THE Kashmir issue is unfinished/chronic chapter of partition. Indian Army invaded the State on the pretext of accession made by the then Dogra Ruler against the settled formula of the partition and occupied major part of the State against wishes of the local population, while people of Azad Kashmir resisted the Indian attack and remained independent. Gilgit-Baltistan also was in occupation of Dogra regime since 1846. The local population never ever accepted the sovereignty of Dogras as such they fought against the Dogra forces and repelled them from their land and got independence. Resultantly, the regions over which Maharaja was ruling, divided into three parts: Occupied Kashmir, Azad Kashmir and Gilgit-Baltistan. In this article I would like to discuss the governing systems prevailing in the above three parts to enable the readers to understand what kind of governing system prevails in which part at present.
Occupied Jammu & Kashmir: This main part of Jammu & Kashmir is under Indian occupation which is being governed by India under Article 370 of the Indian Constitution. India has framed a constitution for occupied Jammu & Kashmir called “The Constitution of Jammu and Kashmir, 1956”. The salient features of the Constitution need to be narrated are that, its preamble confirms the so-called accession of the State to India by the Maharaja and also declares the Jammu & Kashmir as an integral part of India. Article 2(a) of the Constitution confirms the applicability of Indian Constitution in relation to the occupied state. The Constitution gives fundamental rights to people of Jammu and Kashmir. The Constitution introduces a legislature for the occupied state consisting of the Sadar-i-Riyasat and two Houses known as the Legislative Assembly and the Legislative Council. Article 5 of the Constitution administratively empowers the Executive Body in the State and empowers the legislative body to legislate for the occupied state except those in respect to which Indian parliament has power to make laws for the state under the provision of the Constitution of India. The Constitution also gives legislative body in the state to amend the Constitution under its Article 147. Azad Jammu & Kashmir: The Azad Jammu and Kashmir Interim Constitution Act, 1974 “Through Act VIII of 1974” people of Azad Kashmir are enjoying their fundamental rights under Interim Constitution till determination of the State of Jammu and Kashmir through plebiscite under auspices of the United Nations. It limits the already liberated territories by the people from Dogra regime to Azad Kashmir and is silent about liberated territory of Gilgit-Baltistan. The people of Azad Kashmir enjoy parliamentary system of Government having their own elected Premier, Legislative Assembly and a Legislative Council. Under the Article 31 of Interim Constitution both the Council and Assembly are having powers to make laws. Under Article 33 of the Interim Constitution legislative body of the Azad Kashmir is empowered to amend the interim constitution with the restriction that the legislative body shall not be empowered to amend section 31, 33 and 56 without prior approval of Government of Pakistan.
GB: “The Government of Gilgit-Baltistan Order 2018”:- The region remained under occupation of Dogra Rulers up to 31st October 1948 but it was liberated from Dogras on the day 1st of November 1948, declared the region an “independent state” thereafter Government of Pakistan took control of, but from day first the region is governed through bureaucratic system, imposing executive orders and the last one is “The Government of Gilgit-Baltistan Order 2018”. The same is also an Administrative Order framed and approved by Premier and his cabinet and promulgated by the President. Neither any provision of Constitution empowers the Premier and his Cabinet nor the Parliament has empowered the Premier through an Act of Parliament to frame this “Order”. The Premier himself framed the “Order” and also got unlimited legislative powers in respect of Gilgit-Baltistan. He empowered himself to amend the “Order”. The Premier also enjoys full administrative powers in respect of Gilgit-Baltistan. Though an elected Chief Minister with a cabinet have been introduced through this “Order” but with limited administrative powers. A Legislative Assembly has been framed with very limited powers to make laws. The Assembly even has no powers to amend this “Order”. The “Order” gives a list of fundamental rights to the people of Gilgit-Baltistan without guaranteed by the “Constitution”. The list is meaningless without introducing an independent Judicial system to implement. While the Judicial system is subservient to PM
Suggestions:- i) The fifth province is popular demand of people of GB, if the sovereign authorities of Pakistan think the demand to be considered but in my opinion the stake holders in Pakistan deem it fatal to the Kashmir issue as such the demand seems impossible to be taken seriously. ii) The parts of Azad Kashmir and Gilgit-Baltistan both relate to Kashmir Issue but people of Azad Kashmir are enjoying their fundamental rights, administrative, legislative and Judicial systems through Interim Constitution under “Act VIII of 1974”. The people of Gilgit-Baltistan are deprived of even such system which is prevailing in Azad Kashmir as such the same system must be introduced in Gilgit-Baltistan too and no person of common prudence can deny the fact that introduction of this system in respect of Gilgit-Baltistan can injurious for Kashmir issue. iii) The majority of people of Gilgit-Baltistan are against merger but in my opinion both parts can be merged into one unit but with certain conditions.
— The writer is retired Justice Supreme Appellate Court, Gilgit-Baltistan.