On 15 January 1948 India surrendered its contested entry into a part of the Kashmir State for an UN-supervised referendum. But, to the shock of every Kashmiri and people elsewhere as well as in contravention of its obligations to the United Nation, India on 5 August 2019 re-occupied part of Kashmir, placing Kashmiri people under a siege of nearly 900000 Indian soldiers. A comparison is worth consideration; unlike an occupation force of almost 900,000 in Kashmir, the former Soviet Union, during its almost a decade-long occupation of Afghanistan, did not have more than 250,000 troops. The Americans/NATO did not have more than 150,000 troops in Afghanistan at the height of their occupation.
With the help of brute force and violation of international covenants, India has wronged the people of Kashmir living on its side of the ceasefire line. According to a test of “compliance” of UN Resolutions laid down by the Netherlands at the 611th meeting of the Security Council held on 23 December 1952, India has “loaded upon itself a very grave offence, against the other party (Pakistan), against the United Nations and against the right of the people of Jammu and Kashmir to self-determination”.
Pakistan as a “party” to the dispute and as an advocate of the Kashmiri’s Rights Movement, made a strong point that India would not win its war against the people of Jammu and Kashmir and engagement is the last instrument used by civilized societies in settling disputes. We have to come up with a ‘proportionate’ and ‘pointed’ response to vacate the Indian action of 5 August 2019 and actions taken thereafter.
The Indian action seems to have triggered the thought of constitutionally incorporating Gilgit Baltistan into Pakistan. The India-China stand-off in eastern Laddakh is also being seen in this context, underlining that India under PM Modi appears to be overflowing with self-confidence.
Syed Nazir Gilani, a London-based jurist, with encyclopedic knowledge on the jurisprudence of the Kashmir issue, feels that declaring GB as part of Pakistan may weaken its Kashmir case at the UN. Here is what he suggests – outlined also in a recent letter to PM Imran Khan.
(1) Government of Azad Jammu and Kashmir has made the first and last contact with the Chairman of the United Nations Commission for India and Pakistan on 8 July 1948. It has not made any further effort directly or through Pakistan for the last 72 years.
(2) could not discharge its duties in respect of “PLEBISCITE” as provided under Section 8 of the 1970 Act and Section 11 of the 1974 Act.
(3) As a consequence we have not been able to institutionalize this constitutional duty towards Plebiscite for the last 50 years. JKCHR did invite the attention of both Governments in our constitutional writ petition of December 1992, which was decided in April 1999.
(4) Government of Azad Kashmir has sinned less than having been sinned against by lack of robust engagement with Islamabad and lack of regular contact with its people, 2.5 million refugees settled in the four provinces of Pakistan and others living as a vibrant Diaspora.
(5) Government of Azad Kashmir could not make a genuine move or has not been helped or advised appropriately on the 21 listed responsibilities agreed between the three parties to the Karachi Agreement of April 1949.
(6) No mechanism has ever developed that the three parties could sit and appraise the progress on their respective duties. Pakistan has undertaken 8, Government of Azad Kashmir 5 and Muslim Conference 8 duties in the Agreement. The overlap and bureaucratic interference have remained a factor in our unpreparedness on the jurisprudence of the Kashmir case.
(7) The proposal to amend the articles 257 and Article 1 of the constitution of Pakistan to accommodate Gilgit and Baltistan and grant it a “Provisional Provincial Status” to our understanding is a misdirection of wisdom. It will seriously hurt the jurisprudence of the Kashmir Case and would undeniably be considered as a variation in Pakistan’s principled stand on Jammu and Kashmir.
(8) Article 257 would assume life as a consequence of the decision of the people of Jammu and Kashmir, that they are ready for accession to Pakistan. Exercise of the right of self-determination remains a pre-requisite. A condition and a caveat attend upon article 257. Unless the people of Jammu and Kashmir have legal capacity and ability, to make a desire for accession, Article 257 shall remain in a frozen state.
(9) An amendment in Article 1 of the constitution to accommodate GB though provisionally and subject to the implementation of UN Resolutions, would be interpreted as embedded with mala fides.
(10) At this point the accommodation of GB into the territories of the Islamic Republic of Pakistan, through an amendment would deeply wrong its constituency in an UN-supervised Plebiscite and help India to argue her actions of post 5 August 2019 as legitimate. It would be a violation of UN Security Council Resolution of 30 March 1951. We should not be caught in a trap.
Gilani, also the founder of the Jammu Kashmir Council on Human Rights (JKCHR) hopes Pakistan as well as the AJK governments would perform their duties as committed decades ago.
