Wednesday, 28 May 2008

Historical facts about Kashmir and Gilgit and Baltistan

Historical facts about Kashmir and Gilgit and Baltistan
Dr Shabir Choudhry 11 May 2007

1. Although much has been said and written about Kashmir dispute and what constitutes the state of Jammu and Kashmir, still there is a lot of confusion among people about the status of Gilgit and Baltistan; and whether Kashmir was part of the Two nations Theory or not. This is mainly because of propaganda emanating from communal thinking Pakistani writers and pro Pakistani lobby who don’t want to see an alternative view. In the following pages effort is made to show with evidence the true factual position.

2. Whether some one likes it or not fact is that the Maharaja Gulab Singh was founder of the State of Jammu and Kashmir, as it was at the end of the British Empire in India. Of course history of Kashmir is much older than this, which has remarkable periods of glory and prosperity, but it was not called state of Jammu and Kashmir.

3. Before Akbar the Great invaded Kashmir in 1586, Kashmir had its own empire and history going back to five thousand years, though its geography changed from time to time.

4. Moghal rule ended by Afghans who ruled Kashmir from 1752 to 1819, and Sikhs ruled it from 1819 to 1846. Their rule ended by a defeat of Sikhs when the British East India Company defeated King Daleep Singh and signed the Treaty of Lahore on 9 March 1846.

5. Apart from the territory the Company received 15 million rupees from the Sikh ruler, but still, under article 4 of the Treaty demanded expenses for the war. Sikh ruler was unable to pay any more money but agreed to cede all his forts and territories and interests in the region. Gulab Dingh saw an opportunity to benefit from this situation and bargained to pay in return for territory.

6. Gulab Singh was Raja of Jammu - not Jammu province as it was before the partition, as some areas were not under his control and these rulers were autonomous in their own right. Because of his role in the Second Sikh war (1846), the British rewarded him with Kashmir which was part of the Sikh empire at that time. The price agreed in the Treaty of Amritsar was 7.5 million rupees (£375,000), and Gulab Singh and Governor General H Hardinge’s representatives F Currie and Henry Montgomey Lawerance signed it on 16th March 1846. 1

7. It must be noted that Kashmir was not sold as it existed at the time of partition, 1947: Province of Jammu, Kashmir and Frontier Province. Parts of Jammu, parts of Gilgit and Baltistan and even some areas of province of Kashmir were not part of this sale deed, for example, Muzaffarabad was conquered by the Maharaja in 1854; and parts of Gilgit and Baltistan were invaded before the Amritsar Treaty.

8. One needs to understand political situation of that time- there were small chieftains in various areas who were not independent in the sense we understand it now, but they had independence and free - hand to rule their areas. They allied themselves with major powers of the time. Areas of Hunza, Nagar, Yasin etc and even some areas of Jammu province were in that category.

9. The war continued in the areas what we now know as Gilgit and Baltistan, at times Maharaja Gulab Singh even losing Gilgit and after some month or years re - taking some of the areas back; and as this did not pose a serious threat to the interests of the British so they let it happen. Apart from that they were busy sorting out revolt of 1857, known as Indian Mutiny, and Maharaja of Kashmir and other Rajas helped them in this. Diversion of resources meant local chieftains could raise their heads again. But after Russian advances in Central Asia, especially after a small attack in Chitral the British decided to defeat these rulers Hunza, Nagar etc. themselves.

10. In order to keep an eye on the Russian advance the British established a permanent base in Gilgit and Baltistan, and with consent or understanding of the Maharaja of Jammu and Kashmir, as he was known.

11. What needs to be understood is that by the turn of the century, these areas were legally and constitutionally part of Maharaja’s Kashmir. As a threat of the Soviet Russia became more real the British leased areas of Gilgit and Baltistan from the Maharaja on 29 March 1935 for the period of sixty years.

12. It must be noted here that entire areas of G&B were not leased, as is commonly understood; area of 1480 sq miles from Gilgit Agency was leased. Total area of Gilgit Agency is 14680 sq miles, and total area of that province: G&B and Ladakh were 63554 sq miles.

13. Article 1 of the Lease agreement stated: The Viceroy and Governor General of India may at any time after ratification of this agreement assume the civil and military administration of so much of the Wazarat of Gilgit Gilgit Province ) hereinafter referred to as the ‘Said territory’) of the Jammu and Kashmir as lies beyond the right bank of the river Indus, but notwithstanding anything in this agreement the said territory shall continue to be included within the domain of His Highness the Maharaja of Jammu and Kashmir’. 2

14. What this meant was that:

A/ These areas would still be part of the State;
B/ State flag would still fly over official buildings;
C/ On national days or religious festivals would be celebrated in line with customs and traditions of the state;
D/ Mining rights were still bestowed to the Maharaja;
E/ During all this Maharaja’s officials stayed there.

15. Ownership or legal status doesn’t change just because some thing was leased to someone. In any case these areas were returned to the Maharaja, two weeks before the lapse of paramountcy. The British Raj in India ended on 15th August 1947, and the Maharaja Hari Singh appointed Brigadier Gansara Singh as a Governor of these areas. He reached Gilgit to take control of these areas on 1st of August 1947. The power at that time was with the British and Gilgit Scouts who were established and controlled by them. Brigadier Gansara Singh was accepted as a Governor but was not allowed to assert full control; rather he was advised to be cautious and wait until situation is stable.3

16. However Brigadier Gansara Singh was arrested after the rebellion by Gilgit Scouts on 1st November 1947. One theory is that Gilgit Scouts only acted on advice of some ‘outsiders’ (as they wanted control of these areas to keep an eye on communist activities) to take this action once it was known that Tribesmen (who attacked on behest of Pakistani authorities) have failed to take over Srinagar, and if the Maharaja government survives under the patronage of India then these strategically very important areas would go to the Maharaja, hence India. 4

17. Pakistani contention is that after the ‘liberation’ these areas acceded to Pakistan, but do not offer any evidence in support of this. If that accession took place soon after the ‘liberation’, as Pakistan now claims, then technically they had become a part of Pakistan; then question arises why make them part of the Kashmir dispute and plebiscite which could have gone against Pakistan. The fact is that no accession took place. One may ask who signed on behalf of the people of Gilgit and Baltistan, and who signed on behalf of Pakistan and where is the document- Instrument of Accession?

18. Pakistani governments have always been inconsistent with the Kashmir dispute. Their other claim is that areas of Hunza and Nagar acceded to Pakistan. These areas were legally part of the State of Jammu and Kashmir. The Mirs of Hunza and Nagar sent an annual tribute to the Maharaja of Jammu and Kashmir unti 1947, and both were considered to be among the most loyal vassals of the Maharaja of Kashmir. As such they did not have a separate legal and constitutional existence; hence Rulers of these principalities had no right to accede to any other country. It is like Governor of Punjab (which is part of Pakistan) claiming that I have acceded to India; or Head of Wales Assembly, which is part of United Kingdom, claiming that I have acceded to France.

19. It is interesting to note that government of Pakistan in a meeting held on 4th March 1949 at the residence of the Prime Minister decided not to take any action on these alleged ‘accessions’, as they thought this would prejudice their case on the entire state of Jammu and Kashmir. They thought if plebiscite takes place, and people of Hunza and Nagar are not part of this plebiscite then outcome could go against them. 5

20. UNCIP Representative General AGL McNaughton in his report wrote that these areas should also be part of demilitarisation process

21. Pakistani constitutions of 1956, 1962 and 1973 do not regard G&B as part of Pakistan; and accept that these areas are part of the State.

22. Pakistan signed (Mushtaq Ahmed Gurmani, Minister without Portfolio signed on behalf of Pakistan) the Karachi Agreement on 28 April1949 with leaders of Azad Kashmir – Sardar Ibrahim Khan (President of AJK) and Choudhry Ghulam Abbas (Supreme Head of Muslim Conference) in which (under section A 8) it was made clear that these areas were part of the State.

23. AJK leaders had no right to speak on behalf of people of these areas, and leave them at the mercy of government of Pakistan. Muslim Conference had no branches and no right to sign this treaty with Pakistan.

24. Similarly Pakistan had no right to transfer area (around 2000 sq miles) of G&B to China on 2 March 1963. However Sino- Pakistan Border Agreement once again accepted that these areas were part of the State, as article 6 of the document reads:

‘ The two parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations with the Government of the Peoples Republic of China on the boundary as described in Article Two of the present agreement, so as to sign a formal boundary treaty to replace the present agreement, provided that in the event of the sovereign authority being Pakistan, the provisions of the present agreement and the aforesaid protocol shall be maintained in the formal boundary treaty to be signed between the Peoples Republic of China and Pakistan.’ 6
25. In Ganga Hijacking case (1970/71) Attorney General of Pakistan Yayya Bakhtiar while speaking to a Special Court established under Justice Yaqub, said, that G&B are not part of Pakistan and that they have only temporarily taken administration of these areas.
26. All the writers of that era and up till 1970s, including Lord Birdwood (author of ‘Two Nations Kashmir’), Guru Raj Roy, (author of Legal aspects of Kashmir problem’), Joseph Korbel, (author of ‘Danger in Kashmir’, Alistair Lamb, (author of many books on Kashmir), Prem Nath Bazaz, Justice Saraf etc all agree that these areas were part of the state.
27. When martial law was declared in Pakistan in 1958, it was not extended to G&B, because rulers of that time did not regard G&B as a part of Pakistan, and same happened in 1968. But when Pakistan army invaded its own capital again in 1977, it was decided to extend Martial law to G&B as well.
28. Despite this when in 1981 a petition was filed (RP No 5961) in Lahore High Court (Pakistan) by Dilawar Shah of Gilgit, Justice Dr Javed Iqbal and Justice SMH Qureshi unanimously said that these areas were not legally part of Pakistan, hence Pakistani laws were not applicable there.
29. In a famous case about the status of Gilgit and Baltistan, Chief Justice Abdul Majid Malik of Azad Kashmir High Court ruled that these areas were part of the State of Jammu and Kashmir, and that they were not Pakistan’s Northern Areas, as claimed by Pakistan. 7
30. If these areas were not part of Pakistan up till that time then one may ask what had changed after that? Has there been any plebiscite or any other legal or constitutional change which affects the legal status of these areas? Perhaps they wanted to compensate for losses they suffered in East Pakistan by annexing G&B. In East Pakistan they lost around 57000 sq miles, G&B is more than 28,000 sq miles and AJK is more than 4000 sq miles. So not too bad for Pakistan if they some how can get away with taking these areas.
31. Supreme Court of Pakistan has ordered the government to make necessary amendments in the Constitution to ensure that the people in the ‘Northern Areas’ enjoy fundamental rights, namely to be governed by their chosen representatives, and to have access to justice and fundamental rights
under the Constitution.

32. Chief Executive of Gilgit and Baltistan is always a member of National Assembly of Pakistan, a non - local person, who becomes a minister of Kashmir Affairs and Northern Areas. However some commentators claim that like General Officer Commanding (GOC), Murree for so called Azad Jammu Kashmir Government who holds real power; the real power is in the hands of Corps Commander 10 Corps, Chaklala, Rawalpindi.

33. Everybody who matters in Gilgit-Baltistan is either from the military background or non – local civilian bureaucratic elite which treats the areas as a colony.

34. State property in Pakistan
After independence in 1947, the properties belonging to the State of Jammu and Kashmir (or Maharaja of Jammu and Kashmir or Maharaja of Poonch), located outside its territorial jurisdiction of Jammu and Kashmir were taken over by the AJ&K Government, and a Manager was appointed to manage the property. The Punjab government started treating the property as Evacuee Property, and placed them under the charge of Provincial Rehabilitation Department. Legal and Administrative difficulties arose in the management and maintenance of the property; as such in June 1955 the AJ&K Government requested the Government of Pakistan to take over the management of the property forthwith.
The Government of Pakistan streamlined the administration of the property by promulgating an Ordinance namely Jammu and Kashmir (Administration of Property) Ordinance 1961. By virtue of this Ordinance the entire immovable property situated in the territory of Pakistan that belonged to the State of Jammu and Kashmir (or Maharaja of Jammu and Kashmir or Maharaja of Poonch) on 15th August 1947 was deemed to have been vested in the Federal Government on that date. 8
35. The AJK government or people of AJK do not benefit from this property or it sincome, which is believed to be worth hundreds of million pounds. Like other resources of AJK and G&B government of Pakistan is benefiting from these properties; and AJK government and officials are now too scared to even make a demand about this.

36. In view of devastating earth quake and enormous suffering of the people, government of Pakistan must be asked to divert those resources to help these suffering people.

37. It must also be noted that Chitral was part of State of Jammu and Kashmir at the time of lapse of British Paramountcy on 15th August 1947. In 1873 Mahtar (Ruler) of Chitral acknowledged the suzerainty of the Maharaja of Jammu and Kashmir, and through him accepted sovereignty of the British.

38. Pakistan annexed Chitral and for the first showed it as a territory of Pakistan in the Constitution of 1973. Similarly huge parts of Shandur to Punial were part of disputed Gilgit Wazarat. But today not many people know or speak about status of these Kashmiri areas; and Pakistani officials hope that with time people will forget about status of Gilgit and Baltistan as well.

39. However true nationalists of Jammu and Kashmir and especially nationalist from areas of Gilgit and Baltistan are determined to continue with their struggle to get these areas back from Pakistan. Some nationalists from Gilgit and Baltistan believe that ‘Balawaristan (old name for the area) comprising Gilgit-Baltistan, Chitral, Sheenaki, Kohistan, Ladakh and Kargil.

References.

1. Treaty of Amritsar, in Guru Raj Rao, Legal aspects of Kashmir dispute’, pages 345/6
2. P Stobdan, ‘North – West under the Maharaja in Pakistan Occupied Kashmir under the Jackboot’, ed., Jasgit Sigh, New Delhi- Sidhi Books, 1993, Page 53
3. Dr Shabir Choudhry, ‘If not self determination than what’ pages 44-45
4. Ibid, pages 45-47
5. Ajai Sahni and Saji Cherian, ‘Gilgit and Baltistan the laws of occupation’.
6. P Stobdan, Page 34
7. Details of this verdict are available in a book form and has been reproduced in many books and booklets
8. Source, Government of Azad Kashmir website

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