How Strong Is Azad Kashmir’s Claim On Gilgit-Baltistan?
There has been much hue and cry with the recent declaration by the Imran government to grant the region of Gilgit Baltistan the status of a province. Many have celebrated the step and have called it a positive reform that will surely help answer the growing grievances of the people of the Gilgit Baltistan whereas some have called it as a betrayal to the Kashmir cause and an illegal annexation of a territory that belongs to Kashmir. For this purpose it is prudent to study whether Azad Kashmir holds any strong claim to the region and these claims must be studied from a historical and legal aspect.
The modern day region of Gilgit-Baltistan was not always as it is today. It was home to various states and tribes that fiercely fought for their independent status and would fight armies coming from the vale and the western region. The current region itself was never such a polity as it is right now. The region consisted of three major areas that were known as the State of Hunza, State of Nagar and the areas of Gilgit. The region in itself saw local dynasties, most notable of them being the Tarakhan Dynasty and the Raissiya Dynasty, both of whom are seen as historically being the drivers of the prosperity in Gilgit Baltistan. And for a thousand years the tribes of the area, from Chitral to Haramosh, ruled the region in genuine peace and prosperity. While region held separate identities, there was a sense of unity in defending the region and the dynasties themselves had tributary rule over the areas of Hunza and Nagar.
This peace would last till the 1800s where conflict took birth from the conterminous region of Gilgit-Baltistan and foreign invaders arrived from Afghans to Sikhs. Its most stunning example is in 1841, Sulaiman Shah, Raja of Yasin, conquered Gilgit. Then, Azad Khan, Raja of Punial, killed Sulaiman Shah, taking Gilgit; then Tahir Shah, Raja of Buroshall (Nagar), took Gilgit and killed Azad Khan. Tahir Shah’s son Shah Sakandar inherited power, only to be killed by Gohar Aman, Raja of Yasin of the Khushwakhte Dynasty when he took Gilgit. Then in 1842, Shah Sakandar’s brother, Karim Khan, expelled Yasin rulers with the support of a Sikh army from Kashmir – which left a garrison over there to rule the region. Meanwhile Zarowar Singh captured the town of Skardu and with it the Balti region since after the fall of Skardu Fort, they went westward capturing the fort of Astor.
A large part of the region came under the forceful occupation of the Sikhs by 1842. However their rule was anything but peaceful.
The British transferred control of the territory to the Dogra rulers of Jammu and Kashmir by the Treaty of Amritsar of 1846. Six years later, a rebellion by local tribal leaders chafing under Dogra rule led to the ouster of the Maharaja’s forces. In 1860, however, Ranbir Singh recaptured it and annexed it to the state of Jammu and Kashmir as the capital of the Gilgit Wazarat. Given the seizure of Dardistan’s geostrategic potential, London agreed to give Ranbir Singh military aid in exchange for the stationing, in 1877, of a British agent in Gilgit to supervise the conduct of policy on this frontier. The existence of this agency, however, was short-lived, since relations between the Maharaja and the political agent, Major John Biddulph, were strained. In 1881, the agency was withdrawn, freeing the Maharaja of supervision. In 1889 Colonel Algernon Durand faced his first challenge coming from the rulers of Hunza and Nagar who had joined forces with the tribes of Gilgit and Baltistan to fight against the Maharaja. The two states were quelled, under what would be known as the Hunza-Nagar campaign of 1891. Hunza and Nagar were absorbed into Gilgit Agency by 1892-3. The aggression was another display of the imperialistic policies implemented by the British in the region.
The war started when Durand decided to enhance the connectivity of the region by building roads and telecommunication networks to forts so that the area could be defended in case of any emergency. The rulers of Hunza and Nagar regarded this as a threat – since the very remoteness itself of the region was a major defense for its people. In 1890 Durand started reinforcing the Chalt Fort, thinking that the Mirs of Hunza and Nagar would attack. The Mirs sent a warning to Durand to cease his activities on the fort and its road – since the fort was on the Gilgit side of the border. Durand did not listen and started to finish the work in great haste. The Mirs responded by closing their routes to the mail that came from the British residents that were posted in Chinese Turkestan. The British took this as an act of war and proceeded to annex the region.
Through this process, a historically diverse region with separate identities and separate statehood came under the control of the Dogras as the Gilgit Agency. The State of Hunza and State of Nagar always saw themselves as separate Princely States.
With the war in Kashmir at full swing by the 24th pf October 1947 and the declaration of Azad government and the accession of the Maharaja to India, it was becoming perfectly clear that the Muslim dominated region and the Gilgit Scouts would not be willing to fight for the Dogra nor for India. Major William Brown, the leader of the Gilgit Scouts, was well aware of that fact and with the signing of the instrument of accession by the Maharaja, the people of Gilgit were inflamed. On the 31st of October 1947, Major Brown sent a platoon of Scouts to surround the residence of the Maharaja’s governor of Gilgit Agency, Ghansara Singh. Other platoons took control of important locations in the city. On the 1st of November, Ghansara Singh surrendered, and a provisional government consisting of leaders of the victorious forces Was brought to power with Raja Rais Singh as President and Mirza Hassan Khan as Commander in Chief. There was great discussion on whether the State of Gilgit should announce its independence or join Pakistan. Major Brown had telegraphed Khan Abdul Qayyum asking Pakistan to take over the region since it did not have the means to fight against the might of the Indian forces. Khan Muhammad Alam Khan reached the region and on the 16th of November he found them squabbling and arguing which angered him, leading him to state openly;
“You are a crowd of fools led astray by a madman. I shall not tolerate this nonsense for one instance[…] And when the Indian Army starts invading you, there will be no use screaming to Pakistan for help, because you won’t get it.”
This statement saw the provisional government disintegrate and join Pakistan on the 16th of November 1947. Two days later the states of Hunza and Nagar followed. The region of modern-day Gilgit-Baltistan was now part of Pakistan.
Historically speaking the region was always distinct from the valley of Kashmir and was formed part of a larger conquests of Sikh and British. The people of Gilgit-Baltistan never saw themselves as Kashmiri.
Now the Gilgit revolution could also be seen as a Revolutionary Constitutionalism. However the important element of Revolutionary Constitutionalism, which is the introduction of constitutionalist system to the people, did not happen – instead the region became a black hole. Bangash, the Raja orderly of Chilas, stated that the entire region was pro-Pakistan and would never accept Indian rule and the only way to preserve the region would be through independence of Kashmir rather than joining India. With the events of October 1947 happening as they did, on the 1st of November the Gilgit Scouts revolted and on the 2nd of November the flag of Pakistan was raised in different areas.
The biggest problem was that although the fervor to join Pakistan was high, the entire operation was conducted by military scouts and the provisional government of an amalgamated agency formed through conquests done by the Sikh rulers, Afghan rulers and the British rulers, knew that it lacked the immediate consensus to create a proper representative government. Major Brown, by then, had contacted Khan Abdul Qayum – who sent a political agent named Alam Khan to the region. The provisional government lacked effective control and knew that without proper support from the scouts and the Pakistani army, their position would not be stable in face of an Indian invasion. They tried to garner legitimacy but were refused immediately by Alam Khan, who stated that they do not understand the gravity of the situation and joining Pakistan was the only way to keep India at bay. The 16-day provisional government decided to accede to Pakistan.
Therefore in 1949 Pakistan faced a major challenge. With the war over, Pakistan now had a region that was 6 times larger than Azad Kashmir, wanted no amalgamation with Kashmir and had acceded to Pakistan in a separate manner. The Azad Kashmir government legally claimed legitimacy over all of the state of Kashmir which included the Gilgit agency. For them, losing the Gilgit agency would mean giving up an area of 72,971 km2 away. The biggest legal question was that if such an act were legal then the same argument could be used by the Dogra rulers to legitimize their own act of accession to India. If Gilgit-Baltistan could accede to Pakistan simply because there was no writ of the Azad government and they had their own provisional government, then how could the very same action for the Dogra be considered as illegitimate? This needed an answer. Thus for a small period Pakistan saw the Gilgit agency as a legal part of Azad Kashmir. But the region could not be administratively handed over to Azad Kashmir. Pakistan saw an inevitable rebellion if the region that had acceded to Pakistan was simply gifted to Azad Kashmir. For this purpose Pakistan recognized the Azad government as the successor government and the rightful authority of the Princely State of Kashmir and the Muslim Conference as the sole political party that represented the people of Kashmir and with them signed the Karachi Agreement 1949 where the leaders conceded to Pakistan the region of conterminous Gilgit Baltistan and Conterminous Ladakh.
To legitimize the merger without weakening the claim of the Azad government, Pakistan needed the consent of the Azad government. If Pakistan were to go ahead without consulting the Azad government of an equal state, as a legal merger, then it would weaken the position of Pakistan at the United Nations – since such a merger would lead credence to the Dogra merger. The idea that the regions outside the writ of the Azad government were free to merge with areas they felt as such would strengthen Indian claims on the state of Kashmir. Pakistan could not allow that.
Thus the only way to solve the problem was to see the Azad government as the legitimate ruler of Gilgit-Baltistan which, considering the aspirations of the people of Gilgit Baltistan and Ladakh and their existence as a separate nation which has always fought for freedom, would respect their wishes and have them join Pakistan as a separate entity. The approval needed to be perfect: i.e. the Muslim Conference must also provide its consent so that there could be no loophole in this process. Lastly Pakistan took control of all affairs concerning Gilgit-Baltistan and Ladakh. This was definitely something that Pakistan had to secure since as mentioned above, the constitutional and legal balance was key here and the union of the area with Pakistan could not be established without the consent of the Azad government which was recognized by Pakistan as ruler of all of Kashmir.
Now the most interesting thing is that despite the rebellion being in Gilgit, Pakistan also took control of the affairs of Ladakh – which meant that Pakistan declared the provisional government in Gilgit to have sufficient relevance in the affairs of Ladakh. And their union with Pakistan included the areas of Ladakh too. This is a very interesting aspect of the agreement since it meant that concerning Ladakh, Pakistan declares itself as the sovereign ruler and not Kashmir. Although the events of the future prevented Pakistan from claiming Ladakh separately as a Pakistani territory occupied by a hostile power rather than a Kashmiri territory occupied by a hostile power, however it does determine this fact that Pakistan, at one time, thought along the lines of the former possibility.
The result of this process was that the region became a separate entity for Pakistan and the Azad government lost all sovereignty over the region itself. Through this Pakistan was able to keep the region in the dispute whilst establishing its separate nature from Azad Kashmir. Through this we can safely assume that Azad Kashmir conceded its claim on the region in 1949 and did not contest that said claim till the 1970s. Now for some time the courts of Azad Kashmir and Pakistan treated each other as foreign courts and separate states and this was made through a number of precedents. In 1972 the Azad Kashmir government passed a resolution for the return of Gilgit Baltistan to the administration of Muzaffarabad but Pakistan did not heed and saw it as interference of the region in the internal affairs of Pakistan. There came upon another famous landmark judgment that would remain a major bone of contention between the two. As mentioned in the previous chapter, Azad Kashmir declared itself as the revolutionary government and the true representative of the people of Kashmir and this was highlighted by the courts of Azad Kashmir in several judgments which I have mentioned above.
Now in 1949, the Azad government, under such authority had signed the Karachi Agreement where the state of Azad Kashmir had conceded the region of Gilgit-Baltistan and Ladakh to Pakistan with all its affairs. Pakistan had thus continued to recognize the Azad government to legitimize the Karachi Agreement and its revolutionary nature and since 1949 had treated Gilgit Baltistan as a separate territory from Azad Kashmir. Yet despite signing, the courts of Azad Kashmir went one step further and declared the region as part of Gilgit-Baltistan. The petition was filed in the High Court of Azad Kashmir in 1993 in the case titled Malik Muhammad Miskeen and 2 others vs The Federation of Pakistan. The case was based on the growing calls for autonomy and governance issues that were rising in the region of Gilgit-Baltistan which were largely ignored. They had filed the petition asking to be recognized as citizens of Azad Kashmir and for their grievances to be answered.
The court passed a stunning judgment that shocked Pakistan: it held that there was no legitimate cause to keep the Northern Areas and their residents detached from Azad Jammu and Kashmir, and that their residents are State Subjects thus validly citizens of Azad Kashmir. The judgment passed by Chief Justice Abdul Majeed Malik, directed the Pakistan government to provide maximum support in amalgamation of the region with Azad Kashmir and in extension of the writ of the Azad government over the region, establishment of a legal system that is connected to the Azad Kashmir legal system and the forward implementation of the Interim Constitution 1974 over the region.
The judgment was seen by many in Gilgit-Baltistan to be an attempt to balance out the Shia-Sunni demographic in the region since the petitioners were Sunni and were from the Sunni-dominated Diamer region. The Shia of Gilgit-Baltistan did not look at the judgment kindly especially after the 1988 sectarian riots that shook the region. They were not alone in this, since Pakistan also saw this with horror. The region, which was historically seen by Pakistan as its own territory and it had leaped over quite a few hurdles to make sure the territory would be part of the Kashmir dispute but not part of Azad Kashmir.
And so the judgment was immediately appealed by the Government of Pakistan and the appealed case titled The Federation of Pakistan vs Malik Muhammad Miskeen and 2 others and the case was decided on the 14th of September 1994 where the courts declared that the High Court of Azad Kashmir had acted beyond its powers and the order was declared null and void. The court observed that while Gilgit Baltistan was indeed part of the State of Jammu and Kashmir, however that was not the case for Azad Kashmir which had its territorial limits prescribed within the Interim Constitution 1974 Act and the courts of Azad Kashmir could not go beyond the constitutional limits that were set upon it. Thus, the government of Azad Kashmir could not establish constitutional administration over the region like that. Pakistan presented the Karachi Agreement to both the High Court and the Supreme Court. The former declared it a temporary arrangement whereas the former declared it as evidence of the fact that Gilgit-Baltistan was not part of Azad Kashmir. While the judgment of the Superior Court did not mention to whom the region belonged, it did provide sufficient cause for Pakistan to declare its extremely controversial stance that while the region was part of the State of Jammu and Kashmir, it was not part of Azad Kashmir.
While the government of Azad Kashmir would pass resolutions on this, the legal chapter on the status of Gilgit-Baltistan and the limitations of Azad Kashmir was now closed. This was cemented immediately in a landmark case titled Al-Jehad Trust versus The Federation of Pakistan In May 1999, the Supreme Court of Pakistan delivered a landmark judgement on the constitutional status of the Northern Areas in response to Constitutional Petition 17 of 1994, which sought the following remedies:
- Enforcement of fundamental rights under the constitution of Pakistan;
- Declaration of the Northern Areas’ constitutional status;
- Declaration of the people of the Northern Areas as full citizens of Pakistan, with the right fully to participate in the affairs of the federation; and
- Granting of provincial status.
Declaring that Pakistan exercised de facto as well as de jure administrative control over the Northern Areas, the Supreme Court ruled that the people of the Northern Areas were “citizens of Pakistan, for all intents and purposes […] and their Fundamental Rights were protected within this very court”. Azad Kashmir did not file any response to the order nor contest the order itself.
The claim of Azad Kashmir over the region of Gilgit-Baltistan is non-existent as by all intents and purposes the region is a separate entity. The people of Gilgit-Baltistan see any attempts of merger with Azad Kashmir as an attempt to weaken the Shia-majority status of the region by increasing the Sunni hold. The sectarian factor is another important element in the Azad Kashmir claim. The people of G-B historically see themselves as extremely different from the people of Azad Kashmir and trace their history with separate links.
The entity of the Princely State of Kashmir was formed through blood and conquests and anything less than a separate status for the people of Gilgit-Baltistan would be a great injustice to their history and identity.