Published On: Mon, Oct 9th, 2017

Catalan Referendum and Kashmir Referendum – Commonalities

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Dr. Syed Nazir Gilani
nazir-gilaniReferendum has picked up pace and is broadly accepted as a right of all people to express themselves in regard to their status as a community. Laws cannot force an unwilling people to be governed without their consent. On 18 September 2014 people in Scotland voted in a Referendum to remain in the United Kingdom. The vote of independence failed. Kurds voted for an independent Kurdistan on 25 September 2017. Its legality has been rejected by the federal government of Iraq. People of Catalan voted for independence from Spain on first October 2017. The vote was arranged by the Regional Government of Catalan.
Carles Puigdemont leader of the autonomous region has said that Catalonia will declare independence from Spain in a matter of days. He said that his government would “act at the end of this week or the beginning of next”.
Spain is contesting the Catalan referendum and is considering to use article 155 to suspend the Regional Government of Catalan. Article 155 (a) states “If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or should act in a manner seriously prejudicing the general interest of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefor, may, following approval granted by an absolute majority of the Senate, adopt the means necessary in order to oblige the latter forcibly to meet said obligations, or in order to protect the above-mentioned general interest.”
Initially there was a divided support to the referendum. But the use of force and violence by federal government of Spain, has broadened the constituency of support and sympathy for the Catalonian people, in Spain and from around the world. It is generally argued that Spain can’t use law and force to coerce an Autonomous Community from expressing themselves in a peaceful manner through a vote. Support across the world is growing in support of the Referendum.
The people of Jammu and Kashmir have to go through a similar referendum. However, Jammu and Kashmir referendum is far different from Scottish, Kurdish and Catalonian referendums. The right of self-determination of the people of Kashmir has been clearly and formally recognised and accepted by India, Pakistan and the world represented in the United Nations.
Kashmir referendum is fully explained by Netherlands at the 566th meeting of UN Security Council held on 10 November 1951. Netherlands representative in the Security Council Mr. Von Balluseck stated, “The lack of agreement therefore, does not concern this right of self-determination. It concerns the ways and means and procedures to establish the conditions for a fair expression of the will of the people of the State of Jammu and Kashmir who want to make their choice free from any kind of fear or intimidation.”
Netherlands representative further added, “When I spoke about this problem before the Council on 29 March 1951, I contended that the issue should, in the last analysis, be decided by the people of the State of Jammu and Kashmir themselves, and not the rulers heretofore placed over them, and that no prearranged political organization in any part of the State concerned, and set up under the auspices of authorities which had already made their, choice should interfere with their complete freedom of choice.”
Netherlands representative went on to add, “For that reason my Government welcomed the paragraphs in the preamble of the resolution adopted by the Security Council on 30 March 1951 to the effect that the convening of a Constituent Assembly for the purpose of determining “the future shape and affiliation of the State of Jammu and Kashmir” could not constitute a disposition of the State in accordance with principle of determination through the democratic methods of a free and impartial plebiscite set up under the auspices of the United Nations. In this respect I associate myself entirely with what was said just now on this aspect of the matter by the representatives of the United Kingdom and the United States.”
Kashmiris have a stronger case than Catalan. It has been duly recognised by the United Nations and has all the ingredients required for self-determination as opposed to separatism. People of Jammu and Kashmir have to revisit their case of Referendum. It can be done by examining the UN mechanism to arrange a referendum in Kashmir and keeping an eye on the developments that take place since after the address by Prime Minister of Pakistan at the UN General Assembly on 23 September 2017. All efforts are welcome provided they help to increment the Kashmir case.
The people of Kashmir, their leaders at all levels and the parties to the dispute have to start studying the UN mechanism on holding a Referendum in Kashmir. In particular, the people of the State need to research and find out why Czechoslovakia wrote a separate note to the Third UNCIP Report on Kashmir presented to UN Security Council and accused UNCIP of Pusillanimity and Double-dealing.
It is unfortunate that opinion makers in Kashmir have been over-taken by the ‘Bushmen’, who did not have any ability or understanding to appreciate the Kashmir case. Our leaders at all levels, Class first gazetted, Class two gazetted and the Non gazetted have misdirected themselves and remain part responsible for the death and destruction in the State.
There was no need to place our youth, our women, our children and the habitat in the harm’s way. Our opinion makers failed to prevail on our political leaders in flagging the merits of numericals in a future referendum. Kashmiri leaders failed to appreciate the risks of a number deficit during a future referendum. Kashmir has lost one and a half generation. It would take another 18-25 years for another generation to attain the legal capacity to take part in a UN supervised referendum.
Our ignorance and unreliable knowledge of Kashmir case is our enemy. We have never discussed our case within our own community. Referendum is not a ‘take away’ that we would either drive in or go into the restaurant to pick up our meal. We had to argue our case with India, Pakistan and the United Nations. We have not. Kashmir was not raised at the UN Security Council from November 1965 to September 1996.
There is a need to understand that United Nations has finalised a mechanism to conduct a referendum in Jammu and Kashmir. People of Jammu and Kashmir have never made any proper reference to the United Nations, that the UN resolutions have frozen them and their supporters into a non-action and non-defence. Therefore, in the event of a threat to their life, property and honour, United Nations has to step in. The element of a military intervention should have been left to the United Nations, to handle. UN did not have a capacity to intervene militarily in Kashmir in August 1948. Over the years it has developed the capability to intervene.
There is an overwhelming desire among our leaders that India and Pakistan should fight it out for the people of Jammu and Kashmir. United Nations encourages member nations to find solutions through a bilateral engagement. India and Pakistan have been through Tashkent Declaration and Shimla Agreement. It is a welcome process but could not be open ended till eternity. The failure in bilateral engagement could not impact the UN mechanism on Kashmir and United Nations has to interfere.
Government of India has been overly relying on Tashkent Declaration and Shimla Agreement. There is no issue with this reliance, except that Indian leaders misinterpret these agreements. It has been 51 years and 8 months and 45 years and 2 months since Tashkent Declaration and Shimla Agreement were inked by the two countries. Pakistan is a party to the dispute and she can make a fresh reference to the UN, on the zero results from these bilateral agreements. Pakistan can flag the wrong done to the people and habitat in Kashmir and request for taking appropriate steps to implement the UN finalised mechanism. Article 103 of the UN Charter cancels out all interpretations of bilateral agreements relied upon by the government of India.
There is a school of opinion, which flags the 1975 Indira-Abdullah Accord as a final settlement. This accord and even any expression in the Jammu and Kashmir Constitution adopted in November 1956, cannot override the caution of non-representation and identification of UN supervised vote in UN Resolution of 30 March 1951. Sheikh Abdullah and the Jammu and Kashmir Government did not represent the people of Azad Kashmir, people of Gilgit and Baltistan, 2.5 million Kashmiri refugees living in Pakistan and the Kashmiri Diaspora. Therefore, Delhi accord has no merit at core.
It is not necessary that Hurriet would survive its follies for long. Its ad hoc politics at the cost of human suffering may not see many tomorrows. Hurriet has failed to prevail upon Pakistan through its wise inputs, it has started shrinking, has lost its embassy (Awareness Bureau) in Delhi, has lost control on its representation in Islamabad, has disappeared from the United Nations in Geneva, had shown no sense of judgement in accrediting organizations and individuals in Islamabad, London, Brussels, Washington and does not have any clue in regard to the jurisprudence of Kashmir case.
Hurriet has not been honest and equitous in its interactions and judgment. Hurriet flagged as a great symbol of Kashmiri resistance at the Islamic Summit in Casablanca in December 1994, received with great interest at the UN Human Rights Commission and Sub Commission sessions in Geneva and the Hurriet that is served with summons by NIA belong to two separate worlds. Hurriet has left a space for the Government of India to fill. Hurriet can still resurrect itself. It shall have to conduct a thorough audit of its mistakes, the major one being, continuously demanding the pound of flesh from the people of Kashmir. We would not like Hurriet to fail or the structure to collapse.

I am confident that one day Kashmir would have a leader like Carles Puigdemont of Catalan, who would stand up to Indian repression and set a date for referendum. Mehbooba Mufti could do it and so could Omar Abdullah. They have to do so when in power. There is no merit to share power, if Kashmiris lose their pride and the habitat is stripped of its glory. Sheikh Abdullah, Bakhshi Ghulam Mohammad, Syed Mir Qasim, G M Shah, Mufti Mohammad Saeed and others are consigned to history. The people at the habitat are still there locked in a fight with history.
The author is the President of JKCHR – NGO in Special Consultative Status with the United Nations. He is on UN Register as an Expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. Author could be reached at dr-nazirgilani@jkchr.com

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