Published On: Sun, Sep 9th, 2012

Pro Freedom leaders have a case to answer

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Dr. Syed Nazir Gilani,
Secretary General – JKCHR.

India and Pakistan in the best interests of their two people and in their Charter obligations as member nations of UN have to work for inclusive social development, environmental sustainability, inclusive economic development, peace and security and for more effective and stronger partnerships. Meeting of the two foreign ministers in Islamabad and concluding pro-people agreements, in particular agreeing on a liberalised visa regime is a welcome sign of not only a new beginning but is also a conscious effort to increment the constituency of public benefit. It leaves out the best interests of the four Kashmiris living under three administrations on either side of cease fire line (LoC) and the strong Diaspora spread all over the world. The principal interest so far has been the right of the people of Kashmir as ‘equal people’ to self-determination.

Mainstream political parties seem very clear in their discipline of political opinion. They stress better India-Pakistan relations as an important factor in the resolution of Kashmir dispute. In this regard some mainstream parties for reasons of power politics don’t dare to burn their fingers and chose to leave their political phrase vague. NC in particular has a stated position, in saying that Kashmir has a provisional accession with India but has not merged with Indian union like other States.

The pro-freedom parties over the years from July 31, 1993 when 31 political, social and religious organizations adopted to follow a Constitution have as a collateral to their political agenda lost a generation in Kashmir and witnessed the massive violations of human rights, never witnessed in Kashmir history from 1846-1990. Pro-Freedom camp has yet to spell out and break down the ‘Freedom’ phrase to include the best interests of all the four Kashmiris in the context of an independent state or accessions to either India or Pakistan. All that has emanated or at times emanates from pro-freedom camps (as they prefer to be called) is a request addressed to India and Pakistan to include not the leaders or people but the ‘genuine and true’ leaders of Kashmir in their talks.

The demand presupposes that there are ‘non-genuine and untrue’ people and leaders as well. Who would adjudicate and settle this dispute of ‘genuineness and trueness’ is not clear. Present shape or number of pro freedom political parties can’t sit in judgement in their own cause. It has to be a third party and the one in sight seems to be United Nations. It is important to point out that UN resolutions have set a test of “PRINCIPALITY” for the leadership in Kashmir. It is likely that most of the parties offering their credentials as pro freedoms political parties in Kashmir may or may not pass the test of “PRINCIPALITY”. In the event of a dispute on representations it would not only be India and Pakistan but all the member nations of UN who have a right to query the representative character of any political party in Kashmir. India and Pakistan accreditations or self-certification of the parties would not work.

In common political terms the demand for inclusion in India-Pakistan dialogue is an admission by the pro-freedom political parties that Kashmir is a bilateral dispute between India and Pakistan. This demand does not reconcile with objective 2 (i) and 2 (ii) listed in Chapter II of Hurriyat Constitution. Under objective 2 (i) Hurriyat has to “make peaceful struggle for the people of the State of Jammu and Kashmir”, in the exercise of “the right of self-determination in accordance with the UN Charter and the resolutions adopted by the UN Security Council”. According to this “the exercise of the right of self-determination shall also include the right to independence”.

Pro-freedom parties in objective 2 (iii) have taken upon to “project ongoing struggle, in the State before the Nations and governments of the world in its proper perspective as being a struggle directed against the forceable and fraudulent occupation of the State by India…”.

The wisdom of the Constitution does not accredit the juridical and territorial understanding of the Kashmir case. If India is to be treated as an occupying force outside the terms of its provisional agreement with the Government of Kashmir and outside the facts of its application made to the UN Security Council and final submissions made at the UN Security Council, use of force to undo this occupation becomes legitimate. Unfortunately pro freedom parties have misunderstood the option of the use of force. It had to be an international force under the authority of UN. The authors of a militant struggle in Kashmir failed to wisen themselves to the juridical character of the use of force in Kashmir. In fact they misdirected their wisdom and mismanaged their independence. It has caused the death of a generation and the death of self-determination for a long time to come. It does not mean that the authors of this script shall not have to face a criminal liability for two deaths, namely, death of a generation and the death of self-determination.

Pro-freedom parties would well be accused either of gross ignorance about the jurisprudence of the case or in a worse case of a scripted double standard. These parties have heavily relied upon the hospitality (at times exaggerated, disproportionate and discriminatory) of Pakistan. The country has a role as a member nation of UN and as a party to the dispute. Pro-freedom parties have continued to live with the double standard of ignoring the best interests of the Kashmiri people living in the two administrations under Pakistan control, namely, PaK and Gilgit and Baltistan and have avoided (for private and personal reasons) to question Pakistan and the Government of AJK to explain any progress made under the stated pledge made in the “The Azad Jammu & Kashmir Interim Constitution Act 1974”, that “future status of the Jammu and Kashmir is to be 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”.

There is no evidence since 1990 or even from before that Kashmiri leaders from the Valley in general (pre 1990) or Pro freedom parties in particular (post 1990) have ever asked Government of Pakistan to tabulate the discharge of its duties assumed under UNCIP resolutions in the affairs of PaK and Gilgit and Baltistan. On the contrary, Pakistani establishments have remained the secret hands to dislodge the provisional Governments of AJK established on October 4, 1947 and re-constituted on 24 October 1947. The all inclusive provisions of the provisional declaration of AJK Government were gradually written off and a colonial instrument of control in the form of Act 1974 was handed over by the Government of Pakistan to the President of AJK, with a masterly instruction stating, “in the discharge of its responsibilities under the UNCIP Resolutions, the Government of Pakistan has approved the proposed repeal and re-enactment of the said Azad Jammu and Kashmir Government Act 1970, and authorised the President of Azad Jammu and Kashmir to introduce the present Bill in the Legislative assembly of Azad Jammu and Kashmir for consideration and passage”.

The AJK Constitution is a compulsory direction from the Government of Pakistan. Such a colonial attitude and binding prescription is unrecognizable under UNCIP Resolutions. Article 4.4.7 in AJK Constitution does not allow a common citizen the full freedom of expression or association as endorsed by UN General Assembly for freedom of choice in an election. Non State Subjects (Pakistani nationals) have retained exclusive legislative and executive control in the area. Article 31 (3) and article 56 of the AJK Constitution seal its fate in favour of the establishment in Pakistan and pronounce the people living in AJK as colonial subjects.

Various governments in Pakistan have sussed out the lack of understanding of Kashmir case by Kashmiri leaders and their preparedness to continue with their double standard.  Duly encouraged Pakistan foreign minister has said “the aspirations of Kashmiri citizens must be accommodated.”  Pro-freedom leaders getting ready for their next visit to Pakistan have to explain, the climb down from a combined rhetoric of at least 22 years to a new position in 2012 of accommodating the aspirations of Kashmiri citizens. Pro-freedom leaders have addressed their request to India and Pakistan to include them in the talks and Pakistan on its part has proposed to India to see to it that aspirations of Kashmiri citizens are accommodated. Pro-freedom leaders have a case to answer.

Author is Secretary General – JKCHR, NGO in Special Consultative Status with the United Nations. He can be contacted at dr-nazirgilani@jkchr.org


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