South Asia

Looking within the other Kashmir
By Navnita Chadha Behera

NEW DELHI - February 5 was observed as "Kashmir Solidarity Day" by Pakistan and Azad Kashmir, the section of Kashmir administered by Pakistan.

Walks, protest demonstrations and seminars were held throughout the country to express support and solidarity with the Valley Kashmiris fighting for their right to self-determination. Addressing the joint sitting of the Azad Kashmir legislative assembly and the Azad Kashmir council, Pakistan's Prime Minister Mir Zafarullah Khan Jamali reiterated that Pakistan is incomplete without Kashmir, and it would continue to extend political, diplomatic and moral support to liberate its "jugular vein" from the clutches of Indian imperialism.

What was conspicuously missing in Jamali's speech, though, was any reference to Azad Kashmir's achievements in the political, economic and social sphere in the past five decades. He constantly highlighted the plight of the Valley Muslims suffering under Indian "subjugation" (in Indian-administered Kashmir) but did not make a case of how their counterparts in Azad Kashmir and the Northern Areas - under Pakistan's control - have flourished in comparison.

Indeed, right from 1947, when India and Pakistan were created, Pakistan's claim to Kashmir has never gone beyond the religious plank. The original argument was that according to the two-nation theory, the Muslim-majority state of Jammu & Kashmir belonged to Pakistan, not India as is now the case. Its current formulation is that Muslim brothers in Kashmir are suffering under Indian "occupation", hence they must be given their right to self-determination, which Pakistanis assume will be exercised by the Kashmiris to accede to Pakistan. Beyond the religious affinities, they have never made a political case of what Kashmiris would gain if they were to join Pakistan.

This is partly because Pakistanis continue to harbor the belief that Kashmir acceded to India solely because of its Hindu maharaja, who, given the choice, opted for India. They refuse to accept that the popular Muslim leadership of the National Conference also supported the accession because they believed that Kashmir's political autonomy would be better protected in a secular and democratic Indian state.

Sheikh Abdullah's opening speech to the J&K constituent assembly made the point that Pakistan's claim of being a Muslim state is "only a camouflage" to cover the "feudal and reactionary character of her politics and state policies". In Pakistan, he added, "The lot of the state's subjects has not changed and they are still helpless and under the heel of their rulers who wield the same unbridled power under which we used to suffer here. This clearly runs counter to our own aspirations for freedom." He stressed that "Pakistan cannot have the confidence of a freedom-loving and democratic people when it has failed to guarantee even fundamental rights of its citizens in the absence of a constitution."

Fifty-five years later, political conditions in Azad Kashmir and the Northern Areas (the erstwhile Gilgit and Baltistan) have validated Sheikh's political assessments.

Pakistan has long denied basic civil and political rights to the Kashmiris living in the areas under its control. It took more than two decades to grant the right to adult franchise to the people of Azad Kashmir. They exercised their right to vote for the first time in 1970. The Northern Areas fared much worse. Its populace had no right to adult franchise until as late as 1994 - 47 years after living under Pakistan's direct administration.

The political status of Azad Kashmir and Northern Areas also continues to hang in balance. Azad Kashmir is azad (free) only in nomenclature. Its status has never been defined in normal international legal terms by the Azad Kashmir or Pakistan governments or the United Nations.

According to the United Nations Commission for India and Pakistan (UNCIP) resolutions, Azad Kashmir is not a sovereign state nor a province of Pakistan, but rather a "local authority" with responsibility over the area assigned to it under the ceasefire agreement. The "local authority" or the provisional government of Azad Kashmir as established in October 1947, had handed over matters related to defense, foreign affairs, negotiations with the UNCIP and coordination of all affairs relating to Gilgit and Baltistan to Pakistan under the Karachi Agreement of April 28, 1949.

The Northern Areas are a constitutional enigma as the only area in Pakistan whose status is not specified in the constitution. While Kashmir is mentioned as a disputed territory, the Northern Areas are not even mentioned in the relevant schedule. Nor does it have an autonomous or constitutional status of its own. Thus, the people of the Northern Areas are not citizens of Pakistan within the meaning of the constitution and they do not enjoy the fundamental rights guaranteed by the constitution.

In the aftermath of partition, these areas were declared to be part of the disputed territory of Jammu & Kashmir state so that whenever a plebiscite was held, their votes would go in favor of Pakistan. In 1963, Pakistan unilaterally ceded a sizeable chunk of Gilgit and Baltistan to China, which has long had territorial claims in the area.

Over the years, especially after the Shimla Agreement in 1972, successive Pakistani governments have sought to amalgamate these areas into Pakistan by declaring them as "federally administered territories". The Azad Kashmir governments, on the other hand, have been arguing ever since 1950 that Gilgit and Baltistan were a part of Kashmir and should thus be incorporated into Azad Kashmir.

On being petitioned on the status of the Northern Areas, the Azad Kashmir High Court passed a verdict in March 1993 inveighing against the unrepresentative and arbitrary administrative system and denial of fundamental rights in the Northern Areas. It directed the Azad Kashmir government to immediately assume administrative charge of the region and asked the government of Pakistan to assist the Azad Kashmir government in this task. The Pakistan government appealed in the Supreme Court, which, in a judgment passed on September 14, 1994, stated that "the conclusion which we reach is that the Northern Areas are part of Jammu & Kashmir state but are not part of Azad Kashmir as defined in the Azad Kashmir Interim Constitution Act, 1974".

Until 1994, the people of the Northern Areas had no elected assembly, or even a municipal council, and no representation in the federal assembly (though granted limited "observer status" for a while during the Zia-ul-Haq period). In October 1994, the federal government allowed the political parties of Pakistan, but not of Azad Kashmir, to extend their activities to the Northern Areas.

The first party-based elections to a 26-member council called the Northern Areas Executive Council were held in October 1994, and it was announced on March 31, 1995, that its members would have the same status, emoluments and privileges as the members of the North West Frontier Province legislative assembly.

But the council had no legislative authority, only advisory powers. The real power continued to be vested in the Ministry of Kashmir and Northern Areas Affairs headed by a joint secretary to the government of Pakistan sitting in Islamabad, which exercised supreme control in all matters. Pakistanis manned the civil, police and security services. There was no right of appeal against the judgements of the judicial commissioner.

Following a verdict of the Supreme Court of Pakistan in March 1999 recommending the extension of legislative, financial and administrative powers as well as an independent judiciary with writ jurisdiction, the first Northern Areas Legislative Council was elected in 2000. Under the new legal framework order, it was granted powers to legislate on local matters and impose local taxes. But the superstructure of the Northern Areas administration was left unchanged so that Pakistan's federal minister for Kashmir affairs continues to be its chief executive. The Northern Areas' chief secretary implements all decisions of the federation of Pakistan.

Evidently, the system has failed to deliver. It has not been able to legislate, has no financial autonomy and has little say in planning and executing development in the Northern Areas. It also imposes no taxes because the Northern Areas administration has not provided for a collection mechanism. Despite the Supreme Court judgement, people continue without their fundamental right of filing writ petitions. Local people perceive it as an alien administration because it is not accountable to them but to the federal government alone. When the rest of Pakistan voted for a new civilian government in October 2002 elections, the Northern Areas remained marginalized from the political process.

In Azad Kashmir, the 1974 constitution devised by Zulfikar Ali Bhutto's government provided for two executive fora - the Azad Kashmir government in Muzaffarabad and the Azad Kashmir council in Islamabad. The council is presided over by the prime minister of Pakistan and includes six other federal ministers, the prime minister of Azad Kashmir, six Azad Kashmir members elected by its assembly and the minister of Kashmir Affairs as the ex-officio member.

The constitution listed 52 subjects - virtually everything of any importance - under the jurisdiction of the council which was described as the "supra power" by the Azad Kashmir High Court. Its decisions are final and not subject to judicial review.

An ex-president of Azad Kashmir describes the situation as "government of Azad Kashmir, by the Pakistanis, for Pakistan". He also pointed to the striking continuity of the "old princely system" under British rule because of Islamabad's "viceroy" role generally and the maintenance of the traditional biradari system locally.

Under Section 56 of the constitution, the Pakistan government can dismiss any elected government in Azad Kashmir irrespective of the support it may enjoy in the assembly. Another instrument of exercising control is through assigning virtually all top civil and police administrative posts to Pakistan cadre officials who are "on deputation" from Islamabad. Finally, the Azad Kashmir government is totally dependent on the central government for its finances.

Successive Pakistani regimes have avowed that Jammu & Kashmir's political future must be determined in accordance with the wishes of those people. Yet its own constitutional provisions preclude all political choices to Kashmiris except to support its accession to Pakistan.

The 1974 constitution bars from elective office any person "propagating any opinion or acting in any manner prejudicial or detrimental to the ideology of the state's accession to Pakistan". The oath of office for the president, prime minister, speaker, member of legislative assembly or council of Azad Kashmir clearly incorporates a clause which states, "I will remain loyal to the country and the cause of accession of the state of Jammu & Kashmir to Pakistan".

Since the Jammu & Kashmir Liberation Front led by Amanullah Khan and the Jammu and Kashmir Peoples National Party refuse to take this pledge, they have never been allowed to contest elections and participate in the assembly. Those seeking public employment or enrollment in educational institutions must also uphold this ideology.

The growing cross-border movements among the Kashmiris, especially militant leaders, throughout the 1990s have exposed Valley Muslims to the ground political realities in Azad Kashmir and the Northern Areas and left them disillusioned. They have seen the deficiencies of Pakistan's assumed guardianship of their human rights and right to self-determination.

In coveting the Indian part of Kashmir, Pakistan has neglected and subjected its own populace to servitude. Pakistan must look within and devote its energies toward meeting the political aspirations of its own Kashmiris before seeking to control the fate of those who live across the Line of Control that separates the two regions.

(©2003 Asia Times Online Co, Ltd. All rights reserved. Please contact
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Feb 20, 2003



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