Daily Times

The Office of the United Nations High Commissioner for Human Rights (OHCHR) recently released a fair and balanced human rights report on Kashmir. Predictably, it has been dismissed with contempt by the Indian Ministry of External Affairs. The report notes that India rejected access to Indian administered Kashmir. Meanwhile, Pakistan made access to Pakistan administered Kashmir subject to access being granted by India. Obviously, from Pakistan’s perspective, we have less to lose than the Indians. Unlike their side of the LOC, there is no independence struggle being waged on our side. Though that doesn’t mean things are perfect either. Since neither side cooperated, the OHCHR proceeded with remote monitoring.

Most of the report deals with India’s terrible and outrageous human rights violations, including use of excessive force, extrajudicial killings, arbitrary and unlawful detention — including that of children, torture, use of pellet guns, enforced disappearances, violation of the right to health, violation of the right to education, unconscionable restrictions on freedom of expression, reprisals against human rights defenders and journalists and sexual violence.

It points out special draconian laws such as the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 and Jammu and Kashmir Public Safety Act, 1978, which are used to obstruct the natural course of justice and allow the security forces to carry out the aforementioned atrocities with impunity. The Supreme Court of India upheld these laws as constitutional. The section on India comprises damning allegations but the Indian media has characteristically towed the national line. Even a staunchly liberal journalist like Barkha Dutt dismissed the report as airy-fairy and further alleged, incorrectly, that the report makes no mention of terrorism and the armed groups active in Kashmir. In truth, however, the report has a whole section dedicated to these armed groups, which are said to be operating out of Pakistan and allegedly have ties with Pakistan’s security establishment. The report also mentions crimes against Hindu Pundits, who are often targeted by these groups.

The mood on the Pakistani side is almost triumphant. It is almost as if we have taken all of Kashmir. Unfortunately, we are quite mistaken, because while it is true that the report dedicates a much larger space to Indian atrocities, it still does paint a rather unflattering portrait of the events in Pakistani administered Kashmir.

The UN Resolutions we rely on, rightly, applies not just to the territory known as Azad Jammu and Kashmir but also to Gilgit Baltistan (GB). While it is true that the people of GB have long asked for their constitutional rights within our federation, the Independence Act of India 1947 made the whole state of Jammu and Kashmir a princely state. So when read with the UN resolutions, it is clear that the whole territory must be considered one. It would be impractical to go into history and consider all competing claims in this article; but this is the regions legal situation.

We must realise that neither Pakistan nor India can take any more Kashmiri territory by force. Therefore, it is time to dismantle the security infrastructures on both sides beyond what is necessary

Here we must ask, if India agrees to a plebiscite in accordance with the UN resolutions, would Pakistan allow it? Given the investment that has gone into China Pakistan Economic Corridor (CPEC), it seems quite unlikely that Pakistan would ever want to put itself in any position that compromises its strategic position on the issue. At a recent talk at Jinnah Institute, I aired an unpopular opinion which I will repeat here. The Kashmir issue as we know it has already been resolved to the detriment of the Kashmiri people. Both India and Pakistan are quite happy with the status quo. Since the outside world is unwilling to intervene, nothing is likely to change. Thankfully though, this report shows that the UN is still interested at some level in fulfilling its mandate.

Coming back to the issue of our own failings in Kashmir, the report says that despite a constitution and a parliamentary form of government for the entity known as Azad Jammu and Kashmir, with a President and a Prime Minister, the government is effectively run by Islamabad.

Similarly, while most laws enacted by Pakistan are applied to AJK through the AJK Adaptation of Laws Act 1988, AJK has no representation in the Pakistani National Assembly. Therefore the report says that while AJK has trappings of a sovereign state, it is only nominally independent, with power resting in AJK Council in Islamabad to override decisions taken by the centre. The same situation exists in GB, which only recently got its legislature. There are also restrictions in both regions on the right to freedom of expression and political association. All members of the legislatures have to take an oath supporting the accession of AJK to Pakistan.

The report speaks of a violation of land rights and forced dispossession. Furthermore it points out that just like the rest of Pakistan, the blasphemy law is in force. The report says that as with the Constitution of Pakistan, Ahmadis have been declared Non-Muslims in Kashmir as well and their religious ceremonies are criminalised in the same manner. These provisions violate Pakistan’s own commitment to human rights. Therefore, the situation on the Pakistani side of Kashmir does not present a rosy picture.

It is high time that Pakistanis and Indians checked their overinflated national pride and actually come together to resolve this conflict for the sake of common Kashmiris. All parties must come to the table and realise that we reached a stalemate long ago.

What is needed is an out of the box solution that preserves the spirit of self-determination while accepting ground realities. First and foremost, we must realise that neither Pakistan nor India can take any more Kashmiri territory by force. Therefore, it is time to dismantle the security infrastructures on both sides beyond what is necessary.

For our part, we must ensure that our soil is not used for the support of any armed groups. A political settlement must also be pursued, which in my mind would run as follows. GB and AJK’s autonomous units in the Pakistani federation must be given representation in the National Assembly, and this must be made a permanent feature of the Pakistani constitution.

On the Indian side, Article 370 should omit subsection 3 from the Indian Constitution and Section 48 of Part VI of the Constitution of Jammu and Kashmir. Once this is done, JK (Indian) and AJK (Pakistani) should be allowed to enter a cultural union through a treaty allowing for free movement of people, ideas and goods between the citizens of these entities.

Simultaneously, Pakistan and India should enter a pact declaring the Kashmir areas part of a no-war zone. This would restore Kashmir’s cultural unity under shared sovereignty and would help end the brutalization of its people. Kashmir could then act as a bridge between the two South Asian behemoths and allow us to build a better future for the whole subcontinent.

The writer is a practising lawyer and a Visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh

Published in Daily Times, June 19^th 2018.