The 2019 decision of 7 Judges of the Pakistan Supreme Court in Civil Aviation Authority v Supreme Appellate Court Gilgit-Baltistan purportedly at the “ancient and constitutional problem involving the reputation, authority and powers of Gilgit-Baltistan” is yet any other instance of the way Pakistan chooses to distort the Kashmir narrative for political expediency. The judgment penned by using the Chief Justice of Pakistan charges from my e-book, Unravelling the Kashmir Knot, and yet fails to counter the criminal standards set out within the e-book that would have negated every locating made with the aid of the Court in its judgment.
The Court has held that the starting place of the Kashmir Issue lay in the “accession of Kashmir to India by way of the Hindu ruler of a Muslim majority nation, which become contrary to the expectancies of the population and to the premise professed to be desired via the British for accession by the Princely States.” The Court indexed the repeated declarations by New Delhi of its commitment to a loose and impartial plebiscite to determine whether the princely country of J&K is to accede to India or Pakistan. The Court went on to formulate the main problem as follows: “Would granting essential rights and a standing, position, and reputation to the humans of GB within the constitutional scheme of Pakistan prejudice Pakistan’s motive for the decision of the Kashmir dispute via such appropriate way as can be appropriate to Pakistan (which can, as an instance, be a United Nations-sanctioned and supervised plebiscite)?”. The Court candidly mentioned that whilst “Azad J&K” and Gilgit-Baltistan are considered to be a part of the disputed J&K, “it has usually remained completely underneath Pakistan’s administrative manage.” The Court reiterated its 1999 choice in Al-Jehad Trust v Federation of Pakistan for the proposition that the humans of Gilgit-Baltistan (then referred to as Northern Areas) were “residents of Pakistan for all intents and functions”. The Court took the view that it has “not hesitated in the beyond to present criminal recognition to the aspirations of people who have unhesitatingly, enthusiastically (and, if we might also put it like that, joyously) solid their lot with Pakistan proper from the start” and that it would “now not hesitate now to take the problem further” to provide “judicial imprimatur” and “permanence” to the Order annexed to the judgment, that is to the effect that Pakistan “intends to offer Gilgit-Baltistan the popularity of a provisional Province, situation to the choice of the Plebiscite to be carried out under the UN Resolutions” and “to provide for greater empowerment to be able to bring Gilgit-Baltistan at par with other provinces and to initiate vital legislative, govt and judicial reforms for the aforesaid functions”. Placed, Pakistan has in effect annexed Gilgit-Baltistan as its province.
Had the Court objectively studied the primary four chapters of the e-book and the authoritative resources cited in the chapters, it would have located that the starting place of the Kashmir Issue lay inside the need of the British to keep the Northern Areas of J&K (and N.W.F.P.) free from Indian manage so that the Islamic crescent from Turkey to China alongside the then U.S.S.R. Remained intact. After all, such an Islamic crescent formed the ideological boundary for the British to include the Russian effect on journeying closer to the oil-wealthy Middle East. The very intent for the British to partition the Indian sub-continent changed into creating a sovereign nation friendly to the British – a “Pakistan” with the strategic N.W.F.P.- for its ongoing Great Game with Soviet Russia. The British assumed that the Muslim majority princely nation of J&K might accede to Pakistan, which would hold to put the Gilgit-Baltistan area at their disposal. And so while the sovereign ruler of J&K acceded to India on 26 October 1947, it becomes the British Gilgit Scouts that carved out the Gilgit-Baltistan place of J&K on the night of 31 October 1947, hoisted the Pakistani flag on what had by using then come to be Indian territory and asked Pakistan to take it over.
As regards the view taken using the Court that the accession of J&K to India turned into “contrary to the expectancies of the populace,” there may be virtually no proof to confirm that the populace of J&K – spread over Jammu (including the then jagirs of Poonch and Chennai), Kashmir, Ladakh, Gilgit-Baltistan, and the frontier villages – would have opted for Pakistan. And as some distance as the premise for accession professed by way of the British is concerned, the British regulation that created cutting-edge day India and Pakistan, and which turned into usual via them (particularly, the Indian Independence Act of 1947 and the changed Government of India Act of 1935), supplied that the sovereign ruler of a princely kingdom might have the special authority to offer accession to India or Pakistan or to stay unbiased, no matter the nation secular complexion of his country. This, in truth, turned into additionally the steady stand of Pakistan earlier than the UN as contemplated in the UNSC debates at the Junagadh Question and the Hyderabad Question. The Court is consequently patently wrong in maintaining that the accession of J&K to India was opposite to the basis of accession professed to utilize the British.
Further, had the Court ventured to the 5th bankruptcy of the e-book, it might have observed that New Delhi lacked competence below the stated law to decide to a plebiscite to determine the accession of J&K. Under such regulation, the desires of the people were alien to the query of the accession of a princely state. It is well settled that an executive can’t dress with authority by making guarantees inconsistent with the very constitution that gave it delivery. And because the equal law created Pakistan, it might be truthful to mention that the very regulation that created Pakistan made J&K part of India. Should Pakistan disown such regulation, “Pakistan” itself would no longer exist!
Regarding the UN resolutions for plebiscite in J&K, a perusal of the 6th and 7th bankruptcy of the ebook could have led the Court to the view that those two have been without jurisdiction and, in truth, opposite to the UN Charter.
It is Pakistan’s own case that the territory of J&K isn’t a part of Pakistan, and neither does its charter claim it to be so. However, in mild of the accession of J&K to India in terms of the law that created contemporary-day India and Pakistan, J&K is asserted by the Indian constitution to be a part of India. The residents of J&K are consequently legally and constitutionally Indian. The query does no longer get up of Pakistan, giving the Gilgit-Baltistan vicinity of J&K the fame of a Pakistani province or treating its citizens as Pakistani citizens. Surely the Court knew that it changed into being within your means with the truth while it baldly claimed that Indian citizens living inside the territory of J&K forcibly occupied by Pakistan had aspirations to “solid their lot with Pakistan right from the start” and that this has been achieved via them “unhesitatingly, enthusiastically” or even “joyously.” Rather, there is relative clarity in global regulation as also inside the ICJ’s pronouncements in Namibia (1971) and Nicaragua (1984) that the very presence of Pakistan in Gilgit-Baltistan and “Azad J&K” quantities to aggression. It is indeed an unhappy reflection on any constitutional Court while it seeks to legalize the result of aggression.