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J&K: Status
of "Northern Areas"
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 Jammu
and Kashmir......
....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 the 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.
Excerpted from an article published in the News
International -- courtesy of which it appears here.
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