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l September '04 l

The Kashmir Bachao Andolan Publication

l Vol 4, No 5 l


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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