Fundamental rights in Gilgit-Baltistan lower priority compared to resolution of Kashmir dispute, suggests Pakistan SC judgment

  • Gilgit-Baltistan is not constitutionally part of Pakistan, and was hived away from the original state of Jammu and Kashmir in 1949

  • The Karachi Agreement created a small sliver of a territory called Azad Kashmir, and left territory nearly 6 times its size in an administrative limbo

  • SC makes scathing indictment of terrible state of Kashmir "under Indian control"and cites recent Human Rights report on Kashmir which was a distinct diplomatic victory for Pakistan

There's a very strange judgment put out by the Pakistan Supreme Court. This does nothing less than recite a highly selected history of the Kashmir conflict, pauses to praise the moral stance of the Pakistan government, dodges key legal issues in the creation of Gilgit-Baltistan, and finally decides against granting more freedoms to a people who are probably the only people in the world who don't officially exist.

For those unaware of the black hole that is Gilgit-Baltistan, it is not constitutionally part of Pakistan, and was hived away from the original state of Jammu and Kashmir in 1949. The Karachi Agreement — who's text is unavailable anywhere on the net or on the official website of the Pakistani government — created a small sliver of a territory called Azad Kashmir, and left territory nearly 6 times its size in an administrative limbo, with even the most basic fundamental rights denied to its people. This was no accident.

 Fundamental rights in Gilgit-Baltistan lower priority compared to resolution of Kashmir dispute, suggests Pakistan SC judgment

For those unaware of the black hole that is Gilgit-Baltistan, it is not constitutionally part of Pakistan, and was hived away from the original state of Jammu and Kashmir in 1949. Reuters

This area that bordered upon China, Afghanistan and India, giving it an intrinsic strategic value long realised by the British, and coveted by others. In effect, this area made up of a mix of ethnic groups was ruled from Islamabad, with the Kashmir and Northern Areas Minister its virtual monarch.

In 2009, a PPP government decided to bestow some rights upon the region, which included an Appellate Court with some limited powers. This has since become the main source of dispute on two counts. Local people like medical students, social activists and even a Prince, feel that its powers are insufficient, and discriminatory, and ultra vires of the Pakistani constitution. On the other hand, are Pakistani companies and entities like the Federal Board of Intermediate and Secondary Education, the Federal Board of Tourism, and Board of Revenue among others, who feel that it has too much power and want its decisions reversed. It's a task daunting enough for any court, even for a Chief Justice as erudite as Saqib Nasir.

But it would seem not. The judgment opens by quoting Pandit Jawahar Lal Nehru and Gopalaswamy Iyengar to underline the right of self determination of the Kashmiris, and a commitment to plebiscite were made by these leaders, which they did indeed. What is conveniently forgotten is that the relevant UN Security Council Resolution 47 of 1948 required that Pakistan first and foremost remove its troops from Kashmiri territory.

Everything else followed thereafter. Pakistan had refused to do this at the time, and ever since. Despite this real and legal requirement, the court has the gall to say, "The concept of the international nature of the Kashmir dispute was not a demand put forth merely by Pakistan. To the contrary, the repeated statements of Mr. Nehru make clear that the right of self-determination of the Kashmiri people was a right acknowledged, promoted and committed to by the Government of India as well as the Government of Pakistan and embraced and sanctified by the international community through the UN".

Rubbing it in further, the judgment says, "Commitments of this nature ought to be inviolable. Pakistan has certainly not resiled from its commitments-whether to the people of Kashmir or the international community". Its unbelievable, taking the blindness of the justice system to new and unsurmoutable levels.

Then the court goes on to make a scathing indictment of the terrible state of Kashmir "under Indian control" as the most militarised area in the world, and then goes on to cite a recent Human Rights Report on Kashmir which while being roundly criticised by the Indian media, was a distinct diplomatic victory for the Pakistanis. Finally, the court does a series of legal twists and turns, and after emphasising the need for fundamental right being ensured for the people of Gilgit-Baltistan, then proceeds to take away the powers of its courts to decide on anything to do with Pakistan, and then sets in stone an order of 2018 that had led to widespread protests with all political parties showing a rare unity in their opposition.

The logic of the court is that granting of full rights to the people of Gilgit-Baltistan would have eroded Pakistan's "principled stand" on the Kashmir issue as an unresolved dispute. In simple words the court downgrades the granting of fundamental rights to the unfortunate people of Gilgit Baltistan, in favour of a resolution of the Kashmir dispute — at some time in the very very distant future.

The court need not have bothered to have taken this call at all. The very nature of the petitions cited has enough to showcase the fact that Gilgit-Baltistan has no control whatsoever over its territory or its peoples well being.

Take for instance, the petition filed by the Pakistan Agriculture Research Council seeking reversal of the transfer of 24 kanals of land to the Pakistan State Oil by the Gilgit-Baltistan Court, under the "mistaken belief that the said land was owned by the Government of GB". In short, the people of Gilgit-Baltistan have no rights over their own land. Another petition relates an order by the Gilgit-Baltistan court to Shaheen Airlines to carry on with flights to the area even if financially unviable — just as Air India ensures flights to remote corners of India.

This is also shot down as beyond the purview of the court. There are other matters such as by election results, ecological directions and the quashing of the 2018 order itself, all of which now falls by the wayside, as the result of a travesty of a judgment that is so politically directed as to be almost indistinguishable from a formal order of the government of Pakistan.

Updated Date: Jan 21, 2019 13:25:18 IST