The talk of the town these days is that the federal government is in the process of declaring Gilgit-Baltistan (GB) the fifth province of Pakistan. Rushed decision making in this regard can weaken Pakistan’s principled position on Kashmir and annoy the people of Azad Jammu and Kashmir considering the AJK High Court has declared the GB an AJK territory. This essay advocates ‘fiscal federalism’ as an interim constitutional arrangement without ‘political federalism.’

Jammu and Kashmir has been declared ‘disputed’ by the United Nations. The administrative responsibility for the AJK and the GB has been assigned to Pakistan as a “trust obligation” through UN Security Council resolutions (UNSC) and UN Commission for India and Pakistan.

The J&K situation has been politically problematic since 1830s when Gulab Singh’s troops invaded the area for the first time. Both areas now known as Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (GB) came under the control of the princely state of J&K in 1846 through the Treaty of Amritsar. During British rule in India, GB was part of the Frontier Territories of the princely state of J&K. A part of that territory was declared Gilgit Agency by the British in 1878 and then again in 1889. Till 1935, it was jointly governed by the British and the J&K. It was then leased by the British to Maharaja Hari Singh (of J&K) for 60 years. At the time of partition of India, a large part of what is now GB was under the control of Maharaja Hari Singh.

In October-November 1947, Gilgit Scouts (paramilitary troops established by the British), the residents and Pashtun tribals overthrew the Dogra Raj. (The people of GB celebrate November 1 as their Independence Day.) The Karachi Agreement of 1949 gave the AJK and GB (formerly known as Northern Areas) in Pakistan’s control.

Scholarship exists on the controversy of the ‘timing’ and ‘nature’ of accession with Pakistan. Javaid Hayat, in his PhD thesis, emphasised that there is no consensus on the timing of the signing the instrument of accession with Pakistan. According to him, “The government of AJK and the government of Pakistan have no locus standi.”

However, historian Yaqoob Bangash and columnist Shabbir Mir support the “formal” accession narrative.

Following the Karachi agreement, a Ministry of Kashmir Affairs and Northern Areas was established in March 1949. It is now known as the Ministry of Kashmir Affairs and GB. Initially, the GB was governed under the Frontier Crime Regulations (FCR). In 1970, the first election was announced for the Northern Areas Advisory Council.

During the Presidency of Zulfikar Ali Bhutto, the FCR and taxes were abolished and Northern Areas Legislative Council was constituted. In 1979, the construction of Karakorum Highway (KKH), which links China and Pakistan and passes through GB, brought greater attention to the area.

In the latest reform episode (August 30, 2009), the Gilgit-Baltistan Empowerment and Self-Governance Order, 2009, was promulgated. Resultantly, GB Council was established on the pattern of the AJK Council in May 2010 under Article 33 of the Order, 2009. The Order 2009 provided a “province-like status” to the Northern Areas while renaming those as Gilgit-Baltistan.

There are three tiers of constitutional structure for the GB. Tier 1 is the Government of Pakistan which exercises legislative and executive authorities in the subjects of defence, foreign policy, international trade, foreign aid and currency issuance. Tier 2 is the Council for GB which is similar to the role of federal government for the four provinces. The Council acts like an anchor between GB and federal government.

Tier 3 is Legislative Assembly and government for GB for the remaining subjects, including day-to-day affairs of the territories. It is important to mention that the subjects under the domain of the governments of GB are mostly in the charge of bureaucrats appointed directly by the government of Pakistan. The “lent officers” include the chief secretary, the accountant general, the inspector general of police and the auditor general.

Importantly, GB does not have a permanent representation in the federation of Pakistan. There are no seats for the GB people in the National Assembly, Senate, the Council of Common Interests, the National Economic Council, the National Finance Commission or the Indus River System Authority.

The most recent development regarding the constitutional position of GB and AJK is the abolition of the (GB and AJK) Councils in February 2018. This resulted in many subjects, including tax collection, being devolved to the respective assemblies. The decision was strongly opposed in the GB. As a result, the GB council was retained in the May 2018 meeting of the National Security Committee.

The GB was also given a tax exemption for five years (levied in March 2012). It has been given an “observer” status in the NEC, the IRSA, the CCI and the NFC.

There is a suggestion that the GB should be given permanent representation in the NFC without changing its political status. Another suggestion is for it to be declared a province and yet another for a FATA-like merger with KP.

In its May 29, 1999, judgment of the Supreme Court of Pakistan had held that residents of GB are “citizens of Pakistan in all intents and purposes”. The residents of GB and AJK are “de jure” citizens as they hold the Computerised National Identity Cards (CNIC) and passports of Pakistan. However, a GB resident cannot become prime minister of Pakistan as there is no representation in the NA. However, GB natives settled in other parts of Pakistan can vote and become members of the respective provincial assembly as well as the National Assembly.

Many GB residents want the area to remain independent till such time that the J&K question is resolved in line with the UN resolutions. An AJK High Court judgment of 1993 (rendered by Chief Justice Malik Majeed) had held GB a part of AJK. Later on, the Supreme Court of AJK reverted this decision on ‘technical grounds’ but ruling about the area being a part of J&K was maintained.

As such a unilateral decision by Pakistan to declare the territory a province of the country may not be acceptable. It is suggested that there should be an interim constitutional arrangements under Article 257 which says that “when the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State.” The arrangements should last until a permanent solution of the Kashmir dispute in line with the UN resolutions.

This might require amendments to certain clauses of the constitution including Article 1(2), Article 40, Article 41, Article 51, Article 59, Article 257 and the Second Schedule. For the purpose of ‘fiscal federalism’ Article 160 (2a) should be amended to include a reference to the GB.

If the government intends to empower the residents of the GB, the best option is to go for ‘fiscal federalism’ instead of a political change of status.

The writer teaches at University of Peshawar and can be reached at naimat@uop.edu.pk. He tweets @NAIMAT84