Daily Times

Respected Sir Two most important issues of public, security and strategic interest taken up by the Hon’ble Supreme Court under your leadership have a direct as well as indirect bearing on Azad Jammu & Kashmir as well. First of them relates to the status of Gilgit-Baltistan and the second is water conservation and preservation. Given my interest in constitutional and legal aspects of Kashmir and Pakistan studies, I avail the opportunity to bring a few facts in your kind notice.

The state of Jammu and Kashmir has a chequered political history as every region composing the state has a different, distinct and individual identity amalgamated under a single rule and people of each of the regions have their distinctive aspirations, but admitted position under Indian Independence Act 1947, and UN Resolutions is, that they were part of a princely States and their future has to be decided in accordance with UN Resolutions. Gilgit -Baltistan and Azad Jammu and Kashmir are no exception to it.

But that does not mean that the regions and people living therein should have no human rights, political identity and suffer for democratic deficit despite being governed by the State of Pakistan as defacto provinces like all other provinces of the country, with all the obligations of a province without provincial rights and privileges under the false pretext of being “Disputed Territories”.

With all my poor knowledge of Law, Constitution and Jurisprudence of Kashmir issue, I have no doubt in my mind that “pending final disposition of the dispute of the State of Jammu and Kashmir, the parts of the state under political, administrative, security control and administered like provinces, are parts of Pakistan and entitled to all those rights, powers and privileges to which rest of Pakistani provinces are entitled.”

The government of Pakistan had issued a notification back in 1971 directing that “AJK shall be treated like a Province for all practical purposes——-,” and since then, it is so treated. Copy is attached herewith. All matters of Federal and executive nature which vest in Parliament and GOP vis-à-vis other Provinces of Pakistan, vest in GOP in relation to AJK as well as GB.

I have decided several cases within the parameters of spirit of these politico- constitutional parameters. I may refer two of them here; PLJ 1999 AJK-1; PLD 2006 AJK-1:  and PLD 2006 Lah-465 (a case from Lahore High Court jurisdiction on my petition). Besides above, two editions of a book titled “Azad Jammu and Kashmir and Gilgit Baltistan Enhanced Autonomy and Empowerment” and, my autobiography dilates in detail on the subject.

A committee headed by Mr. Sartaj Aziz appointed by the Government of Pakistan has also recommended representation of both the areas in the constitutional institutions of Pakistan and suggested for synchronizing both the areas accordingly through its report.  The report of Sartaj Aziz Committee is reliably said to be submitted to the Prime Minister of Pakistan in March 2017. The Hon’ble Court is requested to send for the report from Foreign Office or Ministry of Kashmir Affairs.

This is the best ever way out in the interest of Pakistan and the people of these areas to be streamlined, empowered and brought at par with rest of the country and country men without compromising on disputed character of the State under UN Resolutions. Thus a direction is required from Hon’ble Supreme Court of Pakistan for implementation of the report.

The issues raised in the matter of GB case are directly as well as indirectly connected with the constitutional status of both the areas of the state of Jammu and Kashmir under administration of Pakistan including rights of the people in water, mineral and financial resources of the areas like and equal to all other administrative units of Pakistan

Secondly I would like to talk about water conservation and preservation. Your lordship is resolute on the issue and in a way, assumed a national burden out of your domain in making it possible which is most appreciable and commendable.

Under the Indus Water Treaty (IWT), Jhelum is one of the rivers which fall in the share of Pakistan. It undisputedly runs through the province of Kashmir and enters Muzaffarabad District in the control of Pakistan from the eastern side. River Neelum is one of the biggest tributaries of Jhelum and runs through Muzaffarabad district from its western side. The entire district is situated and habituated in between and around these two rivers. The course of river Neelum/Kishanganga is diverted for Neelum-Jhelum (NJHEP) with the capacity of generating 969 MW. The length of its tunnel is 32.5 KM and an area of 69.5 Km down below is affected by diversion of this river. Natural sources of drinking water through springs and streams carrying the spring water have submerged in the tunnel area, creating drinking and irrigating water scarcity by change of course of springs and underground water besides adversely affecting the environment and vegetation through out areas from where NJHEP tunnel passes.

The area of 69 km through which this river passed is dangerously affected by diversion, casting catastrophic affect on the bio diversity including entire environmental system and dilution of sewerage which is carried by this river besides affecting the underground water level for want of mitigating measures in the area apart from raising the temperature leaving no attraction for tourism and industry attached therewith. Even the conditions imposed by Environmental Enforcement authority are not acted upon. Copy is attached.

Kohala Hydroelectric Project having capacity of generating 1124 MW power is in pipeline which will divert Jhelum water through 17.2 km tunnel affecting 62 km area down below through which river normally passes. Once this too is completed, it will compound the miseries of human, animal, vegetation life besides affecting entire environment and ecosystem.

It will not be out of place that WAPDA could generate more power than the one it is to generate through the proposed projects if universal system of ‘run of river’, Hydroelectric projects are installed, which could create multiple small dams with multiple economic opportunities and attractions for local and non local tourists through out the river beds surrounded by forests and lush green mountains with abundant water reservoirs for drinking, irrigation, recreational navigation and fishing etc.

Respected Sir!  WAPDA has constructed several other hydrel Projects in AJK, besides the biggest Mangla Dam project, all of which contribute power to national grid, but no profit is shared with AJK within the spirit of Art. 161 of the constitution of Islamic Republic Pakistan 1973, on the pretext that AJK is a disputed territory and not a Province of Pakistan under the Constitution, neither are the Provisions of Articles 153 , 155, 156, 156, 160 and other articles followed on the same pretext.

Assuming so, without prejudice to what is stated in Para 1, WAPDA or any authority has no locus-standi to undertake any project in the disputed territory not forming part of Pakistan without agreement with the local Governmental authority or UNSC which is seized with the Kashmir issue. Same issues would arise in relation to Diamer-Bhasha Dam, being located in the territory in dispute in UNSC. People of the area have serious genuine reservations and anger against this attitude and double standard of GOP by using the natural resources of the area as their own, but refusing sharing its dividends on pretext of “Disputed areas and not being part and Provinces of Pakistan.”

Sir! No sensible person can be against the construction of Dams for hydrel generation or preservation and conservation of water, but there is equally no sense in doing that at the cost of human lives and biodiversity. All that is being done with AJK rivers is, at the cost of people living therein without caring for international standards regulating water resources or undertaking hydrel projects, moreso the efforts which Hon’ble SCP is leading through your lordship.

Respected Sir! The issues raised in the matter of GB case are directly as well as indirectly connected with the constitutional status of both the areas of the state of Jammu and Kashmir under administration of Pakistan including rights of the people in water, mineral and financial resources of the areas like and equal to all other administrative units of Pakistan.

Both the areas, not being included in the definition of Provinces of Pakistan go unrepresented in Parliament, CCI, NFC, IRSA and all other law, policy and decision making institutions, but are bound by their policies and decisions and remain at the mercy of politico-bureaucratic nexus. It has retarded the democratic and constitutional development of the areas, alienated the people from mainstream which in turn, brews hatred against Pakistan.

All this is done under the frivolous and lame excuse of the Kashmir cause which has nothing to do with the internal rights under the constitution as citizens and human beings, moreso, when the political, international and disputed character of the areas is not altered, rather reinforced by commitment that “arrangement for rights and privileges is subject to final determination of Kashmir issue in accordance with un resolutions”.

Given the lack of political will and politico-bureaucratic nexus for their ulterior ends, all these issues require similar, simultaneous and composite direction by the Hon’ble Court for both the areas in the larger interest of public, safety and security of state within the spirit of Sartaj Aziz Committee report of March 2017.

Respected Sir! It is sincerely requested that the matters may be consolidated and decided once for all and I will be available for any further elucidation and clarifications on constitutional and international dimensions of the issues.

The writer is a former Chief Justice of the Azad Kashmir Supreme Court. He can be reached at manzoorgilani@hotmail.com

Published in Daily Times, November 2^nd 2018.