Published On: Mon, Jun 24th, 2013

State Subjects only – Pakistani’s ineligible?

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By Dr. Syed Nazir Gilani –

Supreme Court of Pakistan in its decision on 21 June 2013 has declared that Provisional Collection of Taxes Act 1931 (introduced by British) is in violation of the fundamental rights as the citizens cannot be exploited under article 19 of the constitution. It declared unconstitutional the one per cent increase in general sales tax (GST) and has ordered immediate withdrawal of the hike.

Judiciary in PaK

Institutions, in particular the judiciary in Pakistan administered Kashmir invariably has copied the manner of administration of justice which remains prevalent in Pakistan. It has acted as a reflex of the judicial discipline in Pakistan and has never either had the courage or understanding that UNCIP Resolutions in PaK have the same force as Article 19 of the constitution of Pakistan.

Pakistani’s ineligible

On 20 June 2013, PaK High Court set aside PaK Council (chaired by Prime Minister of Pakistan) advertisement of November 11 and November 14, 2012, published in a national daily, inviting applications for various posts from the citizens of Pakistan and directed that the condition of (being a) ‘State Subject’ for the applicants should be incorporated in all advertisements. The full member bench, headed by Chief Justice Ghulam Mustafa Mughal, also directed the Council to amend the qualification entered in a January 3, 2008 notification of the AJK Council, allowing citizens of Pakistan along with the State Subjects of Jammu and Kashmir to apply for jobs in the institution and restrict it for State Subjects only.

A non-State Subject officer in the PaK Council has announced that High Court has no jurisdiction to make such a stipulation and PaK Council would challenge the decision in the Supreme Court of Pakistan administered Kashmir. It remains to be seen whether the judiciary in Azad Kashmir protects the interests of the citizens of the State or offers itself to ‘his master’ as happened in Gilgit and Baltistan case in March 1993.

Gilgit Baltistan Case

The first decision of this nature was made by chief justice High Court justice Abdul Majeed Mallick in the Gilgit Baltistan Case. In this judgement the Court had directed “the Azad Government to immediately assume the administrative control of the Northern Area and to annex it with the administration of Azad Jammu and Kashmir”. The Court had made other directions as well. Unfortunately, the Supreme Court of PaK at variance to its duty in the administration of justice to the citizens of the State of Jammu and Kashmir suspended the order and granted a relief to the interested parties on a poorly considered technicality.

Winds of change have started touching the institutional practices in Azad Kashmir. However, an overwhelming belief that compliance with the dictates from Islamabad is the best option rules the day to day life in Azad Kashmir. Therefore, the aggregate response of the institutions in Azad Kashmir to acquiesce to the pressures continues to surprise.

Not a communal Government

So much so that a casual examination of the Government and its institutions reveals a serious double stepping. The Government of Azad Kashmir was first formed on 4 October 1947 and re-constituted on 24 October 1947.  The Declaration of this Government states that, “The Provisional Government, which is assuming the administration of the State is most emphatically not a communal Government. It will include Muslims as well as non-Muslims in the provisional Cabinet which will serve the people, the temporary purpose of restoring law and order in the State and enable the people to elect by their free vote a popular legislature and a popular Government”.

The other most important feature of the Government was that, “The Provisional Government entertain sentiments of the utmost friendliness and goodwill towards its neighbouring Dominions of India and Pakistan and hopes that both the Dominions will sympathise with the people of Jammu and Kashmir in their efforts to exercise their birth right of political freedom. The Provisional Government is further anxious to safeguard the identity of Jammu and Kashmir as political entity”. [Published in Civil and Military Gazette October 1947].

Free vote, a popular legislature and a popular Government

Today in 2013 PaK people don’t have free vote, a popular legislature and a popular Government. Under article 4.7.2 of Interim Constitution Act 1974 the Government restrains that, “No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to the ideology of the State’s accession to Pakistan”. Courts in Pakistan administered Kashmir are not touched by the winds of change in Pakistan and don’t consider that Laws violative of fundamental rights can be stricken off. State Subject is a fundamental inherent right of a Kashmiri and any violation of it should attract the Suo Moto action of the Court.

It is important to state that Act 1974 has been authored by Government of Pakistan and Government of Pakistan has authorised the President of PaK to introduce the Bill in the PaK Assembly for consideration and passage. UNCIP Resolutions as claimed in the Preamble of Act 1974 don’t provide any authority to Government of Pakistan to author a Constitution for the People of PaK. The fact remains that UNCIP Resolutions provide a mechanism of Governance for all the three administrations of Jammu and Kashmir.

President sub-ordinate officer

President of PaK under Act 1970 is elected under article 3 and under Act 1974 under article 5. The question remains is the President of AJK a sub-ordinate officer of the Government of Pakistan, that he is authorised  by the Government of Pakistan to present a document in the form of Act 1974 authored by it.  Act 1974 is authored by the Government of Pakistan and it instructs and authorises the President of PaK. A reference to President of PaK in this manner speaks volumes about the merits of President’s office. He has been identified as a ‘ROUTER’ and as a sub-ordinate of the Government of Pakistan.

Empowerment of PaK People

A civil society institution The Association for the Rights of the people of Jammu and Kashmir (ARJK) head by retired chief justice, Justice Manzoor Gilani and some political leaders are campaigning for amendments in the Interim Constitution Act 1974 and seeking representation in the Federal institution in Pakistan. The campaign is flawed in its wisdom at core.  The first and most important step in seeking the Empowerment of PaK People is to question the merits of Act 1974 and examine if Government of Pakistan has any power under UNCIP Resolutions to author Act 1974 in the present manner and again if Government of Pakistan has any power to designate the President of PaK as a sub ordinate officer to carry out their instructions.

Surrendering the Sovereignty

It is a serious matter. Under the Principle of “Equality” and Title to “Self-Determination”, a State Subject as an aggrieved person could revert back to UN to find out whether Government of Pakistan has any authority under UNCIP Resolutions to conduct itself in the manner of Act 1974. One can’t seek amendments to an Act if it is Ultra Vires and extraneous to the Principles of jurisprudence. The Act 1974 has no merit in Law, in particular under UNCIP Resolutions. It is a Colonial dictate.

Justice Gilani’s NGO ARJK in Objective (a) submits itself to the jurisprudence of UNCIP Resolutions. He and others should challenge the Act at core. Seeking any amendments is surrendering the Sovereignty that inheres in a State Subjects in respect of Self Determination. UNCIP Resolutions in PaK have the same force as Article 19 of the constitution of Pakistan.

Author is London based Secretary General 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. He could be reached on email dr-nazirgilani@jkchr.com


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