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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.
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