The talk of the town is that the federal government is in the process of declaring Gilgit-Baltistan (GB) as the fifth province. Any decision in a rush would not only weaken Pakistan’s principled position on Kashmir cause but it may annoy the people of Azad Jammu & Kashmir (AJK) as its High Court declared the GB as their territory. From the lens of political economy, this article pushes for a debate to include GB in ‘fiscal federalism’ without ‘political federalism’ as an ‘interim’ constitutional arrangement.
Jammu and Kashmir (J&K), either administrated by Pakistan or India, is declared ‘disputed’ by the United Nation. The administrative responsibility of AJK and GB is entrusted to Pakistan through “trust obligation” of UN Security Council resolutions (UNSC) and UN Commission for India and Pakistan, UNCIP. The situation of J&K has been politically problematic since late 1830s when the troops of Gulab Singh invaded the area for the first time. Both areas now known as Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (GB) came under the control of princely state of (J&K) in 1846 through Treaty of Amritsar under the control of Dogra Raj. During British rule, GB was part of Frontier Territories of princely state of J&K (Dogra Raj), a part of that territory was declared as Gilgit agency by British in 1878 and then again in 1889. Till 1935, it was jointly governed by both British and Dogra Raj, afterwards the territory was leased by British from Maharaj Hari Singh for sixty years. The notably point is that at the time of partition of India, major part of current GB was under the control of Maharaja Hari Singh.
After the partition of united sub-continent, in October-November 1947 the Gilgit Scout (paramilitary troop established by British), the residents and Pashtun Tribals participated in the revolt against Dogra Raj. That’s the reason the people of GB celebrated November 1 as Independence Day. Formally, the AJK and GB (formerly known as Northern Areas) administration came under the domain of Pakistan through Karachi Agreement of 1949. Though, the scholarships exist over the controversies of the ‘timing’ and ‘nature’ of accession with Pakistan. Javaid Hayat, in his PhD thesis, emphasized that there was no consensus upon the timing of signing the instrument of accession with Pakistan. According to him, “Government of AJK and Government of Pakistan has no locus standi” for this Karachi Agreement; indeed, it is just power sharing formula between AJK, GB and Pakistan. However, the historian Yaqoob Bangash and columnist Shabbir Mir support the narrative that “formal” accession with Pakistan took place during those days.
In March 1949, under Karachi Agreement, the Ministry of Kashmir Affairs and Northern Areas (now known as Ministry of Kashmir Affairs and GB) was established. In initial years of Pakistan, the GB was governed under the colonial rule of Frontier Crime Regulations (FCR). In 1970, the first election for the Northern Areas Advisory Council was announced. In the time of Presidency of Zulfiqar Ali Bhutto, the FCR and taxes of GB were abolished and constituted Norther Areas Legislative Council. In the year 1979, the construction of Karakorum Highway (KKH), which links China and Pakistan is passing through GB, is a major step to bring the attention of Pakistan to GB. In the latest reform of 30th August 2009, the Gilgit-Baltistan Empowerment and Self-Governance Order 2009 was promulgated. Resultantly, GB Council was established similar to the AJK Council in May 2010 under Article 33 of the Order, 2009. The Order 2009 provided “province-like status” to the Northern Areas while renaming it as Gilgit-Baltistan.
There are three tiers of constitutional structure for GB. Tier 1 is the Government of Pakistan which exercise all legislative and executive authorities in the subjects of defense, foreign policy, international trade, foreign aid and currency issuance. Tier 2 is the Council for GB which have the domain of federal legislative and behave like the role of federal government for the four provinces. The councils act like an anchor between GB and federal government. Tier 3 is Legislative Assemblies and Government for GB for remaining subjects including day-to-day affairs of the territories. It is important to mention that the subjects under the domain of governments of GB are mostly carried out by the bureaucrats appointed directly by Government of Pakistan commonly known as “lent officers” such as Chief Secretary, Accountant General, Inspector General of Police, Secretary Health, Auditor General etc. Martin Sökefeld, a scholar, is right to say that GB is “not a de jure but a de facto part of Pakistan” and ‘colonization’ by Pakistan. It is also important to note that GB do not have permanent representation in Federation of Pakistan as they do not have seats in National Assembly, Senate and any federal institutions which coordinate relationship between federal government and provinces such as Council of Common Interests (CCI), National Economic Council (NEC), National Finance Commission (NFC) and Indus River System Authority (IRSA) of Pakistan. Even, they do not have claim on the resources of hydro-electric projects despite the fact that GB has economic resource of water. According to Amir Hussain, a columnist, “GB is loosely defined as a centrally-administered, partially-empowered and economically-dependent part of Pakistan.”
The most recent development regarding the constitutional position of GB and AJK is the abolishment of the Council in February 2018. There was demand by the residents of both territories to give more empowerment to respective assemblies and it can be done with the abolishment of the councils of both territories. After abolishment of AJK council, many subjects devolved to respective assembly including tax collection. However, the members of GB strongly opposed the decision and pressurized the federal government to re-instate the Council. Resultantly, in May 2018, the GB council is retained in the 23rd meeting of National Security Committee. In addition, GB is given tax exemption for five years which was levied in March 2012. GB is also given a status of an “observer” in the NEC, IRSA, CCI and NFC.
A suggestion is that there should be constitutional amendments to have permanent membership of GB in the NFC award while bringing them in ‘fiscal federalism’ without ‘political federalism’.
One argument is that GB should be declared province like the other four as the same is happened in case of FATA merger with KP under 25th Amendment. In May 29, 1999 judgement of Supreme Court of Pakistan says that residents of GB are “citizens of Pakistan in all intent and purposes”. The residents of GB and AJK are “de jure” citizens as they possess the Computerized National Identity Card (CNIC) and passport of Pakistan. A paradoxical position of Pakistan regarding the territories is the member of legislative assembly of GB do not have representation in National Assembly and Senate and cannot become Prime Minister of Pakistan. However, the natives of same territory settled in other parts of Pakistan can vote and may be member of respective provincial assembly and national assembly of Pakistan. However, many residents still consider their connection with the Kashmir valley and wish to be an independent territory after permanent resolution of dispute as per the wishes of the residing people according to the UN resolutions. There is claim on the territory by AJK as well. The High Court AJK judgement of 1993 by Chief Justice Malik Majeed is a reference point in this regard where GB was declared as a part of AJK. Later on, the Supreme Court of AJK reverted this decision on ‘technical grounds’ but maintained the stance that the area is part of J&K. So any unilateral decision by Pakistan to declare the territory as provinces may not be acceptable to the residents of area and contrary to the historical connection of the territory. Hence, it is not only the discretion of Pakistan to declare it as a province or not; instead the historical references and wishes of the residents of GB should be kept on priority in this regard.
It is suggested that there should be an ‘interim’ constitutional arrangements under the Article 257 of Pakistan constitution which says that “when the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.” The ‘interim’ arrangements should be till there is permanent solution of Kashmir dispute according to the UN’ resolutions. For this purpose, some of the clauses of constitution of 1973 have to be amended such as Article 1(2), Article 40, Article 41, Article 51, Article 59, Article 257 and Second Schedule. To bring GB in ‘fiscal federalism’ without ‘political federalism’, there should be an Amendment in Article 160 (2a) of Pakistan Constitution which elaborates “the distribution between the Federation and the Provinces of net proceeds of the taxes”. It should be amended to include the territory of GB.
If the government intends to ‘economically’ empower the residents of the GB, the best option is to go for ‘fiscal federalism’ instead of ‘political federalism’.
Jammu and Kashmir (J&K), either administrated by Pakistan or India, is declared ‘disputed’ by the United Nation. The administrative responsibility of AJK and GB is entrusted to Pakistan through “trust obligation” of UN Security Council resolutions (UNSC) and UN Commission for India and Pakistan, UNCIP. The situation of J&K has been politically problematic since late 1830s when the troops of Gulab Singh invaded the area for the first time. Both areas now known as Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (GB) came under the control of princely state of (J&K) in 1846 through Treaty of Amritsar under the control of Dogra Raj. During British rule, GB was part of Frontier Territories of princely state of J&K (Dogra Raj), a part of that territory was declared as Gilgit agency by British in 1878 and then again in 1889. Till 1935, it was jointly governed by both British and Dogra Raj, afterwards the territory was leased by British from Maharaj Hari Singh for sixty years. The notably point is that at the time of partition of India, major part of current GB was under the control of Maharaja Hari Singh.
After the partition of united sub-continent, in October-November 1947 the Gilgit Scout (paramilitary troop established by British), the residents and Pashtun Tribals participated in the revolt against Dogra Raj. That’s the reason the people of GB celebrated November 1 as Independence Day. Formally, the AJK and GB (formerly known as Northern Areas) administration came under the domain of Pakistan through Karachi Agreement of 1949. Though, the scholarships exist over the controversies of the ‘timing’ and ‘nature’ of accession with Pakistan. Javaid Hayat, in his PhD thesis, emphasized that there was no consensus upon the timing of signing the instrument of accession with Pakistan. According to him, “Government of AJK and Government of Pakistan has no locus standi” for this Karachi Agreement; indeed, it is just power sharing formula between AJK, GB and Pakistan. However, the historian Yaqoob Bangash and columnist Shabbir Mir support the narrative that “formal” accession with Pakistan took place during those days.
In March 1949, under Karachi Agreement, the Ministry of Kashmir Affairs and Northern Areas (now known as Ministry of Kashmir Affairs and GB) was established. In initial years of Pakistan, the GB was governed under the colonial rule of Frontier Crime Regulations (FCR). In 1970, the first election for the Northern Areas Advisory Council was announced. In the time of Presidency of Zulfiqar Ali Bhutto, the FCR and taxes of GB were abolished and constituted Norther Areas Legislative Council. In the year 1979, the construction of Karakorum Highway (KKH), which links China and Pakistan is passing through GB, is a major step to bring the attention of Pakistan to GB. In the latest reform of 30th August 2009, the Gilgit-Baltistan Empowerment and Self-Governance Order 2009 was promulgated. Resultantly, GB Council was established similar to the AJK Council in May 2010 under Article 33 of the Order, 2009. The Order 2009 provided “province-like status” to the Northern Areas while renaming it as Gilgit-Baltistan.
There are three tiers of constitutional structure for GB. Tier 1 is the Government of Pakistan which exercise all legislative and executive authorities in the subjects of defense, foreign policy, international trade, foreign aid and currency issuance. Tier 2 is the Council for GB which have the domain of federal legislative and behave like the role of federal government for the four provinces. The councils act like an anchor between GB and federal government. Tier 3 is Legislative Assemblies and Government for GB for remaining subjects including day-to-day affairs of the territories. It is important to mention that the subjects under the domain of governments of GB are mostly carried out by the bureaucrats appointed directly by Government of Pakistan commonly known as “lent officers” such as Chief Secretary, Accountant General, Inspector General of Police, Secretary Health, Auditor General etc. Martin Sökefeld, a scholar, is right to say that GB is “not a de jure but a de facto part of Pakistan” and ‘colonization’ by Pakistan. It is also important to note that GB do not have permanent representation in Federation of Pakistan as they do not have seats in National Assembly, Senate and any federal institutions which coordinate relationship between federal government and provinces such as Council of Common Interests (CCI), National Economic Council (NEC), National Finance Commission (NFC) and Indus River System Authority (IRSA) of Pakistan. Even, they do not have claim on the resources of hydro-electric projects despite the fact that GB has economic resource of water. According to Amir Hussain, a columnist, “GB is loosely defined as a centrally-administered, partially-empowered and economically-dependent part of Pakistan.”
The most recent development regarding the constitutional position of GB and AJK is the abolishment of the Council in February 2018. There was demand by the residents of both territories to give more empowerment to respective assemblies and it can be done with the abolishment of the councils of both territories. After abolishment of AJK council, many subjects devolved to respective assembly including tax collection. However, the members of GB strongly opposed the decision and pressurized the federal government to re-instate the Council. Resultantly, in May 2018, the GB council is retained in the 23rd meeting of National Security Committee. In addition, GB is given tax exemption for five years which was levied in March 2012. GB is also given a status of an “observer” in the NEC, IRSA, CCI and NFC.
A suggestion is that there should be constitutional amendments to have permanent membership of GB in the NFC award while bringing them in ‘fiscal federalism’ without ‘political federalism’.
One argument is that GB should be declared province like the other four as the same is happened in case of FATA merger with KP under 25th Amendment. In May 29, 1999 judgement of Supreme Court of Pakistan says that residents of GB are “citizens of Pakistan in all intent and purposes”. The residents of GB and AJK are “de jure” citizens as they possess the Computerized National Identity Card (CNIC) and passport of Pakistan. A paradoxical position of Pakistan regarding the territories is the member of legislative assembly of GB do not have representation in National Assembly and Senate and cannot become Prime Minister of Pakistan. However, the natives of same territory settled in other parts of Pakistan can vote and may be member of respective provincial assembly and national assembly of Pakistan. However, many residents still consider their connection with the Kashmir valley and wish to be an independent territory after permanent resolution of dispute as per the wishes of the residing people according to the UN resolutions. There is claim on the territory by AJK as well. The High Court AJK judgement of 1993 by Chief Justice Malik Majeed is a reference point in this regard where GB was declared as a part of AJK. Later on, the Supreme Court of AJK reverted this decision on ‘technical grounds’ but maintained the stance that the area is part of J&K. So any unilateral decision by Pakistan to declare the territory as provinces may not be acceptable to the residents of area and contrary to the historical connection of the territory. Hence, it is not only the discretion of Pakistan to declare it as a province or not; instead the historical references and wishes of the residents of GB should be kept on priority in this regard.
It is suggested that there should be an ‘interim’ constitutional arrangements under the Article 257 of Pakistan constitution which says that “when the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.” The ‘interim’ arrangements should be till there is permanent solution of Kashmir dispute according to the UN’ resolutions. For this purpose, some of the clauses of constitution of 1973 have to be amended such as Article 1(2), Article 40, Article 41, Article 51, Article 59, Article 257 and Second Schedule. To bring GB in ‘fiscal federalism’ without ‘political federalism’, there should be an Amendment in Article 160 (2a) of Pakistan Constitution which elaborates “the distribution between the Federation and the Provinces of net proceeds of the taxes”. It should be amended to include the territory of GB.
If the government intends to ‘economically’ empower the residents of the GB, the best option is to go for ‘fiscal federalism’ instead of ‘political federalism’.