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Justice for the Northern Areas

Justice for the Northern Areas

Author: M Ismail Khan
Publication: The News
Date: August 7, 2006
URL: http://www.thenews.com.pk/daily_detail.asp?id=18902

It is not quite clear under what law the 1.5 million people of the Northern Areas (Gilgit-Baltistan), a region of 72,496 sq km, are ruled by Pakistan as a federal territory for 58 years. The ambiguous status of the Northern Areas is not only a diplomatic and political embarrassment; the issue also poses a major legal challenge for Pakistan's judicial system and the legal community. The only other region in the world being run without appropriate legal and constitutional cover is perhaps the US-ruled Guantanamo Bay in Cuba.

The Supreme Court of Pakistan, in a landmark decision (Al-jihad Trust v. the Federation of Pakistan, 1999), advised the Government of Pakistan -- "To initiate appropriate administrative/legislative measures within a period of six months from today to make necessary amendments in the Constitution/relevant statute/statutes/order/orders/rules/notification/notifications, to ensure that the people of the Northern Areas enjoy their fundamental rights; namely, to be governed through their chosen representatives and to have access to justice through an independent Judiciary…for the enforcement of their fundamental rights guaranteed under the Constitution."

It is now more than six years since that decision. Yet, as the Human Right Commission of Pakistan notes, the region continues to wait for appropriate legislative measures to ensure provision of fundamental rights to its people. For its part, the federal government did made an effort to modify the Legal Framework Order (LFO) issued by the PPP Government in 1994. However, other then creating some additional salaried positions, the initiative failed to provide any fundamental change in the existing governance framework.

The questions here are: one, does the Supreme Court have the jurisdiction to hear lawsuits about the Northern Areas when the region is outside the jurisdiction of the Constitution of Pakistan? Two, do the fundamental human rights enunciated in the Constitution apply to the people of the Northern Areas when the Constitution has no jurisdiction over the territory?

The decision of the Supreme Court does give an impression that the court considers the Federally Administered Northern Areas within its judicial purview, and the federal government, by partially acting upon the order of the court in carrying out limited reforms, has validated the court's position. Yet, many legal experts point to the fact that the Supreme Court action is similar to the one made by the US Supreme Court recently with regard to Guantanamo Bay in that the US Supreme Court has jurisdiction over the US government's actions though Guantanamo Bay may lie outside its ambit.

Over the years, the people of the Northern Areas have been demanding a high court on the pattern of high courts of the rest of Pakistan, as well as the right to appeal in the Supreme Court like other Pakistanis. Some political leaders from the region also knocked on the door of the Supreme Court of Azad Kashmir. Their appeal was turned down by the court, which said that the Northern Areas are not an administrative area of the government of Azad Jammu and Kashmir, and that their relationship with Azad Kashmir is solely by virtue of their being part of the Kashmir dispute.

There are different opinions in the Northern Areas about the historical context of the region with regard to the dispute. Many people argue that unlike Azad Kashmir, which was liberated by tribes from the NWFP, while the leaders of Jammu and Kashmir played a wait-and-see game, the people of the Northern Areas launched a spontaneous rebellion to liberate the region from Dogra Raj and decided to join Pakistan, and thereby severed whatever sovereignty the state of Jammu and Kashmir maintained over the area.

The Rani of Hunza, Attiqa Ghazanfar, who is a member of the Northern Areas Legislative Council, says that the region did not willingly become part of Pakistan. "My father-in-law, the late Mir of Hunza and the Raja of the neighbouring Nagar state, signed a formal instrument of accession in favour of Pakistan," said the Rani, whose husband serves as the Deputy Chief Executive to the Federal Minister of Kashmir Affairs and Northern Areas.

Many people in the Northern Areas are willing to see the region become part of a united state of Jammu and Kashmir, as an equal partner. They believe that historically the Northern Areas had been part of the state for about one hundred years. But it is a matter of debate how they became part of the state, surely not through a plebiscite, and as to what constitutional status the region should have been granted in 1948.

Last year, during a peace conference in Delhi, the writer, together with former Azad Kashmir Prime Minister Sardar Abdul Qayyum and his colleagues, met Dr Karan Singh, the son of Maharaja Hari Singh who signed the Instrument of Accession in 1947. Dr Karan Singh, a member of Indian Parliament who is a close associate of Sonia Gandhi, made an interesting comment. He said: "My ancestors established a state. We purchased Kashmir from the British and extended our rule from Ladakh up to Gilgit. However, in 1947 we lost control of our state. Now I, a legal heir of my state, realise that with two very powerful countries ruling different parts of the state -- I don't see one would ever be able to claim the state."

Dr Singh's message was obvious: there is no way he can claim anything save the Northern Areas. According to the Partition of India Act, his father had a choice only until the midnight of August 15, 1947. But the former Maharaja's assertion raises serious questions about the legality and relevance of the Treaty of Amritsar, the Instrument of Accession, the Karachi Agreement, and the UN resolution with regard to the political status of the Northern Areas. Who, then, is responsible for the plight of the people of the Northern Areas? India, Pakistan, the United Nations or some of those self-centred Kashmiri leaders in Indian- and Pakistani-administered Kashmir.

The political leadership in the country may be lacking in sagacity and foresight to right this historical wrong. But the Supreme Court, as the guardian of the rights contained in the Constitution, can help provide justice to the people of the Northern Areas.

The Northern Areas should be recognised as the fifth province of the federation of Pakistan (even if this has to be subject to the final resolution of the Kashmir dispute). Or they should at least be provided the same political structure and rights that are available to Azad Kashmir. Pakistan's superior courts should take action in order to ensure that the people of the Northern Areas are not denied justice, not even in the name of Kashmir, just as the inmates of Gitmo cannot be denied access to justice in the name of the War against Terror.

The writer is from Skardu and is currently based in Islamabad. He has a background in media, public affairs and development. Email: ismail.k2@gmail.com

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