“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”[1]
A 2017 mission of the Human Rights Commission of Pakistan to Gilgit-Baltistan confirmed the people’s desires to live as Pakistani citizens.[2] This was the first amongst many declarations.
In 2020, Pakistan’s Prime Minister promised the people of Gilgit-Baltistan that the region was finally to become the country’s fifth province.[3] However, later in 2022, Pakistan instead introduced a new fiscal regime taxing over a hundred items in Gilgit-Baltistan, with the proceeds directed to the Federation. No constitutional status was granted. Rejected by locals, allegations that Pakistan only took from the region, without giving it a clear constitutional status continued to bolster.[4]
This is not novel. Locals long fear that Pakistan views them as Pakistanis only when convenient. At all other times when demanding equal rights, the people of Gilgit-Baltistan feel they are reminded of their constitutional status, or lack thereof.[5]
This article follows the same trail. It discusses Gilgit-Baltistan’s current constitutional crisis, how its vague nature has historically benefitted Pakistan but has denied Gilgit-Baltistan their right to self-determination, and ultimately the way forward for Pakistan.
Status set to Fail
Situated in north Pakistan, Gilgit-Baltistan is a disputed territory within Jammu and Kashmir. The former princely state has been under Pakistan’s administrative control since November 1947; with a formal transfer occurring in 1949 via the Karachi Agreement. Its administrative control to date is vehemently disputed between India and Pakistan.
A series of laws have thus since been passed helping Pakistan retain de facto control over Gilgit-Baltistan. Evidently, the area’s geo-political value, and resource development potential keeps Pakistan geographically relevant.[6] The region, rich in its natural resources, has created significant value for Pakistan amidst its glaring water crisis,[7] and in the wake of the country’s obligations under the China-Pakistan Economic Corridor.[8] Many official accounts attribute Pakistan’s seemingly indecisive position over Gilgit-Baltistan to its stance on Indian occupied Kashmir.[9] Should Pakistan annex Gilgit-Baltistan as a province, it will lose its positionality in the international community against India.
Of course, much has changed since India unconstitutionally annexed Jammu and Kashmir by scrapping Article 370 and 35a of its Constitution. This effectively reversed the territory’s semi-autonomous status and made it part of India. Pakistan found itself sandwiched between a rock and a hard place; whether to push back and annex Gilgit-Baltistan as a fifth Pakistani province, or maintain a stance on Kashmir in the international community without giving Gilgit Baltistan formal recognition. Troubled on whether to keep Gilgit-Baltistan close, or to maintain its stance on Kashmir’s illegal annexation, Pakistan has blurred its lines with the region. But it seems that this limbo suits Pakistan.
The Blurred Lines of Courts and Law
It was first in 1999 that Gilgit-Baltistan’s mired constitutional status was brought into question. When questioned why Gilgit-Baltistan could not be afforded constitutional status; the Supreme Court of Pakistan held that it could neither prescribe governance for the territory nor could it direct parliamentary representation as this would endanger Pakistan’s stance on Jammu and Kashmir.[10] This was the first of many indications that the country’s dispute with India vis-à-vis Kashmir led to it denying Gilgit-Baltistan formal constitutional status.[11]
The court eventually directed the Government to take all measures required to protect the rights of Gilgit-Baltistan’s locals under the Constitution of Pakistan. It was odd that an administrative territory could simultaneously be governed by a constitution it was not formally recognized by.
The Al-Jehad Trust judgment set the groundwork for the Gilgit-Baltistan (Empowerment and Self Governance) Order 2009 (“2009 Order”). The 2009 Order aimed to implement local governance systems that would give the people of Gilgit-Baltistan autonomy and sovereignty over its resources.
However, Gilgit’s ‘independent’ status and Pakistan’s ‘administrative control’ was blurred at the outset. Although the 2009 Order established a full-fledged judicial system, GB courts, unlike Pakistani courts, had no power of judicial review. All such matters of legislative importance would continue to come to the Pakistani judicial system.[12] Additionally, Gilgit-Baltistan was not added to Pakistan’s Council of Common Interests and therefore had no negotiating leverage with the Federation. Instead, a separate Council i.e. the Gilgit-Baltistan Council was formed, which could not discuss foreign affairs, defence, international security or finances.[13] Gilgit’s now ‘independent’ status and Pakistan’s ‘administrative control’ had blurred lines even further. While natural resource and land development remained with Gilgit-Baltistan, the Federation and local governments would enter into arrangements that would empower the federation to utilize the region’s resources.[14] In practice, little to no consultation was sought from locals or the local governments for resources that were theirs.[15] A World Bank Report in 2011 found that even though the 2009 Order mandated the establishment of a separate Gilgit-Baltistan fund, taxes collected within Gilgit Baltistan were deposited into the Federal Consolidated Fund.[16] Therefore, with no revenue of its own, Gilgit-Baltistan continued to rely on the federal Pakistani government to support its needs even when it was empowered to self-govern legally.
In 2018, the Supreme Court of Pakistan reviewed this question once again when Pakistan made its second offering to the people of Gilgit-Baltistan: the GB (Empowerment and Self-Governance) Order 2018. Although not significantly different from its predecessor, the 2018 Presidential Order passed on legislative powers for mineral, hydropower, tourism sectors to the GB Assembly. To no one’s surprise, the Order was met with significant resistance. The residents of the region rejected the Order and declared that the region be treated as a province as opposed to governance through presidential orders.[17] The Gilgit-Baltistan Supreme Appellate Court, following suit, suspended the Order.[18]
This was challenged by the Government of Pakistan before the apex court. In 2018, the Supreme Court of Pakistan once again analysed the Kashmir issue in denying the people of Gilgit-Baltistan a clear constitutional status.[19] The outcome was simple, Pakistan would govern Gilgit-Baltistan, until it would not. The Court followed the Al-Jehad Trust judgment and the vagaries of the 2009 Order. It displayed its sympathies with the people of Gilgit-Baltistan but ultimately held that the GB Supreme Appellate Court had no power of judicial review and could not determine the constitutional status of a presidential order. The only court empowered to do so was the Supreme Court of Pakistan; a court which formally had no control over the region. However, it gave the people of Gilgit-Baltistan the comfort that they could seek judicial recourse before the courts of Pakistan. This seemed illusory. In trying to provide Gilgit-Baltistan the right to “self-governance”, the Supreme Court of Pakistan also took away a key aspect of “self-governance”: the ability to take decisions on how best the region wanted to be governed.
Conclusion
Higgin argues there are two kinds of self-determination: internal and external.[20] External self-determination occurs through secession i.e. establishing oneself as an independent state.[21] Evidently, external self-determination cannot exist in isolation from the Kashmir issue at large.
Thus perhaps it would be more pertinent to use the term “internal self-determination” defined as:
“a right of the entire population of the State to determine its own political, economic and social destiny and to choose a representative government; and, equally, as a right of a defined part of the population, which has distinctive characteristics on the basis of race or ethnicity, to participate in the political life of the State, to be represented in its government and not to be discriminated against.”[22]
On paper, the region is fully empowered to determine its status. On paper, Pakistan has always recognized that a critical determinant for Gilgit-Baltistan’s self-determination is sovereignty over its affairs.[23] In reality, Pakistan continues to exercise complete control over a region it has no de jure control over. It is completely ambiguous where Pakistan’s administrative control ends and where Gilgit-Baltistan’s self-governance begins.
However, it has always been clear that retaining Gilgit-Baltistan would always come at an opportunity cost. Today, Pakistan has two options. It must either give complete autonomy to Gilgit-Baltistan, including empowering the legislature and judiciary to make independent decisions for its governance. The Federation’s overarching control must thus be minimized by empowering local legislative assemblies. Revenue generated within Gilgit-Baltistan can be shared, and locals must be consulted in how the region’s revenue and resources are utilized by the Federation. The opportunity cost here is easier; Pakistan may not get the full cut of Gilgit’s resources but it is supporting the will of a people who are only suffering in this conundrum. The other opportunity cost is simple but grave. Should Pakistan continue to use the region’s resources, it must honour Article 257 of the Constitution and heed the people’s desires. It must make Gilgit-Baltistan a fifth province but risk in doing so accepting India’s annexation of Jammu and Kashmir. In any case, Pakistan must decide which front to lay its arms on. And it must decide soon.
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] Article 257 of the Constitution of Pakistan 1973.
[2] ‘Gilgit-Baltistan: Aspirations for Identity, Integration & Autonomy’ Human Rights Commission of Pakistan (HRCP) (Lahore, March 2017) <http://hrcp-web.org/publication/wp-content/uploads/2017/04/Gilgit-Baltistan-report-Aspirations-for-identity-integration-autonomy.pdf> accessed 18 October 2022 12.
[3] ‘Gilgit-Baltistan To Become Pakistan’s Fifth Province: Fawad Chaudhry’ (Geo.tv, 2020) <https://www.geo.tv/latest/316353-gilgit-baltistan-to-become-pakistans-fifth-province-fawad-chaudhry.> accessed 18 October 2022.
[4] ‘Strike in GB against new tax law’ (Dawn.com, 2022) < https://www.dawn.com/news/1714040> accessed 18 October 2022.
[5] ‘Gilgit-Baltistan: Aspirations for Identity, Integration & Autonomy’ Human Rights Commission of Pakistan (HRCP) (Lahore, March 2017) <http://hrcp-web.org/publication/wp-content/uploads/2017/04/Gilgit-Baltistan-report-Aspirations-for-identity-integration-autonomy.pdf> accessed 18 October 2022 12.
[6] Livia Holden ‘Law, Governance, and Culture in Gilgit-Baltistan: Introduction’ (2019) 10 South Asian History and Culture.
[7] Ibid.
[8] ‘The value of Gilgit Baltistan’ (The News International, 2022) https://www.thenews.com.pk/print/237568-The-value-of-Gilgit-Baltistanaccessed 18 October 2022.
[9] See Al-Jehad Trust and Pakistan Civil Aviation Authority cases below.
[10] Al-Jehad Trust and others. vs. Federation of Pakistan and others Supreme Court of Pakistan (1999 SCMR 1379) [13] 108.
[11] Arhama Siddiqa, ‘Reforms In Gilgit Baltistan’ (2017) 37 (1) Strategic Studies.
[12] HRCP (n 2).
[13] Ibid.
[14] Holden (n 6).
[15] Kunwar Khuldune Shahid, ‘Gilgit-Baltistan: Pakistan’s Geopolitical Loophole’ (The Diplomat, 2019) < https://thediplomat.com/2019/02/gilgit-baltistan-pakistans-geopolitical-loophole/> accessed 18 October 2022
[16] Gilgit-Baltistan Economic Report: Broadening the Transformation’ World Bank (2011) <http://documents.worldbank.org/curated/en/939151468062972670/pdf/NonAsciiFileName0.pdf> accessed 18 October 2022 vi-vii.
[17] ‘Protests held across GB against new order’ (DAWN.com, 2018) <https://www.dawn.com/news/1410103 > accessed 18 October 2022.
[18] ‘Appellate Court suspends GB Order 2018’ (DAWN.com, 2018) < https://www.dawn.com/news/1415071 > accessed 18 October 2022.
[19] Civil Aviation Authority etc. v. Supreme Appellate Court Gilgit Baltistan (PLD 2019 SC 357)
[20] Rosalyn Higgins, Problems And Process: International law and How we use it (Clarendon Press 1995).
[21] David Raic, Statehood and the Law of Self-Determination (Leiden, Boston: Martinus Nijhoff Publishers 2002).
[22] See Accordance with International law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion 2010 I.C.J. Re 304, para 9) opinion by Yusuf, J.
[23] See Preamble to the 2009 Order, “WHEREAS it is expedient to undertake necessary legislative, executive
and judicial reforms for granting self-governance to the people of Gilgit-Baltistan”
