-legal conflict between these territories and Pakistan.
Why Autonomy Matters?
Contemporary scholarly debate demonstrates that the opportunities and pitfalls of establishing democratic and autonomous governance structures in territories with external control and influence are inherently problematic. The existence of lopsided power-sharing modes of governance between a central or external government and regional or territorial governments not only causes conflict and fragility of governance, but also undermines efforts to establish democratic rule. It is also observed that imbalanced power-sharing between a disputed territory and a controlling nation-state also paves the way for violent insurgent movements. The highly uneven and imbalanced power-sharing relationship of AJK and GB with Pakistan resulted in weak institutional capacity and fragile governance processes, which subsequently failed to establish legitimate governance structures and undermined governmental authority. Thus, the key problem of AJK and GB lies in their lopsided power-sharing relationship with the Government of Pakistan.
Contemporary scholars agree that for building a democratic governance structure in territories with a disputed status, a well-negotiated power-sharing mechanism which could guarantee genuine territorial autonomy (or in other words domestic sovereignty, free from external control in public policy) is sine qua non. The political scientist Lapidoth explains that, “The concept of self-government or self-rule closely resembles autonomy and it is generally believed that under internal self-government a territorial entity manages its own internal affairs by itself, without external intervention”. He further elaborates that autonomy stands for “Freedom from control or interference by the government of another State in respect of the internal government (legislature, executive, and judiciary) and administration of the territory”.
In the contemporary world, examples exist of autonomy whereby the political and legal conflicts between central and regional or territorial governments are addressed. For example, The Ålands Islands attained far-reaching autonomy under Finland’s Act of Self-government in 1991. It enjoys legislative and executive powers related to all political sectors of the people on this island. In the case of the United Kingdom; Scotland, Wales and Northern Ireland are examples of a high degree of self-governance. The Nordic islands, South Tyrol, Spain’s autonomous communities of Catalonia and the Basque Country can be regarded as among the most advanced forms of autonomy in existence.
Win-Win Interim Solution: Recognising Internal Self-Determination
The right to self-determination is recognised as a fundamental right of people by the United Nations. Professor Salvatore Senese has provided very meaningful interpretations on the concept of self-determination by dividing the concept of self-determination into external and internal self-determination. “External self-determination concerns the international status of a people. It can be summarized as the recognition that each people have the right to constitute themselves as a nation-state or to integrate into, or federate with, an existing state”, he explains. Whereas internal self-determination he describes as, “The right of peoples to self-determination once they have achieved statehood (or state-like formation). The right to internal self-determination means only that other states should not, through appeals or pressure, seek to prevent a people from freely selecting its own political, economic, and social system”.
The people of the divided and disputed State of J & K are waiting to exercise their external right to self-determination collectively across the Line of Control (LoC), as promised by the UN and agreed to by both India and Pakistan through a plebiscite under UN auspices. However, they are not allowed to exercise their right to internal self-determination in the territories currently under the control of both countries. Despite the disputed status of J&K, a common understanding is that the legitimate fundamental rights of the people (state-subjects) living in these regions are not disputed. These rights include the right to life, liberty and security of person, the right to State Citizenship under the State Subject Rule of the 20th of April 1927, the right to decentralised and democratic governance, the right to vote, the right of free speech and association and the right of ownership over natural resources shouldn’t be held hostage because of the Kashmir conflict.
Keeping in view the proposal that GB should be given provincial status by amending the Constitution of Pakistan, in order to secure Chinese investment for the CPEC project is a step in the wrong direction. In my opinion, the issue is not whether to amend/change the Constitution of Pakistan by giving provincial status to GB, which reportedly is being done under the guise of giving rights. Rather, the issue is whether or not the current power-sharing mechanisms of AJK and GB with the Government of Pakistan provide sufficient space for building autonomous and democratic governance structures in these regions. Making GB a constitutional province of Pakistan will subsequently result in geographically submerging these areas into Pakistan. Any such action would create a new diplomatic quagmire for Pakistan and could be a serious threat to the viability of the CPEC project because the Government of Pakistan cannot alter the status of GB under the commitments and obligations of UNCIP resolutions, passed from time to time on the Kashmir conflict.
Another proposal has emerged from some quarters that GB should be given a system similar to AJK. Interestingly, the proponents of this proposal are asking for a system which has demonstrably failed to address the legitimate rights of the people of AJK. Therefore, those who believe that Azad Jammu & Kashmir enjoys autonomy or self-governance under the Interim Constitution Act of 1974 and that a similar system in GB will help resolve their problems are living in a fool’s paradise.
Against this backdrop, what needs to be changed or transformed can be described at two levels: firstly, the ‘carrot and stick approach’ and the mind-set of the decision-makers sitting in Islamabad towards AJK and GB; and secondly, the lopsided power-sharing relationship between these two territories and Pakistan. Hence, the power-sharing framework between AJK-GB and Islamabad should be devised with the consultation of legitimate stakeholders of AJK and GB. The legislative assemblies of AJK and GB must be empowered by granting them ‘genuine territorial autonomy’ with full financial and legislative powers. The government of Pakistan should only keep the subjects of defence, currency and UNCIP obligations with the concurrence of the respective legislative assemblies and all remaining powers currently enjoyed by the AJK and GB Councils should revert back to the respective assemblies and governments of AJK and GB.
It seems essential that any alternate formula for the empowerment of AJK and GB must entail six essential characteristics: (a) be in accordance with the spirit of the UNCIP mechanism, (b) be in accordance with the constitutional and historical context of the disputed state of Jammu and Kashmir and the declaration of the provisional government of AJK formed on October the 24th 1947, (c) be in accordance with the free will of the people and able to address the legitimate rights of the people of AJK and GB as state-subjects, (d) be practicable, honourable, feasible and democratically equipped to address the prevailing lopsided power-sharing structure between Pakistan and AJK-GB, (e) be capable of granting complete internal autonomy or domestic sovereignty to AJK and GB, (f) be in accordance with Act 1970 of AJK, which provided considerable internal autonomy to AJK. Furthermore, the spirit of the 18th amendment in the Constitution of Pakistan through which powers were devolved and wide-reaching provincial autonomy was granted to the provinces of Pakistan, could be applied without jeopardizing the territorial status of AJK and GB.
Lessons Need to be Learned
The history of conflict reveals that powers and rights are never given, they are always taken. The people of AJK and GB need to learn that merely demanding legitimate democratic rights is not enough. They need to realise that on account of being citizens of the former princely state of Jammu & Kashmir, ultimate legitimacy and sovereignty vests with them. Therefore, if they decide to struggle democratically for their legitimate rights, they cannot be deprived of their fundamental rights. However, it requires a people’s rights and civil resistance movement equipped with political strategy.
The leadership of AJK and GB must realise that it is too easy to point to the Ministry of Kashmir and Gilgit-Baltistan or to the Government of Pakistan, as being the origin of all evils in AJK and GB instead of identifying their own weaknesses. Similarly, the leadership of GB should also understand that blaming AJK’s leadership for ineffective and powerless governance in GB amounts to escaping from the political, historical and legal realities of the Kashmir conflict. The regions of AJK and GB are facing similar issues and challenges in terms of powerless assemblies and governance fragilities. It should be remembered that the blame game will not help to build a constructive relationship between AJK-GB and Pakistan, rather it will lead to confrontation, which can further deteriorate the situation.
On its part, the Government of Pakistan must recognise that the prevalent constitutional framework in AJK and GB cannot satisfy the needs and legitimate rights of the people. The uncertainty of the timescale and lukewarm diplomatic progress on transforming the J & K conflict exacerbates the situation further. Therefore, neglecting legitimate democratic rights of the people of AJK and GB will do more harm than good.
In summary, it is suggested that until external self-determination is given to the Kashmiri people, AJK and GB should be given an opportunity to recognise their right of internal self-determination. While advocating for the right of self-determination of the people in Indian-Administered Kashmir, Pakistan should first provide a free and fair opportunity of exercising internal self-determination for the people of AJK and GB. Through internal self-determination the people will freely determine what kind of temporal power-sharing relationship they want to maintain with the state of Pakistan, until the final disposition of the Kashmir conflict. The academic Paulo Freire once said, “Sooner or later being less human leads the oppressed to struggle against those who made them so”.