Kashmir: The Legal and Political Challenges for Pakistan

Kashmiris in 12 constituencies in various parts of Pakistan voted on July 21 to elect the state Legislative Assembly (LA). The Kashmir chapter of the Pakistan Muslim League Nawaz (PML-N) swept the polls by bagging 32 of the 41 directly contested seats. Out of these, 29 seats are meant for all 10 districts of AJK and 12 for Pakistan-based refugees from Kashmir valley, Jammu and others areas.

Ironically, the first-past-the-post system handed a thumping victory to the PML-N despite the fact that it polled about 689,000 votes, while the Pakistan Tehreek-e-Insaf of Imran Khan and the Pakistan People’s Party jointly received 735,000 votes. This however translated only into four seats, meaning thereby that the PML-N Kashmir will determine the fate of Azad Kashmir.

Both Islamabad and Muzaffarabad presently face two pressing challenges: the legal status of the Pakistani part of Kashmir as well its international legal responsibilities. Secondly, the unrest in India-controlled Kashmir and possible consequences for the Pakistani Kashmiri territories.

The skewed distribution of voter power resulting from the recent elections, as pointed out by Dr Syed Nazir Gilani, head of the Jammu/Kashmir Council for Human Rights, necessitates vigilance at all strata of the society to prevent the ruling party from bulldozing democratic norms and flouting constitutional obligations.

“We need to act as vigilant citizens and make sure that PML-N (AJK) doesn’t deviate from the democratic path that is so essential for keeping the cause of Kashmiris alive,” Dr Gilani says.

He points out that the civil society must keep the pressure up so the governments in Muzaffarad and Islamabad understand and do not fail to do the following:

(1) The government of Pakistan has assumed trust responsibilities under UNCIP Resolution in Azad Kashmir “to provide for the better government and administration of Azad Jammu and Kashmir until such time as the status of Jammu and Kashmir is determined in accordance with the freely expressed will of the people of the State through the democratic method of free and fair plebiscite under the auspices of the United Nations as envisaged in the UNCIP Resolutions adopted from time to time”. [The Azad Jammu and Kashmir Interim Constitution Act 1974].

(2) We need to ensure that the new government acts and operates accordingly in the interests of the people and the Kashmir case.

(3) The elected members have to elect five women, one cleric, one member from Kashmiris living abroad and a technocrat in the assembly of forty-nine members. We need to ensure that the elections of these eight members are fair, on merit and in the interests of the people and the Kashmir case.

(4) The Prime Minister of Pakistan needs to ensure that the nomination of these people is fair.

(5) Government of Pakistan has allocated to itself further trust duties under articles 19, 21, 31(3) and 56 of  the AJK Interim Constitution Act of 1974.  Kashmiris need to ensure that the Prime Minister of Pakistan as chairman discharges these responsibilities fairly.

Another potentially debilitating specter staring at Pakistan is the BJP’s ambition to a) entrench itself through pliant Kashmiri leaders, and, b) push the demand for Pakistan army to vacate AJK and and GB, claiming them as their part under the 1947 instrument of accession by the then Maharaja of the State.  Ratification by the constituent assembly had then paved the way for the Indian Parliament to incorporate Kashmiri territories through a unanimous resolution.

This happened in a brazen violation of the UNSC 1948/49 resolutions for plebiscite as well as in contravention of the “limited access” granted to Indian forces in Kashmir in October 1947  to discharge four duties, namely defending the territory, and protecting life, property and honor of the people. This temporary admission has been referred to UNSC by the Indian government on 1st January 1948 for ratification or annulment by the people of Jammu and Kashmir under a free vote supervised by the United Nations. The UNSC Resolution of 21 April 1948 has placed three restraints on the number, behavior and location of these temporarily admitted Indian armed forces.

But the Indian army and its administrations have continuously violated  the terms of reference and has engaged into a war with unarmed civilians, says a paper by Dr Nazir Gilani has authored recently.

Justice Gilani proposes immediate legal measures to blunt this cross-border threat; Pakistan should assert its claim on whole of the State under its constitution as “disputed territory of Pakistan subject to its final disposition in accordance with UNCIP resolutions” on the basis of the spirit  of  Indian Independence Act of 1947, the stand-still agreement by the ruler of the State duly accepted by the Pakistani government, the resolution of All Jammu and Kashmir Muslim Conference dated 19th July 1947 (which was then the sole representative of the Muslims of the State).

Pending that, AJK and GB be placed as “special territories” in the constitution of Pakistan with all the constitutional rights, without making them part or provinces within the spirit of the the Pakistani government’s Cabinet Division notifications dated 11 May 1971 and 6 June 1988. Alternatively, the responsibilities of the projection the UNCIP     resolutions be devolved to AJK government to pursue on behalf of the people of the state around the world.

Kashmiri observers and legal experts believe that a ping-pong with Kashmir has had a negative bearing on the cause and diluted Pakistan’s position on the issue. It is time to demonstrate that Kashmir is genuinely an issue of self-determination and that Pakistan respects this ideal in all possible manner.

The author Imtiaz Gul is the Executive Director of Center for Research and Security Studies (CRSS). This article originally appeared in Friday Times, July 29, 2016. Original Link.

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