Daily Times

Indian Government has imprisoned 8 million Kashmiris living on the Indian side of cease fire line and thousands of marchers gathered to cross the cease fire line from Azad Kashmir into Indian occupied Kashmir have been stopped under the open sky on the Pakistani side of cease fire line. What an irony? It is not clear whether Government of Azad Kashmir or Government of Pakistan has stopped the marchers. Neither of the two would risk accepting the responsibility in public.

There is no doubt that de facto allowing these marchers into Indian occupied Kashmir may be a cause of concern to Government of Pakistan but de jure Government of Pakistan has to admit the right of the people of Azad Kashmir to walk into Indian occupied Kashmir. Cease Fire Line is a subject of the United Nations Security Council. India and Pakistan have nothing to do with it. The present separation of Kashmiris enforced by India and Pakistan is unlawful. It violates Paras 12 and 13 of UN Security Council Resolution 47.

Indian and Pakistani, position is fully explained by Philippines at the 773rd meeting of the UN Security Council held on 20 February 1957. The representative of Philippines at the UN Security Council said, “Under the circumstances and pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir”. Pakistan at this point of Kashmiri march, is caught in a difficult situation, which could be described as finding itself between ‘deep sea and the devil’.

Pakistan Governments have been mishandling the jurisprudence of Kashmir case and as a consequence have made serious errors of judgement. In Azad Jammu and Kashmir Interim Constitution Act 1974, Government of Pakistan has made it clear that it is assuming responsibilities in Azad Kashmir to discharge responsibilities envisaged in UNCIP Resolutions. Government of Pakistan is a partner with Government of Azad Kashmir under Act 1974. Unfortunately, all the Governments in Azad Kashmir for the last 49 years, since Act 1970, have failed to discharge their duties towards “Plebiscite”.

Governments in Azad Kashmir have been a product of Rules of Business 1957, Act 1964, Act 1968, Act 1970 and Act 1974. When it came to Right of Self Determination, every Prime Minister and President has ducked the responsibility and passed the buck on to Pakistan. So far it has been a private gossip but now it is open in the public that Prime Minster of Azad Kashmir, bemoans his powerlessness in not being able to advocate the cause of Kashmir.

It may be partly true but partly it is an exaggeration. Prime Minister of Azad Kashmir is a partner with the Government of Pakistan in the Act 1974 and he is a partner with the Prime Minister of Pakistan in the Azad Jammu and Kashmir Council. He could query the Prime Minister of Pakistan in the AJ & K Council and seek a clarification from him under the Act 1974, as a partner in the discharge of responsibilities under UNCIP Resolutions.

There is a general unease in Kashmiris and their sympathisers in Pakistan and the diaspora. It is growing every day and if any violence is used against the marchers or any violence erupts from among the marchers, it could have serious consequences for Kashmiri and Pakistani trust

Pakistan is faced with a self-imposed indecision and is caught between Shimla Agreement and the UN Resolutions on Kashmir. Azad Kashmir Government does not have its foreign office and has failed to continue to work on the jurisprudence of UN Resolutions on Kashmir. Kashmir Government has drifted away from the responsibilities accepted under UNCIP Resolutions and in building a Kashmiri narrative, as a Kashmiri input for its partner, the Government of Pakistan.

This could be found in the speeches that Government of Pakistan has been making at the UN General Assembly. The Governments in Azad Kashmir remain overwhelmed by the party in power in Islamabad. More time, energy and budget is spent to keep the constituency of favour in Islamabad, than in addressing the “Rights and Dignity” and “Security and Self Determination” of the people of Kashmir.

It is the non-participation and non-input from Azad Kashmir Government that Governments in Pakistan have continued to make errors of judgement on Kashmir. Otherwise Pakistan could have benefitted from Kashmiri expertise in reconciling its position on Shimla Agreement and the UN Security Council Resolutions on Kashmir. UN Resolutions encourage a bilateral engagement between India and Pakistan. However, it has been made clear that any bilateral arrangement has to be just, consistent with the principles of UN Charter and the UN Resolutions on Kashmir.

Pakistan and India have been engaged in bilateral dialogue under Shimla Agreement for the last 47 years. It has not paid. It does not mean that the right of self-determination would continue to remain hostage to an indefinite failed engagement or that the Shimla Agreement has overtaken the UN package on Kashmir. United Nations Resolutions on Kashmir continue to prevail and all bilateral agreements are taken over by Article 103 of UN Charter. It reads, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.

Pakistan should have invoked article 103 and informed the United Nations Security Council that JKLF (Jammu and Kashmir Liberation Front” lead Kashmiri marchers have congregated at Chakothi near the cease fire line and they are raving to cross the cease fire line, in support of Kashmiris unlawfully imprisoned by the Government of India since 5 August 2019. It is unfortunate that Government of Pakistan has misdirected itself and is a victim of indecision. It has stopped the marchers at a close distance from cease fire line and the marchers, men, women and some children are under open sky.

any merit. It has raised many doubts about its understanding of the jurisprudence of Kashmir case Government of Pakistan’s advice or instruction to Government of Azad Kashmir to stop the march does not have and about its ability to Marshall the merits of the case in future. It is clear that the authorities in Pakistan do not have their hands on the handle and their make shift handling of the situation could have serious problems. There is a general unease in Kashmiris and their sympathisers in Pakistan and the diaspora. It is growing every day and if any violence is used against the marchers or any violence erupts from among the marchers, it could have serious consequences for Kashmiri and Pakistani trust.

Government of Pakistan does not have any input from the Government of Azad Kashmir and it does not encourage any input from Kashmiri experts either. It is on its own and the record has not been encouraging from November 1965. The role of the Foreign Office has been amoebic from November 1965. It has developed a habit of walking behind the man in authority. Musharraf’s 4 point formula, routine and ritual statements at the UN are the evidence of a copy paste diplomacy. People in charge of Kashmir in the Foreign Office have a superficial understanding and have been lost in the wilderness for the past 54 years.

Modi Government has been given a walk over by the non-activity of Government of Azad Kashmir and unpreparedness of our Foreign Office. Kashmir is a source of budget and political tourism for many of them in Azad Kashmir and Pakistan. Unless we roller skate ourselves on the jurisprudence of Kashmir case, understand the difference between CFL and LOC, realise the duties under UNCIP Resolutions in Azad Kashmir, differentiate between bilateral engagement and article 103 of UN Charter, reconcile the de facto need to stop the marchers and their de jure right to cross into Indian occupied Kashmir under para 12 and 13 of UN Security Council Resolution 47, we shall continue to wander in the wilderness. We should not hurt the cause of Kashmir.

The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations