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Wednesday, November 25, 2015

My Views on the Constitutional Status for GB


CONSTITUTION OF
THE ISLAMIC REPUBLIC OF PAKISTAN, 1973
As Amended by The Constitution Twenty First Amendment Act, 2015

PART I
Introductory
1. The Republic and its territories:-
(1) Pakistan shall be Federal Republic to be known as   the Islamic   Republic of   Pakistan hereinafter   referred to as Pakistan.
(2) The territories of Pakistan shall comprise:-
(a) the Provinces of 1Balochistan, the 2Khyber Pakhtunkhwa, 3the Punjab and 4Sindh;
(b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital;
(c) the Federally Administered Tribal Areas; and
(d) such States and territories as are or may be included in Pakistan, whether by accession or otherwise.

(3) Majlis-e-Shoora (Parliament) may by law admit into the Federation new States or areas on such terms and conditions as it thinks fit.

2. Islam to be State religion.− Islam shall be the State religion of Pakistan.

GILGIT-BALTISTAN
EXTRA ORDINARY GAZETTE OF PAKISTAN PART-II

GOVERNMENT OF PAKISTAN
MINISTRY OF KASHMIR AFFAIRS AND
NORTHERN AREAS
****
Islamabad, the 9th September, 2009

AN
ORDER
          to provide greater political empowerment and better governance to the people of Gilgit-Baltistan;

          WHEREAS it is expedient to undertake necessary legislative, executive and judicial reforms for granting self-governance to the people of Gilgit-Baltistan and for matters connected therewith or incidental thereto;

          NOW, THEREFORE, the Government of Pakistan is pleased to make the following Order:-
1.       Short title, extent and commencement.- (1) This Order may be called the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009.
(2)     It extends to the whole of areas Gilgit-Baltistan. 
(3)     It shall come into force on at once.    


HISTORICAL CONTEXT

The administrative status existing in the area at the time of the events in 1947 were as under:
A.      Gilgit:
·              Gilgit Wizarat  - Gilgit proper with its immediate surrounding district is known as the Gilgit Sub-division, and up till 1935 the Sub-division was administered by Kashmir. The Gilgit Sub-division should not be confused with the Gilgit Agency. The former is about one tenth the area of the latter. In 1935 the British Government appreciated the necessity for the Sub-division being included in the Agency and coming under the direct control of the Political Agent owing to the increasing infiltration into Chinese Sinkiang of Russians. The Sub-division was therefore leased from the Maharaja of Kashmir for a period of sixty years and the entire area was taken under the absolute control of the Political Agent.
·              Chilas & Republics of Darel and Tangir - Administered by the Assistant Political Agent in Chilas with a native "Raja Ardal".
·              Political Districts of Punial, Gupis/Koh-e-Ghezir, Yasin and Ishkoman - Each headed by an appointed native Governor with restricted autonomy and under considerable control of the Political Agent.
·              Mirs of Hunza and Nager - Hereditary and almost independent with only limitation of conducting foreign affairs in which consultation with the Political Agent in Gilgit was a requirement.


B.      Baltistan:
For centuries, Baltistan consisted of small independent valley states that were connected to each other through blood relationships of the rulers (rajas), trade, common beliefs and strong cultural and language bonds.[8] These states were subjugated by force by the Dogra rulers of Kashmir in the nineteenth century.[9] 
Valley State                                      District      
Khaplu                          Ghanche
Skardu                          Skardu
Shigar                           Shigar District
Kharmang           Kharmang
Roundu                         Skardu
Gultari                          Skardu

After the successful rebellion of Gilgit scouts on 31st October- 01st November 1947, some elements of Kashmir infantry and above all strong feelings of the populations the governor sent from Kashmir in August 1947 was overthrown. Subsequent military campaigns in 1948 under express approval of the newly established government in Pakistan resulted in the total freedom of the territory initially designated as NORTHERN AREAS.



The Mirs and the Governors of the Political Districts exercised their option to accede to Pakistan [obviously in consonance with the wishes of the populations]  their territories and communicated the same either in writing or verbally to Major William Brown, Commandant GILGIT SCOUTS - obvious authority in Gilgit at that time - who in turn communicated it through wireless messages to Khan Abdul Qayyum Khan, the Prime Minister [CM] NWFP Peshawar as well as Col Bacon PA Khyber [the last British Political Agent in Gilgit] with an additional request to post a Pakistan Government Political Agent expeditiously. Further parleys with the delegations from the region in 1950 resulted in continuation of the administrative structure of an Agency which continued till 1974. Ever since different options have been instituted by GOP.

On 29 August 2009 the Government of the Islamic Republic of Pakistan announced the creation of Gilgit–Baltistan, a new province-like autonomous region with Gilgit city as its capital and Skardu as the largest city. A sizable number of young generation activists are however not satisfied and raise their voices for a vigorous constitutional status – some even demanding cessation and independence.

VIEWS OF GOP

European Union constituted a committee under the chairpersonship of Baroness Nicholson of Winterbourne. This committee compiled its report titled "Kashmir Present Situation and Future Prospects" on 21 March 2007. The report also deals with the status of Northern Areas (Now Gilgit and Baltistan). Embassy of Pakistan in Brussels through its letter dated 8th May 2007 expressed the government's views. 

In this context, I would like to bring to your notice the following salient points regarding the Northern Areas of Pakistan:

• The Northern Areas of Pakistan consist of six districts, viz. Gilgit, Skardu, Diamir, Ghizer, ,Ghanche and Astore, Its population is around 1,5 million and it spreads over a vast area of 72,495 sq. Km.

• Historically, the Treaties of Lahore and Amritsar of 1846, which constitute the basic documents regarding the establishment of the State of Jammu and Kashmir, do not recognize its territorial limits on the areas westwards of the River Indus. The whole of Northern Areas, which include Gilgit Agency and Baltistan Agency, was not a part of Jammu and Kashmir State in August 1947.

• The States of Hunza and Nagar were never treated as part of Jammu and Kashmir. They were autonomous states but nominally under the suzerainty of the Dogra ruler. Hunza and Nagar acceded to Pakistan and the instrument of accession signed by the Mirs (rulers) of these states was accepted by the Quaid-e-Azam in 1947.

• The UNCIP resolutions are also relative to the State of Jammu and Kashmir and do not, in any manner, apply to any part of the Northern Areas which were not included in the State of Jammu and Kashmir before 1947 From this perspective, integration of the Northern Areas with Pakistan is also not prohibited.”

CONTEXTS FOR CONSTITUTIONAL STATUS/GOVERNANCE STRUCTURES IN THE MODERN WORLD


1.     Federalism, Human Rights and Peace within the State
2.      The main constitutional Principles:
a.     History
b.     Rule of Law
c.      Protection of Minorities
d.     Democracy
3.     Built and driven by the society and the sub-national societies.
4.     Democracy and freedom are results from the French Revolution. Other people in Europe tried also to free themselves from feudal powers. The 1848 “Peoples Spring” were economically and politically - “we want to be our own masters of our life” - reasonable.
5.     The way it was achieved and its societal diversity marked the political design of the new Federations.
6.     Strong Decentralization and Sharing of Powers:
·         Bicameral Parliament as the U.S.A.
·         Collegial Federal Government (No strong President)
·         Double majorities for Constitutional Powers
7.     Power sharing - vertical and horizontal - helps you to integrate a diverse society and produces stability by high legitimacy. Real participatory rights transform a primarily representative, indirect democracy into a direct democracy.
8.     Nobody has so much power that he has the ambivalent privilege, not to have to learn. When the democratic power is really shared with the people, political progress and social change have to be understood as collective learning processes. Every citizen has the right to propose where he or she thinks progress and change are necessary!
9.     Inside the infrastructure of a democracy has to be modernized in order to remake its direct democracy serve the people best.
10.                        Self-Determination Secession and International Law,  Historic cases of secession:
a.     1776 USA Declaration of Independence And later Secession of the South?
b.     1903 Panama
c.      1901 Venezuela and Equador from Columbia
d.     1905 Norway from Sweden
e.      1947 India Pakistan
f.       1971 Bangladesh
g.     1974 Jura
h.     2006 Montenegro
i.       2008 Kosovo
j.       2011 South Sudan?
11.                        Threatening secession:
a.     North of Iraq
b.     Kashmir
c.      Congo
d.     Belgium
e.      Italy
f.       Spain
g.     Quebec?
h.     Sri Lanka?
12.                        Problems:
a.     Right of self-determination of whom Majority, qualified majority of Federal unit?
b.     Peoples? Citizens with residence?

13.                        Procedure:
c.      Who decides?
d.     Democracy: Question, Citizens, qualified Majority?
14.                        Transitory Law
e.      Property
f.       Recognition
g.     Contemporary examples:  
a.     Montenegro Article 60 Withdrawal from the State union of Serbia and Montenegro
Upon the expiry of a three-year period the member state shall have the right to initiate the procedure for a change of the state status, i.e. for withdrawal from the State union of Serbia and Montenegro.
A decision to withdraw from the State union of Serbia and Montenegro shall be made after a referendum has been held. The Law on Referendum shall be passed by a member state, taking into account recognized democratic standards. The member state that exercises the right of withdrawal shall not inherit the right to international legal personality and all outstanding issues shall be regulated separately between the successor state and the state that has become independent.
If both member states declare in a referendum that they are in favour of changing the state status, i.e. in favour of independence, all outstanding issues shall be resolved in the succession procedure, as was the case with the former Socialist Federal Republic of Yugoslavia
b.     Badinter Arbitration Case:
                                                                                     i.      that in the case of a federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the state implies that the federal organs represent the components of the Federation and wield effective power;
                                                                                   ii.      The composition and workings of the essential organs of the Federation, be they the Federal Presidency, the Federal Council, the Council of the Republics and the Provinces, the Federal Executive Council, the Constitutional Court or the Federal Army, no longer meet the criteria of participation and representatives inherent in a federal state; Consequently, the Arbitration Committee is of the opinion:
·         that the Socialist Federal Republic of Yugoslavia is in the process of dissolution;
·         that it is incumbent upon the Republics to settle such problems of state succession as may arise from this process in keeping with the principles and rules of international law, with particular regard for human rights and the rights of peoples and minorities; that it is up to those Republics that so wish, to work together to form a new association endowed with the democratic institutions of their choice.
c.      Ethiopian Constitution Article 39 the Right of Nations, Nationalities and Peoples:  Every nation, nationality or people in Ethiopia shall have the unrestricted right to self determination up to secession.
h.     Secession Procedure: The right to self determination up to secession of nation, nationality and peoples may be exercised:-
a.     Where the demand for secession is approved by a two thirds (2/3rds) majority of the legislature of the nation, nationality or people concerned.

b.     Where the Federal Government within three years upon receipt of the decision of the legislature of the nation, nationality or people demanding secession, organises a referendum for the nation, nationality or people demanding secession.

c.      where the demand for secession is supported by a simple majority vote in the referendum.
d.     where the Federal Government transfers power to the parliament of the nation, nationality or people which has opted for secession.
e.      where property is partitioned in accordance with the law.
i.       Effects of a clear Vote: No direct legal effect despite a clear referendum result purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation.  The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in the country as a whole.  Democratic rights under the Constitution cannot be divorced from constitutional obligations Nor, however, can the reverse proposition be accepted: the continued existence and operation of constitutional order could not be indifferent to a clear expression of a clear majority of secessionists that they no longer wish to remain in the country.  The other provinces and the federal government would have no basis to deny the right of a provincial government to pursue secession should a clear majority of the people of choose that goal, so long as in doing so the rights of others are respected.  The negotiations that follow such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed.  There would be no conclusions predetermined by law on any issue.  Negotiations would need to address the interests of the other provinces, the federal government and indeed the rights of all citizens both within and outside the province, and specifically the rights of minorities.
j.       Why Negotiations? The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of the province, and that of the country as a whole.
15.                        Protection of Minorities : We emphasize that the protection of minority rights is itself an independent principle underlying of constitutional order. Consistent with this long tradition of respect for minorities which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, and in s. 25, a non-derogation clause in favour of the rights of aboriginal peoples.
16.                        Right of Self-determination: where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.  Term “People”? While much of the population certainly shares many of the characteristics (such as a common history,language, religion and culture) that would be considered in determining whether a specific group is a "people".
17.                        Self-determination:
a.     Internal: The recognized sources of international law establish that the right to self-determination of a people is normally full-filled through internal self-determination – a people's pursuit of its political, economic, social and cultural development within the framework of an existing state.
b.     External: A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances.
18.                        There is no necessary incompatibility between the maintenance of the territorial integrity of existing states and the right of a "people" to achieve full measure of self-determination.  A state whose government represents the whole of the people or people’s resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

CONCLUSIONS
1.     GILGIT and BALTISTAN can be accepted as the 5th province in 1[2]d of the constitution of Pakistan through section 1[3] of PART-1 as an interim entity provided the present government in GB conducts a referendum in all the districts. The question asked from each citizen should be :
a.     Do you want to be the 5th province?
b.     Maintain Status Quo or
c.      Secede from Pakistan either to join AJK or form an independent BOLORISTAN?
2.     Based on majority vote for option 1c from one or more districts, the legislative assembly will hold negotiation with the representatives of the network of LSOs [people] in the light of principles covered above.
3.     Since majority of budget [mostly dependant on Federal Grants] is presently utilized on salaries of a disproportionate central institutional set up for the government, it needs to be revamped towards the noble goals enshrined in the 2009 empowerment order. Excellent examples of village/tehsil/district governments do successfully exist in the world and recently in the KPK Province in Pakistan. In GB we have 72 LSOs established by AKRSP while the republics have an effective JIRGA system as equivalents to these entities. These can be integrated in the governance as CIVIL SOCIETY institutions in fulfilling the expectations of development and improvement in quality of life of citizens of GB through the same legalized mechanism as implemented in the Province of KPK.  Golden rule of democracy: “we want to be our own masters of our life” and Built and driven by the society and the sub-national societies- will have a real presence in our lives. READ: DIRECT DEMOCRACYGB GOVERNMENT RESPONSE.
4.     A steering committee be immediately established which is responsible for planning and implementing eGovernment in GB.


NOTE:  Research paper “Kashmir and the northern areas of Pakistan: Boundary-Making along contested frontiers” by Hermann Kreutzmann,  contains maps with delineations and historical documents.This research will be of immense help to policy/decision makers in resolving boundary issues.



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