Status of Northern Areas

The News International: August 30,2004

Tuesday 31 August 2004, by Afzal A SHIGRI

Northern Areas comprises of five districts namely
Gilgit, Ghizer, Diamer, Skardu and Ghanche. These were
independent valleys ruled by the local Rajas or Mirs.
During the nineteenth century, these areas were
subjugated by the Dogra rulers of Kashmir and were
integrated in the State of Jummu and Kashmir. In 1947
when the Indo-Pakistan subcontinent became independent
and was partitioned, the people of Gilgit and
Baltistan also saw an opportunity to get rid of a
repressive alien occupation and revolted against the
Dogra rule. Handful of valiant Muslim officers and men
from the state army and Gilgit Scouts with very
limited resources but active support of the people
confronted the regular troops of the Kashmir state,
defeated them and gained independence.

Love for Pakistan of the people of Northern Areas was
time and again put to test and they were never found
wanting in standing firmly with their country men.
During the confrontations with India they bravely bore
the brunt of enemy attacks. They fought for Pakistan
in 1947-1949, faced the enemy in 1965 and 1971 and
then in 1999 in Kargil conclusively showed their
loyalty for the motherland with their blood and sweat.
The graves of Shaheeds of Kargil with Pakistan flags
in every graveyard of villages of Northern Areas are a
testimony to the total and unquestioned devotion of
these people to Pakistan. The people of this area,
however, have continued to be treated unjustly.

Successive governments tried to address these issues
but the ministers of Kashmir Affairs and Foreign
Affairs have insisted on maintaining status quo. Their
view is based on the fallacious argument that the area
is disputed, therefore, nothing can be done to change
their status as it is likely to adversely affect
Pakistan’s stance on Kashmir issue. Since for the
government in Pakistan this issue was never a
priority, therefore, no one looked into the
fundamental constitutional issues in its correct
perspective. No one is prepared to even take note of
the apparent conflicting arrangement for AJK, which in
the context of Kashmir dispute has the same status as
the Northern Areas.

The real reasons are the petty, selfish and short-term
gains that accrue to the bureaucracy in Islamabad and
the incompetence of the Foreign Office that has failed
to examine this vital issue in its correct perceptive.
I am witness to this drama when the officers of
Foreign Office tried to dissuade the then President
General Zia-ul-Haq from allowing the representatives
from the NA to sit in the assembly as observers. He
however over ruled them and issued instructions to
allow a representative from NA to sit as observes in
the assembly. This however did not last long.

The demand for fundamental rights by the people was
either suppressed or brushed aside as an irritant that
did not call for any attention. Some residents of
Northern Areas and al Jihad Trust, therefore, filed
two constitutional petitions in the Supreme Court
seeking relief in the year 1994. A five-member bench
of the Supreme Court gave its landmark judgement in
the case in CP 17/1994 on May 28. 1999. The relief
sought by the petitioners was as follows.

"It is, therefore respectfully prayed that the
Fundamental Rights under the constitution of Pakistan
Article 184(3) be enforced keeping view the
declaration of Human Rights, the constitutional status
of the people of Northern Areas be declared and being
citizen of Pakistan be given full participation in the
Federation of Pakistan. The litigant public is given
the right to appeal, review revision before th
Supreme Court of Pakistan. The Provincial Government
status be given."

The petition was filed because the people of Northern
Areas considered themselves Pakistanis. Their only
link to the State of Jammu and Kashmir is the forceful
subjugation of the area by the Dogra ruler of Kashmir.
After liberation of the area and decision to join
Pakistan of its own free will, this link was severed
forever. The government of Pakistan contested the
jurisdiction of the Supreme Court and also opposed the
grant of any rights to the people of this area. The
stand taken by the Federation makes interesting
reading and also brings out a typical bureaucratic
point of view on this sensitive issue. These
bureaucrats barring a few honourable exceptions have
no vision and are not prepared to find any alternate
solutions for a problem.

"- The Pakistan exercise de jure administration in the
Northern Areas. Assuming though not conceding, this to
be untenable, and then the doctrine of de-facto
administration applies here.

That Since Pakistan is sovereign in the Northern Area
and expends huge amounts for the betterment of the
people and on lubricating vast administrative
machinery (judiciary and executive), it also has the
inalienable right to regulate such laws which may be
deemed appropriate to earn revenues.

That there is no Constitutional or Legal obligation to
extend the Northern Areas representation in
Majlis-e-Shoora.

The institution of Northern Areas act as a de facto
executive, a de facto judiciary and a de facto
legislature. Therefore, their acts are valid.

The stance of the Federation reflects of total disdain
for the aspirations of the people of the area to be
treated as equal citizens of Pakistan that they had
joined after throwing off the Maharaja’s yoke. This
was an unfortunate and extremely irresponsible stand
before the highest judicial forum in the country. The
Supreme Court after detailed examination of all
aspects of the case and after hearing the Federation
decided that it had the jurisdiction to hear the case
and issue directions to the Federation. The honourable
court did not accept the grant of the status of
Pakistani citizenship to the people of NA, but in view
of the Constitutional provisions and the Universal
Declaration of Human Rights to which Pakistan is a
signatory held that people of the NA be given the
right of self rule and an independent judiciary that
should enforce fundamental rights guaranteed in the
Constitution. The Supreme Court also held that the
existing administrative arrangement did not meet the
minimum benchmark of being governed by a
representative executive and an independent judiciary.
The Supreme Court, therefore, directed the Federation
to take appropriate steps to:

"Ensure that the people of Northern Areas enjoy their
above fundamental rights, namely, to be governed
through their chosen representatives and to have
access to justice through an independent judiciary
inter alia for enforcement of their Fundamental Rights
guaranteed under the Constitution."

Six months were given to execute these directives but
these are yet to be implemented. However to appear to
be doing something in pursuance of this historical
decision the Federal Government made some peripheral
amendments in Northern Areas Council. Legal Frame Work
Order, 1994 and issued a Northern Areas Court of
Appeals (Establishment) Order, 1999. These amendments
and orders fall far short of the clear and specific
direction of the honourable Supreme Court. There is an
elected council and a leader of the house but the
Chief Executive is the Minister for Kashmir Affairs
and Northern Areas. He neither belongs to the Northern
Areas nor have the people of this area elected him.

The people of the NA, therefore, after the fateful day
of 1st November, 1947 when they joined Pakistan
continue to be deprived of their fundamental rights
and even the judicial verdict has failed to move the
government and the ministry continue to side step the
issue and their stranglehold continues on the area.
Every one including all the government servants even
for petty cases have to pay homage to the all-powerful
ministry for routine decisions. While the NRB harps on
devolution of authority to local government, it has no
time for the NA and has not even considered this issue
in the light of the judgement of the Supreme Court. I
will not be surprised if NRB is not even aware of this
decision. This antipathy has resulted in
disillusionment and frustration and a small segment of
population has started demanding for drastic changes
in the existing arrangement. Overwhelming majority of
the people of this area continue to be fiercely
patriotic Pakistanis but continued denial of their
rights can result in demand that may not be in their
interest as well as of the country.

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