Constitutional anomalies in Pakistan 1947 to 2009

By Sheikh Asad Rahman

BACKGROUND

Pakistan came into being in 1947 August under the British plan for partition of the South Asian sub-continent. This plan envisaged all Muslim majority areas and regions to form the newly conceptualized state of Pakistan. In reality and practical terms this was impossible to achieve as many regions, like Junagarh, Hyderabad (Deccan), were surrounded by Hindu majority areas. India soon after forced annexation of these two areas while it also occupied Kashmir which was contiguous to Pakistan geographically but was annexed through machinations of Lord Mountbatten and Lord Radcliffe (boundary commission) by handing over Gurdaspur (Muslim majority) geographical access to Kashmir from India. Kashmir is the home state of the then PM of India Pandit Jawaharlal Nehru. East Pakistan was separated by 1000 miles of Indian Territory.

Pakistan was envisaged as a secular state by its founders. Religious parties (JI, JUI, etc) actually opposed the creation of Pakistan. After its independence it is these same religious parties that forced the weak federal governments to change the name to include Islam thus becoming the Islamic Republic of Pakistan and developed the two nation theory based on religious concepts of making Pakistan an Islamic state without an in depth understanding of the Islamic welfare state paradigms.

In the West, Pakistan inherited arbitrary borders drawn by the British in the South-West with the Persian Empire, the Goldsmith line, and in the West with Afghanistan, called the Durrand line. This arbitrary border split tribes, families in both Balochistan and NWFP. At the same time the border is not defined in many places being mountainous and cross border traffic continued unchecked. It is difficult to stop family unions and visits which is also their human and civil right to be able to visit each other unhindered. These long borders from the Arabian Sea to China and the districts along it have become the haven for drug, weapons smugglers and militant group’s entry into Pakistan since independence.

For reasons unknown after independence certain areas were not brought at par with the other regions of the country in terms of Constitutional governance. Federally Administrated Tribal Areas (FATA), Provincially Administrated Tribal Areas in Balochistan, Excluded areas of Punjab (Mountainous areas of D.G. Khan, Taunsa, Chashma), Federally Administrated Northern Areas and AJK (FANA) have all been excluded from Constitutional cover since 1947. All these areas have been ruled not governed under Colonial rules, a legacy of the British. FATA, Excluded areas and PATA have been ruled through the Frontier Crimes Regulations i.e. Political Agents or one man administrations representing the Federal government. FANA has been ruled by the Minister and secretary of the Ministry of FANA and AJK. The people of FANA have no national status leave alone Constitutional cover. The judiciary there is contract judges. Only now (2009) under the Gilgit/Baltistan package has this area been recognized as a part of Pakistan with a powerless assembly.

The British and the US (later) used this developed militant mindset to undermine Czarist Russia and Soviet interests in Afghanistan and defend the arbitrarily demarcated border while Pakistan has adhered to the same policy to date. This in effect created small states within the country that were ripe for exploitation by foreign powers and disgruntled bigoted religious groupings. The jihad against the Soviets in the 80’s delivered military training, huge amounts of weapons sponsored by the US and funds into the hands of these groups. Deobandi (sectarian militant groupings from south Punjab) and Wahabi (Saudi) influences increased exponentially thus giving the militants more funding and poverty stricken illiterate recruits from the Deobandi, Barelvi run madressas of South Punjab. It should be remembered that Jaish-i-Mohammad and Lashkar-i-Jhangvi have their headquarters in South Punjab. (Please read front page story in Dawn of 27^th May 2009).

So where does the root cause lie? There are two basic causes, state sponsored militancy and poverty.

Pakistan has fought three wars with India. One was fought over East Pakistan which we will discuss only as a corollary and two over Kashmir in 1948 and then in 1965. In 1948 when India occupied Kashmir, Pakistan hardly had an army to fight a war nor were the ammunitions and weapons transferred to Pakistan (part of the partition plan of sharing military assets) from the Ferozepur Cantonment. This compelled Pakistan to use the armed tribal lashkars from FATA and NWFP to try to dislodge the Indian occupation forces. The embryonic Pakistan army was only able to occupy what is known as Azad Jammu and Kashmir. The lashkars were withdrawn under a UN brokered ceasefire. This is the first time that the state had used these tribal lashkars for its strategic sovereignty ends. In the 1965 war the same lashkars were again used as a fifth column, infiltrated into Indian occupied Kashmir, when Pakistan sought to cut off Kashmir from India by striking in the Chamb/Jurian sector to capture the town of Akhnur situated on the main link road between India and Jammu. India attacked in retaliation across the international border in the Punjab threatening Lahore. After 17 days of fighting another ceasefire was negotiated in Tashkent brokered by the USSR. The third war was fought over East Pakistan/Bangladesh in 1971.

This war was a direct result of the domination of a minority population (all the present 4 provinces were amalgamated into a one unit regime to create parity with East Pakistan, but the combined population was still in minority compared to EP) and the economic exploitation of East Pakistan where no benefits of export of Jute and Rice ever went to development in EP but went to West Pakistan. The 1970 elections were squarely won by the majority population of EP and its representative political party the Awami League. Power was not handed over to the majority party. An insurgency ensued which was helped by India when they invaded East Pakistan and liberated Bangladesh. A similar situation continues in Balochistan since 1948 where no socio-economic or political development has been allowed. The gas fields of Bugti area have been exploited since 1954 with supplies going to every region of Pakistan except Balochistan till 1985, when 5 districts were supplied gas. The Federal government owes the provincial government Rs 800 billion in gas royalty alone. This denial of any benefit from gas or other mineral exploitation in Balochistan has led to 5 civil wars. The first was in 1948, second in 1958, third 1962 to 1968, forth 1973 to 1977 and now the fifth ongoing since 2005.

The same lashkars were used by the US and Pakistani state to fight and win the war against the USSR from 1979 to 1987 and left to advance into Afghanistan in what the Pakistani military regime wanted as strategic depth against India. When the original Afghan Mujahideen got out of their mentors hands, the Taliban forces were sponsored by the state through the ISI. The chickens have now come home to roost after 9/11 and their defeat in Afghanistan by the same US forces which helped create them.

This continued denial of benefits, constitutional rights, basic fundamental rights, human and development rights to people of the western border regions extending into the Northern Areas has fostered disenfranchisement and marginalization of these societies. The situation denied these areas of any socio-economic, cultural or political development and empowerment. The people have been impoverished, disenfranchised and marginalized due to this inexplicable policy of the state since its inception. Therefore an independent and militant mindset developed in the inhabitants of these areas who are also allowed to carry weapons.

Northern Areas

The people of Northern Areas comprising of Astor, Baltistan/Skardu, Diamar, Gilgit Hunza/Nagar, Khizer, and Ghanchay districts are not considered citizens of any state although administered by Pakistan. In 1947-8 the people of these areas revolted against the Dogara Maharajas of Kashmir and declared accession to Pakistan. No instrument of accession was signed between the State and the people of these areas due the conflict over Kashmir with India. The argument given by the State is that these areas were a part of Kashmir and until the annexation of Kashmir by India is not resolved, Pakistan would be weakening its negotiation position if it gives Constitutional cover to NA.

This position is rejected outright by the people of NA and demand that they be given the status of a province under the Pakistan Constitution with equal citizenship, development, social, civil, fundamental and human rights as with the rest of the nations living within the territories of Pakistan. When the whole population is denied their Constitutional, socio-economic, cultural and human rights, the worst sufferers are women and children.