Published On: Tue, Oct 13th, 2015

Demilitarization and Kashmiri leadership

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By Dr. Syed Nazir Gilani –

If anything has gone seriously wrong in Jammu and Kashmir on the right of self-determination (internal and external) in addition to the continued engagement and disengagement of India and Pakistan, it is the manner of narrative and unreliable understanding of the issue by political parties represented in Hurriyat as on 31 July 1993 (today it is fragmented) and the mainstream political parties. If India and Pakistan were able to engage on the issue, it should not have been a taboo for Kashmiri political parties of the two disciplines to administer a consensus that the State had not merged into the union of India and a reference to people was still pending at the United Nations.

Jammu and Kashmir High Court decision in the case of Magher Singh Vs Principal Secretary, J & K Government decided by Janki Nath Wazir chief justice and justice Shahmiri in March 1953 (A I R 1953 J and K 25, Volume 40, C.N.17) and now after 62 years down the line on 10 October 2015 the decision of the division bench of the High Court comprising of Justice Hasnain Masoodi and Justice Janak Raj Kotwal have held that the State of Jammu and Kashmir continues to enjoy residual internal sovereignty. Government of India has also pleaded for the internal sovereignty of the people and the Government of Jammu and Kashmir, securing a representative role for it under the UN Security Council Resolutions.

Prime Minister of Pakistan has proposed demilitarization as one but an important step in his four point proposal to India. Once again the two Kashmiri political disciplines, in particular Hurriyat as represented in July 1993 have restrained its interest to a statement. There is a need that Hurriyat and non Hurriyat political parties forge a unity of plan and take a step further to their routine pronouncements. Equipped with the UN Resolutions on Kashmir, two High court Decisions, State autonomy report of July 2000 and the Pakistan proposal for demilitarization made at the 70th session of UN General Assembly, Kashmiri leadership should update its manner of engagement.

As a start it should assist its people to live a normal life, question the Indian army on a regular basis in the public and in the courts in accordance with its four duties accepted in the letter of accession and further bound by the reality check set under the UN Resolution on its number, behaviour and location. A reality check on the Indian army should be a common concern of all political disciplines.

Proposal of demilitarization is a welcome. India and Pakistan have a duty to demilitarize the State to allow its people to take a decision on their future.  It was at the 611th meeting of the Security Council on 23 December that a Resolution on demilitarization was adopted. The resolution urged: “…the Governments of India and Pakistan to enter into immediate negotiations under the auspices of the United Nations Representative for India and Pakistan in order to reach agreement on the specific number of forces to remain on each side of the cease fire line at the end of the period of demilitarization, this number to be between 3,000 and 6,000 armed forces remaining on the Pakistan side of the cease fire line and between 12,000 and 18,000 armed forces remaining on the Indian side of the cease fire line” [S/2883]. Government of Pakistan accepted the resolution and the Government of India rejected it.

The question is whether Government of India could continue to force its army on the people of Jammu and Kashmir (part of Kashmir) against the four duties accepted in the October 1947 letter of accession and as described in UN Security Council Resolution of April 1948. The first agreement is between the Government of Srinagar and the Government of Delhi and the former could seek a pull-out from this agreement or a seek a recourse to a Court or the Government of Pakistan could help the people of Kashmir to take the matter to International Court of Justice.

Pakistan has a constituency in all the three administrations of the State and in the Kashmiri Diaspora. It has a higher burden of responsibility in the matter, first starting from urgency. It was in January 1948 that Pakistan urged the United Nations that a Plebiscite has to be organized by the Spring that is in three months’ time in March 1948. Indian Government also pleaded for expedition, urgency and immediacy at the UN Security Council in the resolution of Kashmir dispute in January 1948.

Indian Government also pleaded for ‘the sovereign powers exercisable in the State by the Jammu and Kashmir Government’. As a consequence a duty under the UN mechanism on Kashmir was outsourced to J & K Government at Srinagar. As a first step a fully representative provisional Government had to replace the existing administration and a Plebiscite Administrator had to be appointed by the end of April 1954.  Kashmiri leadership failed to force the Government at Srinagar to discharge a duty under the UN Resolutions and appoint a Plebiscite Administrator. It further failed to highlight the failures of Srinagar Government to its own people and before the international community. Pakistan could have been the effective medium and advocate.

Politics in Kashmir has continued to wander in the wilderness of unreliable understanding and non-knowledge of their case. It has failed to enlarge its constituency of sympathy and support in accordance with the jurisprudence of Kashmir case. It was this lack of knowledge that Kashmiri leadership failed to remind Pakistan to raise Kashmir at the UN for 31 years from November 1965 to August 1996. Thanks again to a simplification process at the UN Security Council that found the 31-year-long lapse on Kashmir.

Kashmiri leaders have to arrest the practice of fragmentation and force a unity on the basics that Government of Srinagar and Government of India have failed to do as required. Keeping Pakistan in the equation, our leaders need to take recourse to domestic remedies through courts on these issues, importantly, demilitarization by India as provided under UN resolutions and as proposed by Pakistan at the 70th session of UN General Assembly. Indian security forces need to be forced to return to four basic duties, that remain the basis of their temporary admittance into the part of the State administered at Srinagar. If India continues to drag feet on the question of demilitarization, a State wide awareness campaign needs to be launched, State Government needs to be taken to Court as party to the admittance of these forces into the Valley and at the same time Government of Pakistan could be counselled or any other UN member State encouraged to take the matter to International Court of Justice.

Kashmiri Diaspora in co-operation with State Subjects living under the three administrations at Srinagar, Muzaffarabad and Gilgit and genuine people in the three Governments, could shortlist the countries that have remained very active and understanding during the UN Security Council debates on Kashmir. In addition to Pakistan, United States of America, United Kingdom, China and Australia have played a pro-active role in supporting the right of self-determination. In his telegram dated 22 November 1947, Prime Minister of United Kingdom had proposed to Prime Minister of Pakistan that if he agreed he could explore the option of referring the Kashmir matter to International Court of Justice. United Kingdom continues its interest in seeking good relations between India and Pakistan. It could be involved more robustly to rekindle its interest in ICJ option to seek demilitarization as reiterated by Pakistan.

United States of America has also played a lead role in defining the boundaries of a bilateral engagement in the resolution of Kashmir dispute. United States has at the 607 meeting of the UN Security Council on 5 December 1952 stated that, “we welcome any agreement which the parties themselves can reach on any basis which will settle the dispute, provided of course that the basis is consistent with the principles of the Charter of the United Nations”. Therefore all efforts by India to seek to avoid UN interest in Kashmir have no merit. All bilateral proposals have to meet the test of being in accordance with principles of the Charter of the United Nations.

It is time that the people of Kashmiri engage Pakistan and also make individual efforts to revive Chinese interest as China had expressed in her Articles of Settlement placed before the UN Security Council on 18 March 1948 for the resolution of Kashmir dispute. Progressive withdrawal of Indian troops from Jammu and Kashmir was the first ingredient of the proposal. Australia as back as at 765th meeting of the UN Security Council on 24 January 1957, challenged India and queried the legitimacy of the ‘deliberations of the Kashmir Constituent Assembly” and warned India that, “…the Council has, in its past resolutions, laid down certain basic steps that should be taken towards a solution, steps which were firmly founded upon the principles of the Charter of the United Nations”. This position has been restated by the J & K High Court on 10 October 2015.

Government of Pakistan has reiterated its position at the UN General Assembly, in the manner it has stated at the 766th meeting of UN Security Council on 30 January 1957 that, “The only international obligations which the Governments of India and Pakistan have undertaken in regard to Kashmir dispute are embodied in the two resolutions of the United Nations Commission dated 13 August 1948 (S/1100, para 75) and 5 January 1949 (S/1196 para 15). I submit that it is now the duty of the Security Council to ensure that this international agreement is implemented without any further delay”. We need to support Pakistan and seek support from other capitals for an early demilitarization.

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