The territory of Jammu and Kashmir has been an issue of serious contestation between India and Pakistan since 1947. Both the countries have travelled a long way in the past 76 years of their independence, so have the territories of Jammu and Kashmir across the Line of Control (LoC) that divides Kashmir into Pakistan and India. Analysing commitment of both the countries towards this territory, the respective actions taken by the two governments and their energies channelised for the welfare as well as treatment of inhabitants of both the respective lands are the prerequisites for making an assessment to map the path that both the countries have travelled in this region of conflict.
Earlier, several mapping exercises on human rights conditions in both parts have been carried out by various international organisations – at least twice by the OHCHR – in 2018 and 2019. Besides, there are several Universal Periodic Reviews (UPRs), filed by numerous human rights defenders. However, most of the mapping exercises carried out to date, claiming to be human rights centric, have hardly emphasised on human development and growth – intrinsic and integral components of human rights. Moreover, these mapping exercises often exclude comparative analysis of the situations existing in the two states: the Indian state of Jammu and Kashmir (J&K) and Pakistan-administered Jammu and Kashmir which is also called Azad Kashmir or AJK by Pakistan and Gilgit-Baltistan (G-B).
A research report, recently published, and obtained by South Asia Press attempts at mapping the human development and human rights conditions existing in J&K and AJK along with G-B, followed by a comparative analysis of development components under various categories. To ensure empiricism, the report has given preference to the documents of United Nations agencies, followed by the data resources of international organisations based in third countries – other than India and Pakistan.
Human and Economic Development
The AJK government allocated PKR (Pakistani Rupee) 12,156 crore or US$773 million for its 2019-20 budget. On the other hand, J&K spent INR (Indian National Rupees) 88,911 crore or US$12.4 billion in the fiscal year 2019-20. Comparative analysis of the budget of both states reflects that India spends at least 16 times more on J&K as compared to the amount spent by Pakistan on AJK.
Education and Literacy
The civil society reports an alarming situation of education and literacy in AJK and G-B region. According to a Pakistani non-profit organisation Pakistan Institute for Peace Studies, Islamabad (PIPS), G-B region has an extremely low literacy rate. In the area, 14 per cent of men are educated, while education among women is even worse at 3.5 per cent. The condition is a little better in AJK which has literacy rate of 60 per cent.
The exceptionally low education rate is coupled by inefficiency of Pakistani government to tackle terrorism in the region. 12 schools were set on fire and burnt down by terrorists in G-B region in recent times. Most of the schools that were set ablaze were girls’ schools.
India, on the other hand, has been able to establish an infrastructural set-up of education system in J&K and is performing much better than AJK and G-B territories. Besides, the literacy rate in the state is 67.16 per cent.
The Government of India has made significant investments in higher education sector in J&K. As of now, there are ten major State Universities and two major Central Universities in J&K: one Central University in each part of the state – Central University of Jammu and Central University of Kashmir. In addition, there are four premier Institutes of National Importance including Indian Institute of Technology (IIT) Jammu, Indian Institute of Management (IIM) Jammu, National Institute of Technology (NIT) Srinagar and National Institute of Fashion Technology (NIFT) Srinagar.
There are currently six small and big universities in AJK. Except for the University of Azad Kashmir, all other universities were founded in the 21st century and are yet to be fully developed. Besides, there are two small universities in G-B region with small numbers of student enrolments. The Karakoram International University has a comparatively higher number of enrolments than the Baltistan University – which was founded recently in 2017.
The spending on education by AJK government in the fiscal year 2019-20 was PKR 2,716 crore or US$ 173 million. Whereas, the spending on education by J&K government was INR 11,105 crore or US$1.55 billion during the year 2019. In addition, a separate allocation was made for the medical and higher education sectors. It implies that J&K government spends nearly nine times more on education than by AJK government.
In addition to poor educational infrastructure and low literacy, the AJK and G-B regions are also struggling with severe unemployment conditions. Due to acute underdevelopment, there are no private jobs and educated youth are left with extremely limited options. There is no other scope for them besides joining either government services or Pakistan Army’s battalion Northern Light Infantry. They also have to face discrimination in the pay structure. The natives, who join civil services, are paid 25 per cent less than those on deputation from Punjab.
Health and Well-Being
The budget of AJK government for health in the fiscal year 2019-20 was PKR 969 crore or US$62 million. Whereas, J&K government allocated INR 4,447 crore or US$618 million for health in year 2019. The comparison of relative health expenditures of both the governments reflects a similar trend observed in education expenditure, as the budget allocated by J&K government is approximately 11 times more than that by AJK government.
The Infant Mortality Rate (IMR) in Pakistan is 62 per thousand infants – one of the worst in the world. The Pakistani government did not include AJK and G-B while measuring the IMR. The numbers for these two most underdeveloped territories are expected to be the worst. Available statistics suggest that G-B’s maternal mortality ratio hovers between 250 and 600 per 100,000 live births – among the highest in Pakistan.
There are just 33 hospitals with 986 beds in the entire G-B region. The doctor’s coverage to population is expected to be roughly around one doctor per six thousand people.
With such a small number of hospitals/doctors, it is nearly impossible to ensure proper healthcare services to the inhabitants. Health is a rare and costly affair in G-B, available only to the upper and elite classes. District Headquarters hospitals, designated for maternity healthcare in G-B, suffer from lack of power and water supplies. Another facility is the Combined Military Hospital, where patient access is limited due to high costs.
The condition of healthcare is not any better in AJK. There are only 73 hospitals and health centres in AJK (24 hospitals and 49 health centres). There are 4,916 people covered by each doctor in the state much lower than the recommended doctor-population ratio of the World Health Organisation (WHO).
At present, there are at least 5,534 health institutions (4,433 government and 1,101 private) in J&K. However, the doctor-patient ratio in the state is one doctor per 1,658 people as against WHO’s recommendation of one doctor per 1,000 population.
The IMR in J&K is 23 – three times less than that of the AJK. A year ago, J&K was ranked number one in the country for reduction in IMR by eight points in a single year. The government plans to bring the rate further down to single digit by 2022.
According to the latest data available, unemployment rate in AJK is higher than the national average of Pakistan, measuring 10.3 per cent. Whereas it stands at 5.3 per cent in J&K, measuring lower than the national average.
G-B No More Peaceful?
According to the last census held in 1998, population of G-B is around 870,000. G-B is one of the most multi-ethnic, multicultural, and multi-linguist regions of the world. The sparsely populated region consists of a conglomeration of multiple ethnic groups and tribes. According to the available data, population of the region is now approximately 1.5 million, with around 39 per cent Shia, 27 per cent Sunni, 18 per cent Ismaili and 16 per cent Nurbakhshi. Earlier, the region was dominantly inhabited by Shia population with a share of 80 per cent.
Generally, people of G-B have been peace-loving and liberal as compared to other parts of Pakistan. There are reports of numerous inter-ethnic and inter-tribal marriages in the region. Interestingly and strikingly, sectarian identities were seemingly not very dominant in the region until early 1990s, as ethnic and tribal loyalties conventionally surpassed sectarian identities. However, Pakistan has long been making attempts to radicalise the region and induce strong sectarian identities amongst the people. Post 1980s, the G-B people started to gradually divide along sectarian lines – an outcome of Pakistan’s continuous efforts. Today, the region has been converted into one of the most divisive regions in the world. There are bloody clashes and bloodbaths on small and petty issues. Sectarian clashes have also led to downfall of the tourism industry – the only revenue-generating industry in the region.
To worsen the situation, the international political dynamics such as Iranian revolution and Afghanistan war worked as catalysts to further the sectarian violence in the late 1980s and 1990s. Increased activities of religious extremists in the wake of Pakistan’s involvement in Afghan war, coupled with the freedom given to religious groups, vitiated the atmosphere in this Shia-majority region. Pakistan’s manipulation of religious groups for internal and external policy objectives is a major reason for the current sectarian situation in G-B and across the country.
The most severe damage to the culture and ethnicity of the region occurred in 1988, when militants supported by Pakistani military launched attacks in G-B and killed hundreds of people. The unfortunate incident is known as ‘The Gilgit Massacre’ and lasted for 16 days with continuous bloodshed. It led to burning of more than 14 villages and abuse of local women. People were burnt alive in their homes – not for their fault, but for their faith.
A report of the International Human Rights Observer’s (IHRO) G-B chapter, released in 2013, stated that around 3,000 people have been killed in sectarian violence since 1988.
One of the heinous examples of ‘targeted genocide’ of Shia Muslims in G-B is the unfortunate incident of 16th August 2012, in which over a dozen gunmen forced 19 passengers, mostly Shias, off four buses and shot them at point-blank range. It was the third such incident in six months, only to be followed by many more similar incidents.
In a similar incidence, eighteen Shia pilgrims were openly killed on the Karakoram Highway in Kohistan district while returning from Iran on 28th February 2012. Another brutal attack massacred twenty people at Chilas on 3rd April that year.
The Shias, in general, have been subjects of attack across Pakistan. Shias of the G-B region are targeted and killed across the country. In the aftermath of violence that occurred in Gilgit and Chilas, two Shias from G-B were shot dead in Quetta on 3rd April and another was killed in Karachi on 6th April 2012. In another incident, Ahmer Abbas – a Shia student from Gilgit – was shot dead in Karachi on 6th April 2012.
Besides numerous violent attempts of ethnic cleansing in these regions, Pakistan government and military, under the leadership of Zia-ul-Haq, made several continuous attempts to alter the ethnic demography of the region. Post 1980s, Sunni Muslims from hegemonic Pakistani provinces like Punjab and Khyber Pakhtunkhwa started to make an influx through business routes and started to gradually settle in the region. In this regard, researcher and activist Samuel Baid argues, “the influx of outsiders has created two problems, depletion of employment opportunities for the locals and brutalisation of sectarian tension. Along with this, there has come along a gun culture and gradual replacement of spiritual values by class materialism of the new middle class. The outsiders grab land and government jobs. It is not only the jobs that the outsiders grab, but they also plunder upon forest and natural resources in the region. The funds allocated for the development of G-B are spent on the Army deployed there.”
Terror camps that were being run here openly with the active support of the Pakistani Army have bred hundreds of Sunni Jihadis of the Sipah-e-Sahaba Pakistan (SSP), who are now operating all across G-B, killing Shia Muslims.
Inhabitants of Gilgit region, for several years, have been voicing their concern that their region is under Islamist attack from the Western region and being used as safe havens for Jihadis, supported by the Islamist elements in the Pakistan Army.
Human Rights Abuse in GB
At the 13th session of the United Nations Human Rights Council, Abdul Hamid Khan of the Balwaristan National Front said, “human rights abuses are widespread and common in G-B for many decades but the absence of local media and independent judiciary have helped Islamabad to hide its illicit practices.”
The abolishment of the State Subject Rule in G-B in 1974 and introduction of the Gilgit-Baltistan Empowerment and Self-governance Order in 2009 snatched land rights from G-B locals and opened the door for Pakistani settlements in the region. The Pakistani elites, including several Corporate, Army Generals and politicians have acquired land and built sprawling residences in G-B. The list includes Prime Minister Imran Khan, ex-President Parvez Musharraf, Senator Talha Mahmood and Hamid Gul, as well as many others.
Given the fact that G-B is the hotspot of China-Pakistan Economic Corridor (CPEC), it is pertinent to note that many Chinese citizens, who initially came to work on CPEC, have now settled all across G-B. A 2010 Stratfor report estimated the figures and claimed that 7,000 to 11,000 PLA soldiers guard CPEC projects. The number is expected to multiply manifold in the coming decades. Several radical Pakistani musclemen, including ex-Army officers are being roped-in to work on projects of CPEC. These workers, mostly of Sunni faith, permanently settle in G-B, further radicalising the region and wiping out the Shia majority.
Religious tolerance was imbibed across communities in the region until Pakistan initiated a number of divisive measures to create a wedge between various social denominations after 1974.
In one such divisive measure, Islamabad banned the annual Muharram procession in Gilgit in 1974, expecting sectarian clashes and a resultant divide.69 Clashes did occur, and were the beginning of a repeated cycle of sectarian violence in the region. Still, the people of the region are highly tolerant, as the majority lives in a rural economy, where interdependence of community members leads to strong ties, cooperation, and mutual survival.
Besides targeted attacks on Shias of the G-B, Pakistan government has also been making continuous efforts to ensure ethnic cleansing of Shia Muslims in AJK. According to a database compiled and maintained by media organisation LUBP, there have been around half-a-dozen organised attacks on the Shia community in AJK, leading to innumerable casualties. These attacks were precisely targeted at Shia areas and in a couple of incidents, on Shia processions and most of them were carried out collectively by large groups of Sunni Muslims.
Altering the Demography
The Federal government of Pakistan has also been working to alter the demography of AJK, since as early as 1971. In an article written in 1971, titled “Azad Kashmir: A Colony of Islamic Republic of Pakistan”, Convenor of United Kashmir Liberation Front, United Kingdom-based M. Bashir Asef presented details on the attempts made by Pakistan to colonise AJK. It highlighted that through institutional; and non- institutional moves, the Pakistani government was easily facilitating the settlement of non-Kashmiris in AJK since before.
Pakistani government prefers to award contracts of projects in AJK to Army officers, who marginalise the local work force and later settle in the region. The labourers are deprived of labour rights, as they are barred from making labour unions. The obvious reason behind facilitating settlement of Army personnel in AJK is to ensure a dominating position along the Line of Control (LoC) in case of confrontation with India.
At the time of partition of India and Pakistan in 1947, AJK was a region dominated by Hindus and Sikhs. According to reports, Kotli town in AJK was earlier dominated by Hindu and Sikh inhabitants. There were about 4,000 Hindus and thousands of Sikhs residing there. Subsequently, the Hindu and Sikh population was forced to flee to get shelter on the Indian side of the LoC.
But even international boundaries could not act as a barrier in Pakistan’s attempts of ethnic cleansing of the ‘United Jammu and Kashmir’ region. Pakistani terrorists, along with Pakistan-supported terrorists based in India, carried out one of the most sorrowful mass exodus of Kashmiri Pandits in the Kashmir valley of J&K. In 1989-1990, thousands of Kashmiri Muslims rose against the Indian state, instigated by Pakistan to create an Islamic state of Jammu and Kashmir; a valley homogenous in its Sunni Islamist character. The Hindu Pandits of Kashmir became the first target of the insurgency. They were viewed as living symbols of Kashmir being an integral part of India. In order to spread fear among the Pandit community and oust them from Kashmir, the militants started targeting prominent Kashmiri Pandits in 1989.
Pakistan’s cries over the Jammu and Kashmir issue is not for democracy or human rights, rather, it is entirely based on the over-broad desire of creating an Islamic state of Jammu and Kashmir, exclusively inhabited by its Sunni population.
HUMAN RIGHTS CONDITIONS
Restrictions on the Freedom of Religion or Belief
The Office of the United Nations High Commissioner for Human Rights (OHCHR) in its two reports released in 2018 and 2019 titled, ‘Reports on the Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018 and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan’ (OHCHR 2018 Report) and ‘Update of the Situation of Human-Rights in India administered Kashmir and Pakistan Administered Kashmir from May 2018 to April 2019’ (OHCHR 2019 Report), along with multiple Universal Periodic Reviews (UPRs) have highlighted the ongoing human rights crisis in AJK and G-B territories.
In the June 2018 report, OHCHR drew attention to the provision in AJK’s Interim Constitution, which in similarity with Pakistan’s Constitution, defines who may be considered to be a ‘Muslim’ and uses this definition to discriminate against the minority Ahmadiyya community. The amended Interim Constitution of 2018 has made no changes to this discriminatory provision and declared the Ahmadiyya to be non-Muslims.
Human rights defenders and non-profit organisations informed OHCHR that Pakistan’s blasphemy provisions continue to be in force in AJK and G-B. These provisions have been criticised by several United Nations bodies and Special Procedures mandate holders for violating a range of international human rights principles and emboldening instigation of violence against religious minorities.
Business, Human Rights and the Road to China
Being the gateway to China, G-B constitutes a major part of the CPEC. However, it has led to a sheer disappointment for the inhabitants of the region. Unlike other regions and provinces of Pakistan, G-B was not even once consulted on the CPEC. Similarly, no Special Economic Zones (SEZs) have been allocated to G-B that could lead to its development.
According to an International Crisis Group (ICG) report, the people of G-B are resentful because they feel CPEC projects were designed and implemented without their input and will be of little benefit to them. The report further said that it “could also affect G-B’s delicate Sunni-Shia demographic balance.” The ICG concluded, “the State’s response to local dissent and alienation has been an overbearing security presence, marked by Army checkpoints, intimidation and harassment of local residents and crackdowns on anti-CPEC protests.”
Talking about the possible environmental disaster caused by the CPEC project, Pakistan Businessmen and Intellectuals Forum President Mian Zahid Hussain said that with around 7,000 large trucks using the corridor daily, it is estimated to produce 36.5 million tons of carbon dioxide per annum and such ecological degradation would harm environment, agriculture, tourism, water system and general health in the G-B region.
The OHCHR, in its 2019 Report, observed that the fashion in which the CPEC projects are being implemented raises issues in relation to the enjoyment of rights enshrined in the International Covenant on Civil & Political Rights and the International Covenant on Economic, Social & Cultural Rights, to which Pakistan is a party.
Since AJK and G-B do not have any direct autonomy in governance and are directly controlled by the federal government, the local communities in both these areas do not have control over natural resources found in these mineral-abundant territories. Political leaders and activists from both the regions argue and emphasise that natural resources are exploited for the benefit of Pakistan while the people of AJK and G-B continue to remain largely impoverished.
Several communities in G-B have been raising concerns about the impact of CPEC on their lives. HRCP was informed that G-B authorities had forcibly evicted locals, while the Chief Secretary of G-B had allocated the same land to State authorities for the CPEC. The displaced people had claimed that they had not received compensation for relocation from the authorities.
Enforced/Involuntary Disappearances and Arbitrary Detentions
There are several credible media reports and information on enforced disappearances of people from AJK, including those who were held in secret detention and those whose fate and whereabouts continue to remain unknown. The people of AJK including journalists, activists and politicians have been subjected to enforced or involuntary disappearances. Some cases of alleged enforced disappearances have also been reported from areas close to the LoC that are under the administration of Pakistani armed forces.
The detention centers are constructed by the Frontier Works Organisation (FWO) – a subset of the Pakistan Army dedicated to infrastructure development. The organisation constructs multiple detention centres along the International Borders, where activists, politicians, and those not in tandem with the Army are kept for indefinite periods and tortured mercilessly.
According to different estimates, as many as 8,000 cases of missing persons have been reported since the start of the war on terror from different parts of Pakistan and its occupied territories. In AJK, numerous disappearances are also being reported, notably carried out by the state intelligence agencies, which arrest persons, and they disappear forever without a trace.
The United Kashmir People’s National Party (“UKPNP”) organised a number of protests throughout Pakistan against kidnappings and disappearances of nationalist politicians and activists in AJK and G-B. Their demand was to stop abductions and enforced disappearances from AJK and G-B.
Speaking at the 32nd Session of the UNHRC General Assembly, Sardar Shaukat Ali Kashmiri of UKPNP, urged upon UNHRC to put pressure on Pakistan to stop the victimisation of nationalist leaders of AJK and G-B, and put an end to enforced disappearances.
Right to life that is considered as the most primary and important human right has been severely violated and infringed upon by Pakistan and its armed forces. International Covenant on Civil and Political Rights (ICCPR) highlighted that enforced disappearances constitute unique and integrated series of acts that represented continuing violation of various rights recognised in the Covenant, including the right to life and the prohibition of torture and cruel/inhuman/degrading treatment or punishment. The Actions (in Aid of Civil Power) Regulation, 2011 gives broad and sweeping powers to Pakistani authorities to label any dissenting voice not conforming with the Pakistani regime, as a terrorist and detain them.
In April 2017, the Committee against Torture expressed concern at “very broad powers given to the Army to detain people suspected of involvement in terrorist activities without charge or judicial supervision in internment centres under the Actions (in Aid of Civil Power) Regulation, 2011 (Articles 2 and 15).” The Committee recommended that Pakistan should repeal or amend the Actions (in Aid of Civil Power) Regulation, 2011 to ensure that no one is held in secret or incommunicado detention anywhere in the territory of the state party to the Convention, as detaining individuals in such conditions constitutes per se a violation of the Convention.
The Human Rights Committee has also expressed apprehensions against these internment centres and the “allegedly high number of persons held in secret detention under the Actions (in Aid of Civil Power) Regulation, 2011.” On working of Pakistan’s Commission of Inquiry on Enforced Disappearances, the Committee expressed concerns about “the insufficient power and resources allocated to the Commission; the non-compliance with the Commission’s orders by the relevant authorities; and the high number of cases brought before the Commission that remain unresolved, with no criminal proceedings brought against perpetrators.”
In May 2018, the Government of Pakistan informed the Supreme Court of Pakistan that 1,330 people were being held in various internment camps and that it required more time to furnish the Court with details of the legal proceedings against them.
OHCHR has been informed that there are likely several other cases of enforced or involuntary disappearances in AJK but they do not get reported like in the rest of Pakistan due to the lack of independent media or independent human rights groups working in the region.
The United Nations Working Group on Enforced or Involuntary Disappearances has received at least one case of a Pakistani national disappearing from AJK and a permanent resident of G-B disappearing from Pakistan.
Impact of Counterterrorism on Human Rights in G-B and AJK
The Anti-Terrorism Act 1997 (“ATA”) provides broad and sweeping powers to Pakistani authorities to use the law for targeting political activists, human rights defenders, and journalists in G-B and AJK. As noted in the June 2018 OHCHR report, the ATA is a Pakistani law misused by G-B authorities especially after introduction of Pakistan’s National Action Plan for countering terrorism and extremism in December 2014. The report also indicated concerns raised by the Human Rights Committee and the Committee against Torture.
The Pakistani government used the ATA to arrest prominent political and liberal activist Baba Jan of G-B and 11 other protesters for their environmental activism in September 2011. He is serving a life imprisonment sentence and is now left with limited legal recourse available to challenge false charges against him. Same is the case with other detainees as well. Since then, inhabitants of G-B have held several protests demanding immediate release of Baba Jan and other activists. An international petition for demanding Baba Jan’s release has been signed by eminent scholars and activists, including the likes of Noam Chomsky, Tariq Ali, and David Graeber, besides others.
Besides the ATA, Pakistan government is also using the cybercrimes law to curb the anti-CPEC dissent in G-B. The OHCHR highlighted that anyone who protests or criticises CPEC is termed as “anti-national and anti-people”. Moreover, Pakistani authorities often accuse critics of being Indian spies to delegitimise their concerns and protests.
On 17th March 2018, JKLF leader Naeem Butt was shot dead by the police at a rally organised by JKLF in Muzaffarabad. People across AJK have been organising several protests to demand punishment and arrest of those responsible for killing Naeem Butt and push for constitution of a Judicial Commission to probe the killing.
India, for long, has resorted to and preferred the method of short-term house arrest of separatists and extremists, posing a threat to law & order situations and national security of the country. Without resorting to involuntary disappearing of extremists or arresting them, the Indian government tries to confine them to their homes to ensure tranquility in the region. Such house arrests are short lived and can vary from a couple of hours to a couple of days.
Restrictions on the Rights to Freedom of Expression and Association
The AJK Interim Constitution (13th Amendment) Act, 2018 entitles the Pakistani government to authoritatively suppress dissenting voices. It states, “No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the state’s accession to Pakistan.”
The OHCHR, in its June 2018 Report, highlighted that the Interim Constitution of AJK places several restrictions on anyone criticising the region’s accession to Pakistan, in contravention of Pakistan’s commitments to uphold the rights to freedom of expression & opinion, assembly and association. It recommended Pakistani government to bring this law (along with associated laws) into compliance with international human rights standards. However, the amended Interim Constitution of 2018 has retained the clauses that directly contravene international human rights law.
Pakistan puts blanket restrictions on individuals who do not conform to the government’s views and wish to contest elections. AJK’s electoral law has not been amended, and it continues to disqualify anyone running for elected office who does not sign a declaration that says, “I have consented to the above nomination and that I am not subject to any disqualification for being, or being elected as a member of the Legislative Assembly and in particular I solemnly declare that I believe in the Ideology of Pakistan, the Ideology of State’s Accession to Pakistan and the integrity and sovereignty of Pakistan.”
Post-2018, the G-B Empowerment and Self-Governance Order 2009 (“2009 Order”) imposes similar restrictions on freedom of expression and association of people under its jurisdiction. Article 9(2), under the fundamental rights section, states, “No person or political party in the area comprising G-B shall propagate against or take part in activities prejudicial or detrimental to the ideology of Pakistan.”
Similar to AJK, authorities in G-B also failed to amend provisions in the region’s governance rules that restrict the rights to freedom of expression & opinion, assembly, and association. The Gilgit-Baltistan Governance Reforms, 2019 (“Reforms Order 2019”), which is identical to Gilgit-Baltistan Order 2018 (“Order 2018”) and states verbatim as in Article 9(2), under the fundamental rights section.
Pakistan has been facing strong opposition at home against the G-B Order 2018. The Human Rights Commission of Pakistan (HRCP) criticised the G-B Order 2018 for failing to protect the fundamental freedoms of the people of G-B. It said, “In claiming to grant the people of G-B their fundamental freedoms, the G-B Order has clipped their rights to freedom of association and expression. It has denied any G-B resident the right to become a chief judge of the Supreme Appellate Court or to have any say in internal security. Above all, it has disregarded people’s needs despite continual public pressure in G-B to address their problems fairly and in accordance with local aspirations.”
Members of nationalist and pro-independence political parties claim that they regularly face threats, intimidation, and even arrests by local authorities or intelligence agencies, for their political activities. They said that threats are also directed at their family members including children. Such intense pressure has reportedly forced many to either flee Pakistan, and continue their political activities in exile, or stop them completely.
In November 2018, 19 activists of the JKLF were charged with “treason” for organising a rally in Kotli area of AJK. Thirty members of the Jammu Kashmir National Students Federation (“JKNSF”) were arbitrarily detained by Pakistani law enforcement agencies while demanding independence from Pakistan at the Rawalpindi Press Club in Rawalpindi on 15th March 2019. They were later released on 20th March 2019 after court intervention. The JKNSF alleged that authorities did not release their former president, Sardar Talah, who was also detained at the same venue on 15th March 2019.
Pakistan is practising an absolute form of censorship in the AJK territory. According to a report of the United States State Department, media managers and media owners in the region still have to obtain permission to publish, from the Kashmir Council and the Ministry of Kashmir Affairs.
Human rights groups report that publishers of books or periodicals are also required to make a declaration of loyalty to accession to Pakistan. Several books supporting Kashmiri independence were also reportedly banned by a government order in 2016.
Besides practicing direct censorship, Pakistan is also implementing indirect ways to censor news content. To avoid harassment from armed forces and not losing government advertisements, the media organisations resort to censor dissenting news and non-conformist views that go against the Pakistani government. A number of journalists in AJK and G-B confess that media houses continue to practice self-censorship as a means to obtain government advertisements, the main source of revenue. Journalists claim local administrators use the advertising revenue as a “carrot and stick” policy with media owners in order to get favourable news published, reduce coverage of their political opponents, and censor any criticism of Pakistan by political groups or civil society members.
Journalists in AJK are continuously threatened and harassed in the course of carrying out their professional duties. According to the Committee to Protect Journalists (CPJ), an anti-terrorism court in G-B sentenced journalist Shabbir Siham in absentia to 22 years in prison and fined him PKR 500,000 (US$4,300) on charges of defamation, criminal intimidation, committing acts of terrorism and absconding from court proceedings. Siham was accused of “fabrication” and extorting a regional minister in violation of Pakistan’s Anti-Terrorism Act after he wrote an article for the ‘Daily Times’ newspaper alleging G-B legislators of having involvements in human trafficking and prostitution. Shabbir Siham told CPJ that he did not appear before the court due to security concerns.
In another incident, authorities in G-B arrested journalist Daulat Jan Mathal in 2016 on anti-terrorism charges because the publications he edited supported national autonomy for G-B. He was then charged with the allegation of “damaging the solidarity and integrity of Pakistan” by publishing material supporting the Balawaristan National Front, a local nationalist party.
In 2018, G-B authorities arrested journalist Muhammad Qasim Qasimi after he engaged in verbal argument with a local police officer. The newspaper that he worked for reported that he may have been arrested to prevent the publication of his story on a corruption scandal in the local government. According to CPJ, Qasimi has been charged with “criminal intimidation, intentional insult to provoke breach of peace, defamation, threat of injury to public servant and obstructing a public servant in discharge of public functions.”
According to a Muzaffarabad-based senior journalist, there were no newspapers in AJK until the late 1990s. Currently, 32 local newspapers operate in AJK. All the newspapers are published in the Urdu Language, and not in the majority’s language – Kashmiri. All the newspapers in the state have to follow a different procedure of title registration than the mainland Pakistani newspapers. The registration requests/application forms have to be necessarily filed before the local Deputy Commissioner, but final approval is given by the Kashmir Council based in Islamabad and not by the Ministry of Information and Broadcasting. Through this process, Pakistan practices a direct form of press censorship in AJK.
A growing body of findings and resolutions holds that there have been intentional disruptions to the internet, violating international law. The UN Human Rights Council and the UN General Assembly have passed, by consensus, multiple resolutions that unambiguously condemn internet shutdowns and similar restrictions on freedom of expression online. For example, the UN Human Rights Council in Resolution A/HRC/RES/32/13: “Condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law and calls on all States to refrain from and cease such measures.”
Pakistan shuts down the internet in AJK for petty issues. At times, it shuts down the internet based on the developments taking place in India. In recent years, it shut down the internet in the region as soon as India revoked Article 370 of the Indian Constitution.
LAWS AND LEGISLATION LEADING TO HUMAN RIGHTS ABUSES
The AJK and G-B are not mentioned in the Article 1 of the Pakistani constitution, which defines and mentions Pakistani territories. It implies that neither AJK nor G-B have been mentioned as Pakistani territories under its constitution. However, Article 1(2)(d) states that Pakistan’s territories include “such States and territories as are or may be included in Pakistan whether by accession or otherwise.”
The Pakistani government, under the Karachi Agreement with the AJK government, divided the natural resources-rich and fertile G-B from AJK and renamed it as Northern Areas. Since then, Pakistan has been directly ruling G-B through provisional orders/ordinances, where every new order replaces the previous one. Unlike AJK, it does not have an interim or permanent constitution.
The State Subject Rules of 1927 – the land ownership act entitling land rights to the locals – was annulled by the Pakistani government in 1974, which opened the door for the influx, settlement and subsequently dominance of the Pakistani community in G-B.
Until 2009, no legislative body existed in G-B. The Pakistan government promulgated the G-B Order 2009 to entitle the inhabitants of the territory a certain amount of control over governance. G-B Assembly and G-B Council were also set up under the provisions of the Order. However, in 2018, the Pakistan government introduced the G-B Order 2018 to replace the Order 2009, which was not received warmly by the local populace. It gave sweeping and broad powers to the Federal government to directly control the territory. Along with G-B Assembly, the Prime Minister of Pakistan was empowered with direct legislative powers to make laws on G-B as well as directly imposing the laws from Pakistan. The powers of the G-B Council were thus taken away and entrusted to the Pakistani Prime Minister, limiting the Council’s role to act as an advisory body. The Order 2018 was met by intense protests in G-B including by the political parties, pro-independence groups, and civil society organisations. The activists demanded full democratic rights, representation, and revocation of the Order 2018.
The Order 2018 has infringed upon the financial autonomy of G-B. In order to establish control over the economy of G-B, the federal government also took over the accounts, audits, and taxation departments of the region.
On 20th June 2018, the Supreme Appellate Court of G-B suspended the Order 2018. However, it was restored by the Supreme Court of Pakistan on 17th January 2019. Besides restoring the Order 2018, the Supreme Court of Pakistan warned the federal government to not change the status quo of G-B, until and unless a referendum was conducted and extended its own powers over the region. It ordered the federal government to come up with a new policy – G-B Governance Reforms, 2019.
Pakistan has been changing goalposts in introducing and implementing the 2019 Reforms in G-B. Despite the Pakistani Supreme Court’s mandate to the federal government to come up with G-B Governance Reforms 2019, the government has failed to do so. Under pressure from the Supreme Court judgment, Pakistan government, through its Ministry of Kashmir Affairs and G-B, came up with the G-B Reforms Order 2019, which was a combination of Order 2009 and Order 2018 and has induced most of the provision from the Order 2018. Observers say the repeated changes and shifting of goalposts might be a delaying tactic under the garb of indecisiveness on whether to table the Bill in the G-B legislature or the Pakistani parliament.
Currently, the Order 2018 is in force in G-B where the Pakistani Prime Minister, who is a part of the national executive, enjoys exclusive authority to legislate on 68 subjects, pertaining to matters of executive, legislature, and judiciary in G-B. The people of G-B have not yet been entitled to all the fundamental rights of the Pakistani Constitution and the Principles of Policy (similar to Directive Principles of State Policy of the Indian constitution) do not apply to G-B. Besides, G-B has not yet been entitled to any representation in constitutional bodies of Pakistan.
As far as AJK is concerned, the Article 257 of Pakistani constitution authorises the people of the region to take a decision on its accession/merger within the Pakistani territory. Article 257 states: “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 AJK Interim Constitution Act 1974 provided for an interim constitution of AJK for long. After passage of the 13th Amendment Act on 2nd June 2018, the Legislative Assembly of AJK declared it as a full constitution and endorsed sovereignty of AJK.
The amendment limited the powers of Kashmir Council and reduced its role to an advisory one. The amendment made AJK parliament began to form laws without the knowledge of Pakistan government and bypassing the Federal Cabinet. The AJK Legislative Assembly also acquired powers to approve or disapprove emergency in times of war or conflict.
Yes the AJK Constitution prohibits the expression of any idea that is not in conformation with those of Pakistan. Section 4(7)(3) of the Act states: “No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan.”
Lawfare by Pakistan and India in the Kashmir Valley
Pakistan’s ATA authorises the security forces in AJK and G-B to infringe the freedom of expression in the name of dealing with terrorism. Sections 8 and 9 of the Act bring activities like ‘threatening’, ‘abusing’ and ‘insulting’ under the category of terrorism. The offenders are charged and treated like terrorists. As explained earlier, in a number of cases, accused persons have been forcibly disappeared. It is noteworthy that according to Articles 41(2) and 91(3) of the Constitution of the Islamic Republic of Pakistan, 1973, as well as the Articles 5(4)(a) and 13(2) of the AJK Interim Constitution Act, 1974, the respective Presidents and Prime Ministers have to be Muslims.
On the Indian side, Articles 35A and 370 of the Constitution provided a number of powers to the J&K state legislature. The Constitution (Application to J&K) Order, 1950 was introduced through Presidential Order, contemporaneously with the Indian Constitution. Besides, the Union was authorised to have powers on 38 subjects from the Union List. Under such an arrangement (as per Article 370) 235 Articles of the Indian Constitution were inapplicable to J&K. The 1950 Order was superseded by the Presidential Order of 1954.
However, Article 370 was prohibiting the state to grow and develop full-fledged, at par with other states of India, besides depriving the citizens of a number of fundamental rights. For example, AJK, G-B and entire Pakistan have criminalised homosexuality, infringing the basic human rights of its citizens. Pakistan and India, being commonly ruled by the Britishers as undivided India, had the draconian laws of penalising homosexuality. The Indian Supreme Court struck down the colonial law and decriminalised homosexuality. However, with J&K having a separate constitution, the law was not applicable there. When Article 370 was abrogated, the LGBTQ community of Kashmir welcomed the step.
The Constitution of India, in its very Preamble, declares India to be a ‘secular’ state. Further, Articles 25 to 28 of the Constitution provide numerous freedoms to all individuals of the country and lays the extremely basic foundation of equality. Right to Freedom of Religion is a Fundamental Right in India. In addition, Article 51(A)(e) of the Constitution, under Directive Principles of State Policy, asks the state, “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”
Article 19 provides for a number of freedoms related to speech, expression or association and protects them. Neither this Article nor any other Article or provision of the Indian Constitution compels its citizens to conform with the ideas of the Indian state or with those of the majority. The Freedom of Speech and Expression is also a fundamental right entitled by the Indian Constitution to all Indians.
As far as election and voting rights of citizens are concerned, the Citizenship Act, 1955, entitles the right of voting to every Indian citizen above the age of 18 years. Besides, the Representation of People’s Act provides equal opportunity to contest elections to every Indian citizen, regardless of their class, caste and religious identities. It also reserves seats for the backward communities in elections. With Article 370 prevailing, this provision was not applicable in J&K, depriving backward classes of their rights in the region.
The comparative assessment infers that J&K seems to perform relatively better in terms of human development and growth. At the economic and budgetary fronts, J&K is multiple times ahead of AJK and G-B. In terms of health and education – the two foundational pillars of the HDI – J&K has allocated a budget that is equal to the worth of multiples of the budget of AJK & G-B combined. Besides, the infrastructural set-up of J&K in these two areas has also been noteworthy. This research suggests that India is comparatively performing better in terms of objectives as well as the infrastructure in health and education sectors, besides other components of the HDI in J&K.
States and Constitutional set-ups have major roles to play in ensuring human rights of its citizens. Numerous cases of human rights violation on religious and sectarian grounds suggest that there has been an institutional sanction and validity of differentiation, discrimination and marginalisation by Pakistani as well as AJK Constitutions and local laws. Differentiating others from the dominant Pakistani Sunni sect has been provided for and validated by Pakistani Constitution.
On the other hand, India has, in most of the cases, ensured equal fundamental rights and has prevented the forms of discrimination across its diversely religious and multi-ethnic demography.