In the long list of quid pro quos between the politicians of Azad Kashmir (governments) and the politicians of Pakistan (governments) it is the common man and woman in the three administrations of the State at Srinagar, Muzaffarabad and Gilgit who have suffered in the last 74 years. Above all it is the people’s right of self-determination that has been badly bruised. Politicians in Azad Kashmir have not turned a single stone to unearth the UN template on Kashmir and render a constitutional obedience to the cause of self-determination.
All governments have conveniently stayed away from setting up an institution to address the broad spread of “Plebiscite” as provided in the Constitutions (Acts) of 1970 and 1974. In fact all Governments since April 1999 judgement of the High Court on a writ petition filed by London based NGO JKCHR continue in the contempt of court and have wronged the cause of Kashmir.
A convenient get away argument has been that government of Pakistan under Karachi Agreement of April 1949 does not allow them a freedom on the subject. It is untrue. Whenever the members in the government of Azad Kashmir want a thing to happen, they find an exit ramp. Chief Secretary as a tradition is the present day Lord Mountbatten in Azad Kashmir. Under the constitution it should not have been so. Unfortunately these politicians do not want to suffer the pains of indulging into understanding the jurisprudence of UNCIP Resolutions, jurisprudence of the shared duties between government of Azad Kashmir and government of Pakistan and the common principle of ‘reasonableness’.
Therefore they have to keep the Chief Secretary and other loaned officers by Pakistan very happy and in good humour. They do not need to do that at the cost of their cause. It was on this count that Azad Kashmir cabinet created a special category of “Executive Allowances” for the three loaned officers over and above the huge pile of salaries and other routine perks. As a quid pro quo the outgoing Chief Secretary did not raise any eye brows on the cabinet decision to give a new car to all the ex-Presidents and ex-Prime Ministers each. And there are so many of them. A monthly cost of 400litres of fuel has also been approved for life. Azad Kashmir is a small territory and it is run like the kingdom of Brunei.
Government of Azad Kashmir has accepted all loaned officers in the past, to the extent that they do not disturb their realm of convenience. There is an uproar that the new chief secretary has been appointed to influence the AJK elections in favour of the ruling party in Pakistan. Chief Secretary has been appointed under clause viii of Karachi Agreement. This appointment has failed to keep a proportionality in the discharge of many other main responsibilities listed in the agreement. More so, the appointment of a chief secretary requires that other attendant caveats are duly satisfied. This column will examine clause viii of the Karachi Agreement.
The State of Jammu and Kashmir is fractured into three administrations on both sides of cease fire line. Families are divided and people distributed. They live under the influence of five constitutions and five governments. It is settled that “…pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir.” (773rd Meeting of UN Security Council held on 20.2.1957).
Therefore the Indian action of 5 August 2019 is unlawful. India cannot confer rights on itself and take away all rights of the people of Kashmir. Indians themselves needed an “entry permit” to visit Kashmir until 31 March 1959. All actions taken after 5 August 2019 have no merit. The people of Jammu and Kashmir have a jurisprudence of their case and need to play by the rules of UN template and focus on the right of self-determination of all people living on both sides of the cease fire line.
Self-determination is not a Muslim cause and shrinking it into a religious case – means that we are playing in the hands of RSS, to scare the world (and non-Muslims in Kashmir) of a Muslim take over. It is a case of Muslims, Sikhs, Hindus, Christians, Jews, Buddhists, other faiths and non-faiths. UN template, Hurriyat Constitution, AJK Constitution and Article 257 of the constitution of Pakistan all envisage a UN supervised vote for self-determination. Pluralism has to be visible. It does not hurt the character or the consequence of a Muslim majority.
The constitutional arrangement in the exercise of authority between the Government of Azad Kashmir and the Government of Pakistan stems from their duties under UNCIP Resolutions and Karachi Agreement of April 1949. The merits of this arrangement have never been questioned or tested. However, the differences between the Provisional Declaration of the Government of Azad Kashmir dated 24 October 1947 and this shared exercise of powers under UNCIP Resolutions and under the Karachi Agreement have never been reconciled.
If the two Governments had discharged their shared duties under UNCIP Resolutions and under Karachi Agreement of 1949, UN Administrator for Plebiscite in Jammu and Kashmir would have succeeded to hold a Plebiscite by 01 November 1950, as planned by him. A genuine engagement between the two governments would have helped United States of America to take the Kashmir issue to International Court of Justice in August 1951.
There are many reasons that account for the Plebiscite not taking place before 01 November 1950. One of these reasons has been the failure of the government of Azad Kashmir and government of Pakistan to play by the rules and instead to enter into quid pro quos. Government of Azad Kashmir avoided to establish an institute as provided in the constitution to promote the cause of “Plebiscite”. It has also avoided to engage government of Pakistan and ask the latter about any progress made on her assumed duties under UNCIP Resolutions.
So much so, the Azad Kashmir politics has been taken over by the political parties of Pakistan. The elected candidates in the Assembly, the Prime Minister and the President are a choice of the political parties of Pakistan. The influence and input of many other disciplines cannot be ruled out. The periodic right of people to elect the representatives has shifted to non-State political parties. Government of Azad Kashmir does occasionally flag its dissent and it ends up in a softly, softly agreed quid pro quo. It has wronged the Kashmir case.
On an enquiry, government of Azad Kashmir puts all blame on the Karachi Agreement of April 1949 signed by three parties. It may be so. It is also true that Government of Azad Kashmir has never questioned the progress made on the issues undertaken by the Government of Pakistan.
Azad Kashmir is nearing the holding of elections and the manner in which Pakistani political parties have been interviewing Kashmir candidates is undemocratic and disappointing. Government of Pakistan has appointed a new Chief Secretary for Azad Kashmir. The notification of 25 May 2021 has been issued under clause viii of Karachi Agreement.
It falls on the shoulders of Azad Kashmir Government to point out to the Government of Pakistan that the purpose of Karachi Agreement is not to appoint Pakistani nationals in Azad Kashmir but the main purpose is to carry out other important duties to advance the Kashmir case. One of them is to work around a UN supervised Plebiscite in Kashmir. The notification of appointing a new Chief Secretary in Azad Kashmir under clause viii of the Karachi Agreement is to loan an officer.
The current appointment of chief Secretary under clause viii is irregular. It is not in accordance with the attendant requirements listed in the clause viii. The immediate holding requirement for this appointment is the presence of a Chief Plebiscite Advisor in the Government of Azad Kashmir. Office of a Plebiscite Advisor has remained vacant for the last 51 years and all these appointments in the past have continued to remain irregular.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.
