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Pakistan Occupied Kashmir: Changing The Discourse

Brief Background

Pakistan occupied Kashmir (PoK) consists of the so called 'Azad Jammu and Kashmir (AJK)' and 'Gilgit-Baltistan' (referred to as the 'Northern Areas' till August 2009). PoK is part of the state of Jammu and Kashmir (J&K), and hence an integral part of India. It has been under the illegitimate control of Pakistan since October 22, 1947 when tribal lashkars supported by Pakistan invaded the princely state of J&K and soon afterwards the ruler of the state acceded to India. India succeeded in repulsing the invaders from the valley; but, when the Indian army sought to clear the state of these lashkars, it was confronted with regulars from the Pakistan army. The matter was referred by India to the United Nations in the hope of a fair and legitimate solution, which would put an end to external aggression and armed confrontation between the two states.

In the subsequent period, Indian hopes of fair play were shattered when some of the major powers in the UN Security Council sought to equate an aggressor state (Pakistan) with the victim of aggression (India). The UN proposals of April 21, 1948 and August 13, 1948 were diluted considerably by March 14, 1949, clearly disregarding the Indian viewpoint. From this time onward, India took exception to the approach taken by the Security Council on the Kashmir issue. It felt that it could never expect justice from the UN body in the prevailing climate of Cold War rivalry. India went ahead with its policy of ascertaining the will of the people of J&K through democratic means. In September 1951, the people of J&K elected a Constituent Assembly (interestingly, all the members were elected unopposed) which went on to ratify accession of the state to India on February 15, 1954. Finally, the assembly drafted a constitution for the state which was adopted on November 17, 1956 and came into force subsequently on January 26, 1957. Contrary to the adverse position taken by the UN Security Council on this process, vide its resolutions of January 24, 1957, India held it as free, fair, democratic and legitimate, and regarded the UN resolutions (related to troops pull out and holding of plebiscite as mentioned earlier) irrelevant and inoperative in view of the prolonged Pakistani non-compliance of the UN resolutions.

In sum, one part of the state of Jammu and Kashmir continues to be under illegal occupation of Pakistan while the other part remains with India after accession. India has continued to maintain that PoK is a legitimate part of the Indian Union.

Why PoK is important?

Because of its location, PoK is of immense strategic importance. It shares borders with several countries Pakistan, the Wakhan Corridor of Afghanistan and Tajikistan to the west and the Xinjiang province of the People's Republic of China to the north. Ever since the Karakoram highway (KKH) was built to connect Pakistan with China via PoK, the geopolitical significance of PoK has increased manifold. If PoK were under Indian control, the geopolitics of the subcontinent and its global fall out would have been very different from what it is today. This is because PoK is a gateway to Central Asian republics and to their expanding markets. Hypothetically speaking, access to Afghanistan via the Wakhan Corridor bordering PoK would have given the allied forces a viable option for transporting supplies for NATO forces.

Growing Chinese investment and presence in PoK and its involvement especially in the infrastructure development in the area further underscore the strategic value of PoK. China seeks strategic depth in PoK to extend its influence in the region. In addition, PoK is rich in natural resources and these resources have been subjected to reckless exploitation by Pakistan over the years.

Until very recently, the international discourse on Kashmir had been shaped by Pakistan's portrayal of India as an occupying force in Kashmir committing atrocities on the Kashmiris. In comparison, Pakistan has consistently presented a false picture of PoK as an independent entity. However, the ground reality in PoK became known to the outside world only after the earthquake of October 2005 when international donors and NGOs went there for relief and rehabilitation. They found that the situation there was far from normal and the region sorely lacked basic support structures and amenities. More significantly, the Pakistan state's apathy towards the quake victims came as a rude shock to outsiders who prompted international bodies to take note of all-that-was-not-well within PoK for the past six decades. Apart from the enhanced Chinese presence, PoK is also increasingly coming under the influence of the jihadi ideology. It is, therefore, important to analyse the socio-political and economic situation in PoK and suggest some policy options for India.

PoK since 1947

After accession, the Indian part of J&K followed the democratic path as per Article 370 of the Indian constitution while the area under Pakistani occupation was bifurcated into two - 'Azad Jammu and Kashmir' (AJK) and the 'Northern Areas', which consisted of Gilgit-Baltistan. The leaders of AJK surrendered the Northern Areas to Pakistan under the Karachi Agreement of April 28, 1949.

The 'Azad Jammu and Kashmi r 'government established in PoK, on October 24, 1947, worked like a 'war council'. The Rules of Business (RoB) were framed in order to run the administration of AJK under which the President of AJK was the repository of all executive and legislative powers. Usually, the person holding the confidence of the Working Committee of the Muslim Conference was nominated as the President of AJK. Interestingly, an office of 'Supreme Head' was created above the President in the central government of Pakistan who finally approved all executive and legislation action by the AJK government. The post was abolished in 1952.

In 1948, some rudimentary judicial structure was created for running the judicial administration and some laws of former Jammu and Kashmir State were adopted for use. The RoB were revised in 1952 and sought to define both executive as well as legislative authority. The RoB was revised further in 1957 and this ad hoc system continued till 1960. This office was, however, abolished in 1952 and, thereafter, the President was the Executive Head, who was assisted by some Ministers.

In 1960, after the onset of military rule in Pakistan, the post of President was subjected to election through the “votes of basic democrats”, a system which was also introduced in the rest of Pakistan by Ayub Khan. Another body known as ' AJK State Council' was introduced which was to be elected by the basic democrats. This Council consisted of 12 members elected by the people of AJK, whereas another 12 members were elected by the refugees of Jammu and Kashmir State settled outside AJK, in Pakistan.

In 1964, this system was replaced by the AJK Government Act, 1964. Under this Act, the provision for the State Council was amended; eight of the State Councillors were to be elected by the basic democrats. In 1965, the provision was made for nomination of two members by the President from amongst the refugees settled in Pakistan. The Chairman of the Council was to be nominated by the Chief Advisor (usually a representative of the central government) under the Act, from amongst the council members. The Chairman had to act as the ex-officio President of AJK.

Further, according to the Azad Jammu and Kashmir Government Act, 1968, eight members were elected and four members were to be nominated by the Chief Advisor from amongst the refugees settled in Pakistan to the State Council. However, the Chairman of the Council, elected by the Councillors, was also the ex-officio President. In 1969, a caretaker government was inducted into office. In the elections to the above positions, limited people from AJK had the right to franchise.

In 1970, major constitutional changes were introduced in AJK. The system of adult franchise was adopted through the Azad Jammu and Kashmir Act, 1970. A democratic setup was introduced in AJK. For the first time, the Legislative Assembly as well as President of AJK were also elected on the basis of adult franchise by the people of AJK, and the refugees of the State of Jammu and Kashmir settled in Pakistan. The Assembly consisted of 24 elected members and one co-opted female member. The presidential system worked for about four years, after which in 1974, the parliamentary system was introduced in AJK under the AJK Interim Constitution Act, 1974. This has undergone about 11 amendments so far.

Initially, the Assembly consisted of 40 members, elected on the basis of adult franchise and two co-opted female members. The Assembly now consists of 41 elected Members and eight co-opted members (five females, one member from Ullema-e-Din or Mushaikh, one from amongst AJK technocrats and other professionals, and one from amongst Jammu and Kashmir nationals (state subjects) residing abroad.

Since 1975, the Prime Minister has been elected by the members of the Legislative Assembly. He is the Chief Executive of the state, whereas the President is the constitutional head. Besides, the Executive and the Legislature, a full-fledged Judiciary was also introduced through this Act. The Supreme Court, High Court and subordinate courts are now present, in addition to many other courts, established under various laws.

All these changes in PoK administrative and constitutional structures were made through executive decrees by the Pakistan government. These were not based on any recommendations or representations made by any representative body of the people. Their prime object was to introduce a pattern of administration in the AJK which would be similar to the one prevailing in Pakistan with the exception, that AJK would have a Council, with Prime Minister of Pakistan as the Chairman, six elected members, three ex-officio members including President AJK (Vice-Chairman of the Council), the Prime Minister of AJK or his nominee, Federal Minister for Kashmir Affairs, and five Members to be nominated by the Prime Minister of Pakistan from amongst the Federal Ministers and Members of the Parliament. The Council remains a constitutional body and has extensive powers under the third schedule of the 1974 Act. The Council has exclusive power to legislate on Defence, Security, Foreign Affairs and Foreign Trade, Currency and Coins and matters related to UNCIP resolutions, which are the responsibilities of the Government of Pakistan.

The AJK Council Secretariat is also responsible for the collection of income tax from the territory of AJK. The AJK Council Board of Revenue and its attached department, the Commissionerate of Income Tax with its offices in all the seven districts of Azad Kashmir undertake the collection of income tax. Eighty per cent of the collected income tax is released to the AJK Government while the balance goes to the Council's Consolidated Funds.

In sum, the AJK government enjoys only nominal powers and it functions under strict control of the Pakistani state. The Ministry of Kashmir and Northern Areas (now renamed as Gilgit-Baltistan) is the de facto body which controls by remote, the affairs of the AJK government. The politics of the state, for all practical purposes, is entirely at the mercy of the central government.

The administration of AJK was nominally under an elected government while the real power rested with the government of Pakistan. The first government led by Sardar M. Ibrahim Khan was dismissed in 1953 as were subsequent governments led by Khan Abdul Qayuum Khan, Colonel Sher Ali and Mirwaiz Yusuf Shah, between 1953 and 1962. Following popular protests against Pakistani control in Poonch and Mirpur, the Pakistan government imposed Martial Law in AJK in 1955. After imposition of military rule in Pakistan in 1958, the first elected government headed by K.H. Khursheed (one time secretary of Mohammad Ali Jinnah) under Ayub Khan's basic democracy system, was also dismissed in 1964. Even after the 1974 Interim Act, the ground situation remains the same. Various elected AJK governments, have been forced to take the lead from the central governments in Islamabad, both civilian and military, which have treated the government of AJK with absolute contempt.

Every government in Islamabad has tried to install a government of its own choice in AJK in total disregard of democratic principles. The Pakistan Army which has an overwhelming presence in AJK, exercises a de facto control over the affairs of the political parties in AJK and the administration of the state. The situation is not very different today, even after sixty years of illegal occupation. Interestingly, in 1963, Pakistan ceded about 5,130 sq kms of PoK territory (known as the Trans-Karakoram
Tract) to China, in spite of strong protests by India.

AJK is under the direct rule of the federal government of Pakistan even though it is called 'Azad' or independent. The rudimentary political structure in place in AJK is anything but representative and democratic. It excludes political groups who oppose the idea of accession to Pakistan. The people wielding power in AJK, even when selected by a sham electoral process, hardly exercise any authority and are merely puppets of Pakistan. They have no independent policy and no right to raise issues pertaining to the overall welfare of the people. Its bureaucratic structure is dependentvery heavily on Pakistani officials loaned to the AJK government.

The continuing subjugation by Pakistan over the decades has led to an acute sense of alienation amongst the people. It is worthwhile to mention the case of Mirpuris who were forced to flee their homeland when hundreds of villages were inundated following the construction of the Mangla Dam. The construction took place despite largescale protests. The growing discontent has led groups to demand freedom from Pakistani control and abolition of the Interim Constitution.

In March 2010, the AJK Supreme Court challenged the authority of the Pakistan Supreme Court on the issue of the “unconstitutional appointment of AJK chief justice”. A bench comprising chief justice of AJK Supreme Court, Riaz Akhtar Chaudhry passed an order which stated: “The Supreme Court of Pakistan has no jurisdiction to entertain any petition regarding appointment of judges of superior courts of AJK. Such kind of petition does not come within the jurisdiction and sphere of Supreme Court of Pakistan”. The order further stated that:

“The Supreme Court of Pakistan has no authority to extend its jurisdiction to the area of Azad Jammu and Kashmir because the territories of Pakistan have been defined in Article 1 of the Constitution of Islamic Republic of Pakistan. The Supreme Court of Pakistan cannot go beyond the territories defined in Article 1 of the Constitution of Islamic Republic of Pakistan”.

Such a juridical position reflects the frustration of the people of AJK with regard to continuous Pakistani interference in the affairs of AJK.

The Situation in Gilgit-Baltistan

As has been stated earlier, the other part of PoK, i.e. Gilgit-Baltistan, came under direct rule of the central government of Pakistan after the Karachi Agreement and was termed 'Northern Areas'. However, the region did not find mention in the constitution of Pakistan. The people of the area did not enjoy the constitutionally guaranteed fundamental rights that people in the rest of Pakistan did. They were ruled directly by a joint secretary in the Ministry of Kashmir Affairs and Northern Areas (KANA) Affairs (now Ministry of Kashmir Affairs and Gilgit Baltistan).

Interestingly, in March 1993, on being petitioned about the status of the Northern Areas, the AJK High Court in its verdict took serious note of the unrepresentative and arbitrary administrative system and denial of fundamental rights in the 'Northern Areas'. It directed the AJK government to immediately assume charge of the region and asked the government of Pakistan to assist the AJK government in this task. The Pakistan government appealed against this judgment in the Supreme Court, which in its verdict on 14 September 1994, stated that: “the Northern Areas are part of Jammu & Kashmir state but are not part of "Azad Kashmir" as defined in the "Azad Kashmir" Interim Constitution Act, 1974”. The administrative arrangement underwent some change subsequently and a rudimentary system of representative governance was introduced in the Northern Areas in October 1994 by the formation of the Northern Areas Executive Council, with 26 members which had advisory powers but no legislative authority.

The real power continued to be wielded by the joint secretary to the government of Pakistan in the Ministry of Kashmir and 'Northern Areas' (KANA) and the 'Northern Areas' continued to be the governed as a colony of Pakistan. This situation continued till May 28, 1999, when the Pakistan Supreme Court took note of the “dictatorial and colonial system at work in Gilgit and Baltistan”, and directed the Pakistani government to act within six months to put in place an elected government with an independent judiciary in the Northern Areas and to extend fundamental rights to the people of the region. The Pakistan government announced a package that provided for an appellate court and an expanded and renamed Northern Areas Legislative Council (NALC). Elections to the NALC were held in November 1999, but the body had few real fiscal and legislative powers. The calls for reforms continued. The Musharraf government granted a few more legislative and financial powers in November 2000. The annual budgetary allocation was raised from Rs 60 million to Rs 1 billion. However, the bureaucratic stranglehold over the power structure continued.

'Northern Areas' was renamed 'Gilgit-Baltistan' under the Gilgit-Baltistan Empowerment and Self Governance Order of August 2009 to satisfy the long standing demand of political parties and people for autonomy. However, this package does not meet the genuine demands of the people of the region, who have rejected this as being inadequate. The new leadership emerging in the region regards Pakistan's presence in Gilgit-Baltistan as illegal and argues that Pakistan's, “unilateral decision to impose herself on the land and people of Gilgit-Baltistan is a clear violation of the resolutions of the UNCIP on Jammu & Kashmir”. The Gilgit Baltistan United Movement (GBUM) termed this package ’eyewash’. Manzoor Hussain Parwana, chairman of the GBUM, which is demanding total independence from Pakistan, in his reaction to the package noted: “The so-called provincial set-up is
fraudulent and a blackmailing offer of the government, which aims to conceal the political atrocities and brutal colonial control on the people in the occupied region”.

The Pakistan media commented that other than recognising the identity of the people of the region through a change in nomenclature, “rest of the package [was] a pack of gimmickry”. It was described more as a “symbolic gesture of empathy towards the people rather than a real change in the governance structure of the area”. It was not meant to address the concerns of politically and economically deprived people of PoK. The elections that followed were a cosmetic exercise. In reality, the Legislative Assembly and the council will have to function under the strict control of Ministry of Kashmir Affairs and Gilgit-Baltistan (the successor of KANA) in Islamabad.

International NGOs have reported gross irregularities in the electoral process in Gilgit-Baltistan. Pakistan's dual policy on Kashmir has also been evident from its hesitation in declaring Gilgit-Baltistan to be one of its provinces, in spite of the reform package. Pakistan has tried its best to keep Gilgit-Baltistan apart from the Kashmir issue. However, it has not yet felt confident enough to claim it as an integral part of Pakistan because that will weaken its case on J&K.

The reform package best reflects Pakistan's ambivalence towards Gilgit-Baltistan. A dispassionate analysis of the situation has been made by some Western observers who rightly point out that the, “region is not included in the Pakistani constitution and has no constitution of its own, meaning there is no fundamental guarantee of civil rights, democratic representation, or separation of powers”. The discourse on Kashmir, with its focus on AJK and the Kashmir valley, has been carefully constructed by Pakistan over the years to keep Gilgit-Baltistan off the radar of the international community in order to cover up its ambivalence and injustice towards the region.

The demographic composition of the Gilgit-Baltistan region of the PoK, has undergone a sea change since 1947 as a result of a deliberate strategy of the Pakistani government to turn the original inhabitants of the region (mostly Shia) into a minority. The issue of the large scale migration of Pakhtuns into PoK has not been given its due attention by India and the international community. It is important to note here that India has confined the sale and purchase of land and property within J&K to the people of the state. The Northern Light Infantry (NLI) deployed in the Kargil war by Pakistan, was originally made up of recruits from the region but has of late been increasingly staffed by non-locals, as the local Shias are not trusted anymore. This shows the level of prejudice against the very people belonging to the place. Moreover, as a UNHCR report states, that the “appropriation of land in the Northern Areas by non-Kashmiri migrants from elsewhere in Pakistan, with the tacit encouragement of the federal government and army, has led to dwindling economic opportunities for the local population and an increase in sectarian tension between the majority Shia Muslims and a growing number of Sunnis.

Sectarian divide has plagued PoK for long and much of this has to do with the Pakistan state which has time and again played the sectarian card to fulfil its sinister designs in PoK. The sectarian divide in PoK is well-documented in an ICG report entitled, “The State of Sectarianism in Pakistan” published in April 2005 which states that the Shias in the region were “alienated by state's continued sponsorship of Sunni orthodoxy.”16 The report reveals how Zia manipulated sectarianism to settle political scores with the PPP17 which was suspected to have some hold over the local population. Anti Shia riots engineered by the Zia regime in 1988 engulfed Gilgit-Baltistan and according to the report, claimed 700 lives. Sectarian elements from neighbouring provinces actively patronised by the state have unleashed a reign of terror in the region from time to time. They looted and burnt villages and did not even spare the livestock in their state-sponsored rampage.

Another ICG report published in April 2007 titled, “Discord in Northern Areas,” while describing the origin of sectarian strife in PoK declares that “state and non state actors have manipulated the divisions there since the 1980s, sowing the seeds of sectarian discord”.

PoK is rich in resources. It has vast deposits of precious and semi-precious stones, including world's best rubies and high quality marble. It also has abundant water resources. The Indus and its tributaries flowing through PoK offer huge potential for generation of hydro-electric power with an identified capacity of around 15,000megawatts in the hydropower generation sector alone. The water resources of PoK partially explain China's growing interest in this region despite India's opposition. Pakistan has been draining PoK of its resources over decades and it is ironic that no benefits from these projects accrue to the local people. The controversial Diamer-Bhasha Dam project is one example of this neglect. The dam will be built at Diamer in Gilgit -Baltistan, but the power plant will be situated in Khyber-Pakhtunkhwa. The dam has been opposed by local people on the grounds that it will inundate vast tracts of arable land and will have an adverse impact on the local environment. There is also a conflict between Khyber-Pakhtunkhwa and PoK over the sharing of royalty as the power plants are located in the former.

Ever since the illegal occupation of PoK in 1947, Pakistan has tried its best not to expose the region to national & international media. Hence, there is not much authentic information about the region in the public domain. There is indeed a great deal of ferment and resistance in PoK against Pakistan policy in this region. PoK has, of late, caught the attention of the international community because of the efforts of a rising number of activists and nationalist groups, who are disseminating information regarding Pakistan's highhanded approach towards the people of the region. Notwithstanding the restraints imposed on political activities in PoK, the rise of nationalist movements in PoK have given the local people some relief. These nationalists have exposed the oppression of Pakistani state and authorities in PoK. In recent years the Gilgit-Baltistan diaspora in the West, especially in the United States, has quite actively been taking up the problems and issues relating to their place of origin.





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