The identity of Gilgit-Baltistan is historically linked to the long-standing Kashmir issue and many commentators say that it has to be dealt with in the same referendum. This article, on the other hand, intends to shed light on relevant historical facts, revisit some agreements and cite some authorities to advance the argument that the region of Gilgit-Baltistan can be significantly separated from the issue of Kashmir. As a result, I argue through this article that Gilgit Baltistan should be granted full-fledged provincial status under the Constitution of Pakistan.
Historical Background
In order to understand why the two regions of Gilgit Baltistan and Kashmir have been linked, it is necessary to look at its historical context. The region came under the dominion of the Dogras (Kashmiri Maharajas) and British rulers in the mid-nineteenth century after a progression of conquests. The British administered the Gilgit Agency, the centre of GB, under a lease agreement from 1935 which was ‘prematurely’ terminated by them in August 1947 in light of the end of their rule over the Indian-subcontinent. The British administered only the centre to keep an eye on the frontiers and mountainous areas, which were vulnerable to Soviet invasion.[1] In August 1947, Maharajas were able to regain control over the region. However, a domestic paramilitary force, “Northern Areas Scouts,” led by Major Brown, the British Commanding Officer,[2] rebelled against Dogra rule and ousted the Maharajas, thereby declaring Gilgit-Baltistan an independent and a sovereign region on 1 November 1947.[3] The “Scouts” became the heroes of Jang Azadi-e-Gilgit because despite lacking a coherent scheme and a native visionary leader,[4] they were able to overthrow the regime, which existed for over a century. Consequently, the region witnessed a bizarre power vacuum, so the independent leaders established their own agency.
After 16 days of independent rule, they announced accession to the State of Pakistan. It is interesting to note that no formal declaration was made by the State of Pakistan, except entering into a treaty known as ‘The Karachi Agreement, 1948,’ which was signed by some executives of Pakistan and the representatives of Kashmir. Surprisingly, there was no representation from GB. Post-independence, various legal instruments have been employed by Pakistan through executive authority, without due representation from the region, to uphold its legitimacy. As a result, it has developed a notion of “otherness” among locals, who have started questioning their own political identity. With the inception of modernity and globalization, the people of Gilgit-Baltistan lost their traditional institutional ideologies and views of the world; nonetheless, they felt alienated due to being unrepresented in mainstream Pakistani institutions given the underlying political disconnect between the region and Pakistan.[5]
Moving on, to understand the status of GB under international law we need to delve into the Kashmir dispute. Both India and Pakistan have competing claims over the entire state of Kashmir, which is populated by people of diverse ethnicities and linguistic backgrounds. However, in addition to the categorization of the whole region of Kashmir as a single unit, India and Pakistan have “wedded” the identity of GB to Kashmir which is problematic.[6] The more prominent discourse and scholarship on the issue of Kashmir has always foreshadowed the struggles and sufferings of the people of GB. Caylee Hong asserts that: “the administrative arrangements, the political developments, the drawing of boundaries in India and Pakistan, and the emergence of the Kashmir issue on the international level pushed the region (GB) into a liminal position.”[7]
Pakistan’s Governance of GB
At this point, it is essential to emphasize the steps taken by Pakistan to protect the interests of the people of Gilgit-Baltistan without defeating its position on Kashmir. A series of legal and political instruments have been used by the country to uphold its authority over the region,[8] including the pronouncement of the then Prime Minister to grant Gilgit-Baltistan provisional provincial status. Several journalists argue that this declaration was merely a bogus statement intended to make people vote for the party ruling at the center in the GBA Elections 2020.[9] Various others believe that he cannot decide upon an international matter, and the statement was a response to India’s revocation of the special status of Indian-occupied Kashmir. Meanwhile, the statement has met fierce criticism and opposition from India and some Kashmiri groups. Asma Lone, the author of the upcoming book, The Great Gilgit Game, suggests that Mr. Khan alluded to the pronouncement being within the confines of the UN resolutions. In her eyes, the Prime Minister was pointing to part 2 of Article 3 of the UN Resolution of 13 August 1948, which clearly sets out that, “pending the decision on Kashmir, the territory evacuated by the Pakistani troops (which includes GB) will be administered by local authorities.”[10] In Pakistan’s legal framework, this is an interim arrangement until the settlement of the Kashmir dispute, and therefore, it is akin to empowering the local legislature within the meaning of “local authorities” of the Resolution.
In addition, the PMLN-led Government established a special committee under the leadership of Sartaj Aziz, the then advisor to the Executive Head, to develop an action plan regarding the matter. After considering the historical facts, the UN resolutions, and the Kashmir dispute, the committee was of the view that GB may be merged into mainstream Pakistan – having granted all the rights that a province is entitled to under the Constitution.[11] However, no such policy was adopted, the recommendations were kept confidential, and the report was consigned to cold storage because, ostensibly, the State did not want to infuriate India. Contrary to expectations, the then Government believed that even the limited autonomy the region enjoys should be curtailed. However, anticipating a colossal backlash, the leadership promulgated the infamous ‘GB Order, 2018,’ and relegated the Gilgit-Baltistan Council to a “toothless advisory body.” In essence, the region of Gilgit-Baltistan became subject to “one-man rule” by the PM of Pakistan.[12] Moving further, the judiciary of Pakistan also holds that the matter is to be dealt with in accordance with the supreme law of the country, the Constitution of Pakistan. In the landmark judgment of “Civil Aviation Authority v. Supreme Appellate Court Gilgit Baltistan etc,”[13] the seven-member bench of the Apex Court of Pakistan decided upon the enforceability of fundamental rights and constitutionality of Gilgit-Baltistan. Relying on a citation of an excerpt from the Fourth Year’s Official Records of the Security Council, it was held by the judges that, within the meaning of the undisputed note of the UNCIP, the international law on Kashmir does not apply to the case of Gilgit-Baltistan, which is a subject-matter of domestic law. The excerpt stated that:
“… by January 1949, Pakistan undeniably held military control over the Northern Areas; the area was administered by local authorities, not those of the Jammu and Kashmir Government, with the assistance of Pakistani officials …”[14]
In a subsequent case, headed by the then Chief Justice of Pakistan, Mr. Saqib Nisar, the Court proposed Gilgit-Baltistan Order 2019, which provides extensive autonomy to the people of Gilgit-Baltistan, much like that of other provinces.Additionally, the Court observed as follows:
“This Court has not hesitated in the past to give legal recognition to the aspirations of people who have unhesitatingly, enthusiastically (and, if we may put it like that, joyously) cast their lot with Pakistan right from the beginning. We do not hesitate now to take the matter further. Therefore, we do not just provide judicial imprimatur to the proposed framework: we also give it permanence so that the people of GB have unassailable confidence that their rights, and the enjoyment thereof, is not subject to the whims and caprice of every passing majority, but are firmly grounded in the Constitution itself.”[15]
Conclusion
To conclude, in light of the arguments raised, facts presented, and authorities cited, I believe that Gilgit-Baltistan deserves to be the fifth province of Pakistan considering the unconditional accession it announced more than seven decades ago. Furthermore, it does not affect Pakistan’s stance on Kashmir as it was an ‘independent’ and a ‘sovereign’ territory when it joined Pakistan – having dethroned the Dogras. Henceforth, a mere constitutional amendment in Article 1 of the Constitution by the Pakistan’s leadership would accord the millions of people their right to identity and nationhood. Even if India argues that it must be governed under international law on the ground that it was governed by Kashmiris before independence, I believe the dispute has reached a point where a permanent settlement of the conflict has become inevitable to maintain global peace and preserve international security – which is the object of international law. Lastly, by showing great concern for granting peoples of the international community “the right to self-determination,” under international law provides an impetus towards the settlement of the dispute at hand accounting for the best interests of the people of GB. Also, the Gilgit-Baltistan Assembly has moved two separate resolutions to be declared a province.[16] Moreover, Pakistan’s claim over the territory is reinforced given the fact that ever since liberation, the region remained under the direct administrative control of Pakistan. Therefore, the history, legal and political instruments and international authorities are inclined to elevate the status of Gilgit-Baltistan to a permanent and constitutional province.
Disclaimer:
The opinions expressed in the articles are those of the authors. They do not purport to reflect the opinions or views of the Research Society of International Law (RSIL), its editorial team, or its affiliated organizations. Moreover, the articles are based upon information the authors consider reliable, but neither RSIL nor its affiliates warrant its completeness or accuracy, and it should not be relied upon as such.
References
[1] Ali Usman, ‘Gilgit Ka Inqalab [The Revolution of Gilgit],’ Sang-e-Meel Publications. Pakistan. 2012, p.51
[2] Major William Alexander Brown, ‘The Gilgit Rebellion 1947,’ Ibex [1998].
[3] Martin Sökefeld, ‘Jang azadi: Perspectives on a Major Theme in Northern Areas’ History,’ in Stellrecht (ed.), : The Past in the Present: Horizons of Remembering in the Pakistan Himalaya. Köln, Köppe. [1997], 66-67;
Ahmed Hasan Dani, ‘History of Northern Areas of Pakistan,’ Sang-e-Meel Publications, Lahore [2007], 341-346.
[4]Aziz Ali Dad, ‘Boundaries and Identities: The Case of Gilgit-Baltistan,’ In: Crossroads Asia Working Paper Series, No. 34. [2016]
[5] Ibid.
[6] Hermann Kreutzmann, ‘Boundaries and Spaces in Gilgit-Baltistan in Contemporary South Asia’, Routledge, London [2015]
Note: Prof. Hermann Kreutzmann, a German Geographer, has investigated the boundaries of Gilgit-Baltistan in both pre-colonial and post-colonial settings.
[7] Caylee Hong, ‘Law and Liminality in Gilgit-Baltistan: Managing Natural Resources in Constitutional Limbo’ uses the concept of “liminality” in an anthropological sense. I have relied upon it to argue that the politico-legal transitions in recognizing different states of Gilgit-Baltistan have its status ‘indeterminate’ and vague.
[8] The draconic Frontier Crimes Regulations (FCR), which remained effective after liberation; Northern Area Advisory Council (NAAC), 1969 with minimal powers for the locals; Gilgit-Baltistan Empowerment and Self-Governance Order, 2009, an order which semi-autonomy to the locals to govern the region; and the PMLN’s notorious The Gilgit-Baltistan Order 2018, which provided significant powers to the local authorities, however the absolute and ultimate power rested with the Prime Minister of Pakistan.
[9] Shoukat Ali Kashmiri, ‘Granting provincial status to Gilgit-Baltistan is nothing but “lollipop”.’
[10] The UN Resolution of 13 August, 1948, article 3
[11] Afzal Shigri, ‘Constitutional rights denied,’ The DAWN (published on 04 Aug 2018)
[12] Ibid.
[13] Civil Aviation Case-2019
[14] ‘Gilgit-Baltistan and international law,’ The World Times (Published in March 2019)
[15] Iftikhar A. Khan, ‘SC approves draft Gilgit-Baltistan governance order,’ The DAWN (Published in January 18, 2019)
[16] Afzal Shigri, ‘Institute of Policy Studies’ Eighth Meeting on Kashmir.’ The Former IGP Sindh emphasized the importance of making Gilgit-Baltistan the fifth province of Pakistan.
