Dr. Syed Nazir Gilani
There is an ongoing debate on the manner of responsibilities of the Government of Azad Kashmir and on the manner of responsibilities of the Government of Pakistan in regard to the preparations at home and advocacy abroad leading to the UN supervised Plebiscite in the State of Jammu and Kashmir.
Under the Karachi Agreement of April 1949 and the Constitution Act 1974 of Azad Jammu and Kashmir the negotiations with UNCIP and the foreign policy of Azad Kashmir Government are retained as a responsibility by the Government of Pakistan. The advice to the Government of Pakistan with regard to negotiations with UNCIP is the responsibility of The Azad Kashmir Government.
Publicity with regard to plebiscite in Azad Kashmir, field work in the Indian occupied area of the State, organization of political activities in Azad Kashmir and Indian occupied areas of the State, preliminary arrangements in connection with plebiscite and advice to Government of Pakistan with regard to negotiations with the UNCIP have all been allocated to the political discipline in Azad Kashmir.
Since the Act 1970 and Act 1974 Government of Azad Kashmir has a constitutional duty to appoint a Plebiscite Advisor (to set up an institution) to advise it in regard to the Plebiscite. It could negotiate with the Government of Pakistan to further enlarge and perfect its share of responsibilities. On the question of a UN supervised Plebiscite, the Government of Azad Kashmir has neither discharged the duties under the Act 1970 and Act 1974 nor made any serious effort to negotiate with the Government of Pakistan.
In theory all Governments in Azad Kashmir love the people living under the India occupation and their expressed concerns on the loss of life have no merit. The Edhi Foundation has been doing a better job towards the dead and towards their families in various parts of Pakistan.
After the unlawful Indian action of 5 August 2019 both Governments at Muzaffarabad and Islamabad should have swung into a broad spread of activities. I would wish to skip any comments in that regard in this piece, for reasons to encourage an effort made by The Senate Standing Committee on Foreign Affairs on Kashmir. It has called an in-camera meeting on 27 January 2021 to discuss “Human Rights violations by India in the Indian Occupied Kashmir, especially cases of Asiya Andrabi, Yasin Malik and many others; Pakistan’s strategy to highlight plight of the Kashmiri people globally”. The meeting would be a day after when India would have celebrated her Republic Day and the People of Jammu and Kashmir, would have observed it as a “Black Day”.
Let us wait and see what comes out of this 14 member Senate Standing Committee on Foreign Affairs meeting chaired by Senator Mushahid Hussain Sayed. I have interfaced with Senator Mushahid Hussain Sayed when he was editor of Daily Muslim Islamabad and at the UN Commission for Human Rights, when he led the Pakistan’s delegation to the UN in Geneva in early 1990s. His lively spirit and sense of responsibility prevailed throughout the session.
Senate Standing Committee on Foreign Affairs in its consideration of Human Rights situation and the cases of prisoners, has to proceed on strict technical grounds. Under article 5 of UDHR “No one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment.” Article 10 (1) of ICPR states that “All persons deprived of their liberty shall be treated with humanity and with respect for inherent dignity of the human person.” India has taken 3 women as prisoners as well.
JKCHR has delivered a representation to the Senate Standing Committee on Foreign Affairs and has suggest that the Committee connects its deliberations and decisions, with the Rights guaranteed in the UN SC Resolutions (in particular on Prisoners) and with the 4 JKCHR documents on Kashmiri Prisoners received by the UN Secretary General and released as UN General Assembly Documents at the 36th, 37th, 39th and 41st sessions of the UN Human Rights Council in Geneva. The question of all prisoners and the cases of Yasin Malik, Asiya Andrabi and Shabir Shah have been taken up in these documents.
UN SC Resolutions have restrained the Indian role to assist and aid the civil authorities in Kashmir. UN SC Resolution 47 of 21 April 1948 guarantees rights and embeds a wisdom that India could not take a Kashmiri as a prisoner. On the contrary UN SC has charged India with a duty to ensure that the Government of the “State” releases all political prisoners and further charges India with three most important duties.
It is highly desirable that while considering the “Pakistan’s strategy to highlight plight of the Kashmiri people globally”, the committee should consider as a counter move in favour of Kashmiri refugees referred in Para 14 (a) of Resolution 47 of 21 April 1948. Para 14 (a) of Resolution 47 of 21 April 1948, protects the right of return of 2.5 million Kashmiri refugees living in the 4 provinces of Pakistan and the chunk in the Diaspora which is spread all over the world. India cannot DE platform, disenfranchise and disinherit them.
The Senate Standing Committee on Foreign Affairs could benefit from a paper titled ‘Four Generations of Victims in Kashmir’, presented at the 8th International Symposium on “Victimisation and Violence: Strategies for Survival” in Adelaide – Australia in August 1994. The paper has been published in the 1993-94 International Debates of Victimology – Volume WSVN. It could benefit from the details of the ‘Round Table Conference’ organised by JKCHR on the rights of 2 million displaced Kashmiris in Islamabad on 16 February 1996. .
UN SC Resolutions have created a broad spread of jurisprudence in our favour and most important of it is the “Positive Duty” of UN SC, the jurisdiction of UN SC and that “pending the holding of a plebiscite, neither India nor Pakistan can claim sovereignty over the State of Jammu and Kashmir”. While considering the “Foreign policy challenges in 2021” the Committee should bear in mind the Indian non-compliance.
In regard to non-compliance or a violation UN SC has said that “The party that would dare to violate an agreement thus reached would load upon itself a very grave offence against the other party, against the United Nations, and against the right of the people of Jammu and Kashmir to self-determination, a right which, in other contexts, both parties have so often and so eloquently defended.” (Netherlands 611 Meeting of SC held on 23 December 1952). On 5 August 2019 India of course has loaded upon itself a very grave offence”. We have to argue the Indian offence.
UN has always supported the cause of the people of Jammu and Kashmir. UNMOGIP chief General Passolano was given a special clearance by UN Headquarters in New York to fly from Srinagar and meet the JKCHR Secretary General (author) in Rawalpindi on 01 October 1996. The meeting lasted for 3 hours. Faith moves the mountains. The question remains, whether we have faith in our mission to vacate the Indian aggression of 5 August 2019 and are prepared to take proportionate and pointed actions? Kashmir Committee also had an in-camera meeting on 31 January 2020. Now it is the Senate Standing Committee on Foreign Affairs that is due to meet in-camera on 27 January 2021. We pray that it is able to set correctly the compass of its strategy for 2021. Shelley has very rightly said, “If winter comes! Can spring be far behind”? The winter has to yield to the spring.
The author is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.