If Government of Azad Kashmir and Government of Pakistan do not act quick and interface with each other, in the interests of the People of Jammu and Kashmir according to UN template and other existing jurisprudence, there is danger that we may become guilty of signing off the habitat and people living on the Indian side of the cease fire line to India for ever and in perpetuity.
There should be no disagreement on the fact 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 February 1957). Article 257 of the Constitution of Pakistanexplains that any relationship with the people of the state would be settled as a consequence of self-determination and according to the collective wishes of the people. UN Security Council Resolution of 30 March 1951 locks India into a compliance of UN template on Kashmir.
The first formal relationship of the State of Jammu and Kashmir (there was no AJK) with Pakistan was created in August 1947. The two Governments signed a Stand Still Agreement. Other earlier references of the relationship are contained in the Provisional Declaration of 24 October 1947 and in the letter of 8 July 1948 written by the President of Azad Kashmir Sardar Ibrahim Khan to chairman UNCIP.
AJK Government has failed to assume itself in accordance with the UNCIP template. Under Constitutional Act 1974 it admits to have established itself as a ‘provisional administration’ to ‘provide for the better Government and administration until such time as the status of Jammu and Kashmir is determined …through the democratic method of free and fair plebiscite under the auspices of the United Nations as envisaged in the UNCIP Resolutions.” (Act VIII of 1974). If the Government of AJK had assumed itself as provided in UNCIP Resolutions or if the Government of AJK and Government of Pakistan had kept the course as agreed in the “discharge of responsibilities under the UNCIP Resolutions”, 5th of August 2019 would not have happened.
Government of AJK and Government of Pakistan can no more depend on the pre 5 August 2019 political DNA and play police man and the thief. The two Governments have to reconcile themselves on the UN template and other jurisprudence as quick as possible
There is no evidence that the Government of AJK and the Government of Pakistan have made any genuine efforts in the discharge of UNCIP responsibilitiesuntil 5 August 2019 happened. On the contrary Government of Azad Kashmir has very poorly argued its duties (rather has upheld a manner of Indian role) while defending itself during the hearing of a constitutional petition number 122 of December 1992 filed by Jammu and Kashmir Council for Human Rights (JKCHR) in the High Court. (Yearly Law Reporter 1999).
One would not mind much about how Muzaffarabad and Islamabad agreed upon providing a “better Government and administration”. However, there should have been no dithering, no compromise or neglect in the discharge of responsibilities under UNCIP Resolutions and UN template on Kashmir.
Government of AJK has also continued to skip on its constitutional duties towards Plebiscite contained in Act 1970 and Act 1974. One could safely say that AJK Government has turned every stone in its favour except lifting a pebble in favour of Plebiscite from 1970, for about 51 years. It is interesting to note that article 8 of Act 1970 and Article 11 of Act 1974 recognise the President for this duty.
Unfortunately the induction of a diplomat as President by PMLN Government and the establishment, bending all rules and violating local practices, (probably in good faith) has not worked. He had never defended the jurisprudence of Kashmir case beyond the routine summary and policy of the Government.
The Governments have been guilty of sweeping Kashmir under the carpet and not raising it at the UN Security Council from 5 November 1965 to 15 September 1995, for 32 years. (UN SC Doc S/1996/603 of 22 August 1996). President of AJK has his share in this disservice to the cause of Kashmir.
He has failed to discharge himself in respect of Plebiscite as provided under the constitution of AJK and as decided by the AJK High Court on 2 April 1999. Hopes and expectations that he would ensure that “the democratic set up provides ever fresh fillip to freedom struggle to the people in Occupied Kashmir”, and UN template would be energized have not been fulfilled.
Like President Musharraf, he decided to act outside the box and at variance with UN template on Kashmir. He introduced seven points for the resolution of Kashmir dispute and went on adding two more, one after the other till he reached nine points. There was no one in the Government who could have advised him that he is recognized for works under Article 10 and Article 11only.
President has been a good diplomat. It does not make a person an expert in the jurisprudence of UNCIP Resolutions or UN SC Resolutions on Kashmir. He has surprised us in his tweet on 30 March 2021 and said “Pakistan is incomplete without Jammu & Kashmir, and Kashmir is also incomplete without Pakistan. If there was no Azad Kashmir, the issue of Kashmir would have been dead long ago. The issue of Junagarh and Hyderabad disappeared because there was no Azad Junagarh or Azad Hyderabad.”
His tweet was at war with the Pakistan’s case on Junagarh and Hyderabad and at variance with Kashmir case itself. According to Para IV of Pakistan’s Document II submitted to UNSC in January 1948 Junagarh and Hyderabad had lawfully acceded to Pakistan and form part of Pakistan territory”. Therefore, there could be no “Azad Junagarh or Azad Hyderabad”. More so in January 2021 Pakistan has asked the UN SC to retain the Junagarh and Hyderabad on the agenda. Admitting that Junagarh and Hyderabadare dead issuesand then making a written application to place them on the UN SC agenda, does not make any sense.
The role of Pakistan in Azad Kashmir is a consequence to UNCIP Resolutions and only as a subordinate supplement to the Executive Authority of the Government of AJK. A settled authority of Pakistan would emerge only after People of the State collectively structure the terms of a future relationship under Article 257 of the Constitution of Pakistan.
President should have known that “the democratic set up provides ever fresh fillip to freedom struggle to the people in Occupied Kashmir” and the preamble sets out that “it is provisional until .Such time as the status of Jammu and Kashmir is determined under UNCIP Resolutions”. Pakistan has to help AJK to assume as provided in UNCIP Resolutions.
Government of AJK and Government of Pakistan can no more depend on the pre 5 August 2019 political DNA and play police man and the thief. The two Governments have to reconcile themselves on the UN template and other jurisprudence as quick as possible. Unfortunately the evidence does suggest that neither of the two Governments has a plan of action. August 5, 2019 happened because people vested with a trust and charged with a duty in Muzaffarabad and in Islamabad failed to deliver their respective shares of duty as accepted under UNCIP Resolutions.
Government of Pakistan and the establishment need to know that Pakistan has assumed for itself a role in AJK under UNCIP Resolutions and a role in the Kashmir case under UN Security Council Resolutions. If UN template on Kashmir is wronged in AJK – Pakistan would render itself as an occupier and a non-party. The emergence of any such situation would make the work of Kashmiri advocates on the right of self-determination very difficult. If early steps are not taken we would be signing off the people living on the Indian side of cease fire line to the Indian rule in perpetuity. Government of Pakistan has to address the rumors making rounds and doubts created in the minds of seven Kashmiris living at Srinagar, Jammu, Ladakh, Muzaffarabad, Gilgit, 2.5 million refugees living in Pakistan and the Kashmiri diaspora.
The writer is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations