PAKISTAN OCCUPIED KASHMIR (SO-CALLED "AZAD KASHMIR")
In terms of territory, the area of the state of Jammu and Kashmir is 222,236sq kilometers while the area illegally occupied by Pakistan is 78,114 sq.kilometers.
The areas occupied by Pakistan comprise so-called "Azad Kashmir"(referred to hereafter as POK for Pakistan Occupied Kashmir) and the NorthernAreas of Gilgit, Baltistan and Hunza, etc.
Pakistan does not trust theadministration of POK to handle the Northern Areas which Islamabad considersstrategically vital. The Northern Areas which have been incorporated intoPakistan, are five times the size of the area designated as ‘Azad Kashmir’.
As a constitutional enigma POK is unique. It has been given the trappings ofa country with a President, a Prime Minister and a Legislature of its own. ButPOK is neither a country nor even a province.
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From the time of the Karachi Agreement (April 28, 1949) the POK President andthe Prime Minister have enjoyed only titular power. The Karachi Agreementbetween Pakistan, POK and the Muslim Conference handed over matters related todefence, foreign policy, negotiations with the then UN Commission for India andPakistan (UNCIP) and co-ordination of all affairs relating to Gilgit and Ladakhareas to Pakistan. Residual powers were kept vague.
Pakistan retained control ofthe following subjects :
- defence
- ‘foreign policy’ of POK
- rehabilitation of refugees and
- control over all affairs of Gilgit and Ladakh.
The POK government was saddled with overseeing:
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- policy with regard to administration
- general supervision of administration, and
- publicity of its own activities. The charter of the Muslim Conference was restricted to publicity on the plebiscite and ‘general guidance of the POK government’. The Karachi Agreement was a landmark in that it sought to institutionalise Kashmiri subservience to Pakistan and put POK in its place.
It was the Chief Plebiscite Officer of the Pakistan Government who controlledall the levers of power in the initial stages. On the ground, the power vestedin the officers deputed by Pakistan’s government to POK.
The Chief Plebiscite Officer was notified as the Chief Advisor to theGovernment of Pakistan, ex officio. He was a Joint Secretary in theCentral Government but in actual terms right from 1949 to 1968, he was the defacto ruler of POK. He owed nothing to the POK Government as he wasappointed by the Ministry of Kashmir Affairs, which was formed in 1952 under thegeneral supervision of the Home Ministry. In 1963 Ayub Khan transferred it tohis Presidential Secretariat.
When Gen. Ayub Khan took power and unseated President Iskander Mirza,political activities in POK were banned. Once Ayub felt confident enough torelease the pressure of the army’s stranglehold on Pakistan, he conceived theidea of ‘Basic Democracies’. This system was more in tune with colonialthinking and practice, providing that only people who fulfilled certain criterialike basic education, or income levels, should be allowed to exercise theirfranchise. The Basic Democracies were extended to the POK in 1960 through theAzad J&K Basic Democracies Act.
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For the first time, the POK President and the POK Council were to be elected,through the indirect means of ‘Basic Democracies’. The Council remained amere advisory body. The President was elected in 1961 through an electoralcollege of 1200 indirectly elected basic Democrats in POK and another 1200 whorepresented Kashmiri refugees in Pakistan. K.H.Khurshid, was the first Presidentof POK and was dismissed in 1964 because he began asserting himself. He wantedPOK to be a party to the Indus Waters Treaty, a treaty which he clearly opposed.
The Outlook of Karachi wrote on August 14, 1964: "Theuncomfortable truth is that the Ministry of Kashmir Affairs has acquired avested interest of its own. It treats ‘Azad Kashmir’ territory andGilgit-Balistan areas as its own domain which a Joint Secretary controls asChief Advisor. His overlordship is supreme and without such checks and balancesas are applicable to areas of Pakistan. The possibility of friction between the‘Azad Kashmir’ government and the Ministry of Kashmir Affairs has alwaysbeen there. The Ministry likes to deal with puppets, not with the Presidents whotake their position too literally".
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In 1968, an attempt was made to soft-pedal POK for a while. Some cosmeticreforms were introduced abolishing "the practice whereby the Presidents ofAzad Kashmir were selected, in effect, by the Minister of Kashmir Affairs. Infuture they would be chosen by a State Council of twelve individuals, eightelected directly through Basic Democracies, and four nominated by the Presidentof Pakistan.
A new Interim Constitution of POK was promulgated on November 5, 1975 duringthe time of Zulfiqar Ali Bhutto, which made the Prime Minister the executivehead instead of the President of POK. As a result of this, a 13-member AzadJ&K Council was formed, with the Pakistan Prime Minister as Chairman and thePOK President as Vice-Chairman. Islamabad could nominate six members to theCouncil who had to be either Pakistani Federal Ministers or Members of the PakNational Assembly. The Chairman, along with these six federal nominees, gave theGovernment of Pakistan a majority in the Council.
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Along with this constitution, the Presidential Election Bill was also passedon August 25, 1974 providing for the direct election of the President throughadult franchise, and of the PM by a majority in the Assembly. Later there was aswitch, through an amendment, which envisaged that the PM was to be the head ofthe executive in place of the President.
Power, however, still rested with the officials of Pakistan, and the Ministryof Kashmir Affairs in Islamabad with regard to all legislation and appointments,questions of general policy, budget, internal security, matters involving heavyfinancial commitment, public debts and loans, taxes and important mattersrelating to civil supplies.
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General Zia-ul-Haq dissolved the POK Legislative Assembly on August 10, 1977.On July 31, 1979, Zia issued a martial law order suspending all politicalactivities in POK. Political activity in POK remained suspended till June 17,1985 when Sikandar Hayat took over as Prime Minister and Abdul Qayyum took overas President after an election, restricted only to ‘registered’ parties,thus disqualifying the Pakistan People’s Party (PPP).
For POK, self determination, as inscribed in the constitution, relates to theultimate accession of Jammu and Kashmir to Pakistan. Part 2 of Section 7 of thePOK Constitution states: "No person or political party in Azad Jammu andKashmir shall be permitted to propagate against, or take part in activitiesprejudicial or detrimental to, the ideology of the State’s accession toPakistan".
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Under Section 5(2) (vii) of the POK Legislative Assembly Election Ordinance1970, a person would be disqualified for propagating any opinion or action inany manner prejudicial to the ideology of Pakistan, the ideology of State’saccession to Pakistan or the sovereignty and integrity of Pakistan. The samecaveat applies to anyone who "defames or brings into ridicule the judiciaryof AJK of Pakistan or the Armed Forces of Pakistan".
In the 1996 elections in POK parties and candidates who wished to participateon the platform of independence and refused to sign the declaration callingPOK’s accession to Pakistan an article of faith, were denied the right tofield candidates.
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In the recent elections, again, the same situation haspersisted with JKLF and others protesting but to no avail. Recently, the JKLFleader Amanullah Khan has been arrested for protesting against not being allowedto contest.
While guaranteeing freedom of speech, Article 9 of the POK Constitution,imposes "reasonable restrictions in the interests of the security of AJK(which is neither Azad nor Jammu nor Kashmir) and friendly relations with Pakistan". The oath of office for thePresident, PM, Minister, Speaker, MLA or MLC of POK clearly includes thefollowing clause: "That I will remain loyal to the country and the cause ofaccession of the state of Jammu and Kashmir to Pakistan".
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Section 56 of the Constitution gives the Pakistan Government all the rights.Nothing shall "prevent the Government of Pakistan from taking such actionas it may consider necessary or expedient for the effective discharge of thoseresponsibilities". The responsibilities are defined under Section 31 andinclude UNCIP resolutions, defence and security of POK, currency and issue billsand the external affairs of POK. Islamabad has the right to dismiss the POKGovernment under this clause.
The events in and political configuration of POK during the earlier regimesin Pakistan show that:
- POK was devoid of franchise till 1960, since no election was held till then;
- From 1960 to 1975 the only elections held were indirect, through the ‘Basic Democracies’ of Ayub Khan;
- POK has been effectively governed through the Ministry of Kashmir Affairs in Islamabad and through a Chief Advisor of the rank of a Joint Secretary;
- Since Bhutto’s Constitution in 1974, the main executive authority in POK rests with the Council of which the Pakistan PM is the Chairman and which he dominates with his six nominees; and
- Each executive head of Pakistan, be it General Ayub Khan, President and then Prime Minister Bhutto or General Zia, did exactly what he wanted in POK, brought in martial law or the form of government which he desired, suspended political activities when he chose, and sacked the President/Prime Minister he disliked. The latest victim was Prime Minister Mumtaz Rathore, who was dismissed, arrested and flown by helicopter to a Pakistani prison in 1991. After the elections in June 1996, the President of POK, Sikander Hayat Khan, was removed through a voice vote in the Assembly.
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The Northern Areas have no status. They are neither a province of Pakistan nor a part of "Azad Kashmir". They are ruled directly from Islamabad through a Northern Areas Council which is headed by Pakistan’s Minister for Kashmir Affairs. A chief executive, normally a retired Pakistani army officer, appointed by Islamabad is the local administrative head. The Northern Areas Council is headed by the Minister of Kashmir and Northern Areas and meets only when the minister convenes it.
This mountain outback has been split into five districts, viz. Gilgit, Skardu, Diamir, Ghizer and Ghanche. Its population of 1.5 million inhabits a vast area of 72,495 sq. kms. Sparsely populated as the area is, the ethnic groups are varied - Baltees, Shinas, Vashkuns, Mughals, Kashmiris, Pathans, Ladhakhis and Turks. It numbers many languages like Balti, Shina, Brushaski, Khawer, Wakhi, Turki, Tibeti, Pushto and Urdu.
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The Northern Areas are a story of deprivation of a people and their land devoid of any development and denial of basic fundamental rights. There is no adult franchise, no assembly and the people have never participated in an election or sent representatives to the National Assembly. The prestigious Pakistani magazine the ‘Herald’ has termed the Northern Areas "The Last Colony".
The literacy rate is 14 per cent for males and 3.5 per cent for women! There is just one doctor for 6,000 people. Piped water supply is non-existant. So is electricity for more than two thirds of the population of the area. Except for some brick kilns there is no ‘industry’ in the area. An area of 72,495 sq. kms. had in 1993, according to the Pakistan daily, ‘Muslim’, (December 13, 1993), mettled roads extending merely to 162 kms.
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There are only two colleges in the area. There is not a single polytechnic in this seventy thousand square kilometer land. The only paper K2 carries on its mast head the legend "Voice of a constitutionless land". There is no radio or TV station.
Seeing no economic prospects in Pakistan, the Mirpuris who inhabit POK migrated in large numbers to the countries of the West. But the people from the Northern Areas are not even afforded this concession. They need an exit visa for going abroad, which is given only in the rarest of cases.
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The reason why the Northern Areas have been kept by Pakistan in its own bear-hug is unilateral ceding of an area 2,700 sq. miles to the Chinese through an agreement on March 2, 1963. The entire area belonging to Hunza, south of the Mintaka Pass, was handed over to the Chinese. The border agreement which related to the alignment of the entire boundary line between China’s Sinkiang and the contiguous areas under the actual control of Pakistan was ceded: "The two parties have agreed that after the settlement of the Kashmir dispute between India and Pakistan the sovereign authority concerned will reopen negotiations with the government of the People’s Republic of China on the boundary as described in Article II of the present agreement of Kashmir so as to sign a boundary treaty to replace the present agreement ......"
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Had the Northern Areas had an elected assembly of their own, the above issues would surely have been discussed in the legislature there as well.
The Northern Areas have remained deprived of a High Court and of the facility of writ petitions against arbitrary State action. Even a death sentence is confirmed by the court of Judicial Commissioner. The Gilgiti cannot appeal to the Supreme Court. The Northern Areas have not had the benefit of any legislature or legislative representation for decades. Under Dogra rule, members from Gilgit and Baltistan were represented in the State Assembly.
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None of the constitutions of Pakistan, adopted in 1956, 1962, 1972 and 1973 - recognised that Northern Areas are part of the Pakistan territories. Conversely, the 1974 Interim Constitution of POK also did not include Gilgit and Baltistan. This resulted in the passing of the ‘Legal Framework Order’ which placed the Northern Areas under the total control of the Kashmir Affairs Ministry. In 1982 General Zia ul Haq proclaimed that the people of the Northern Areas were Pakistanis and had nothing to do with the State of Jammu and Kashmir.
A writ petition under Section 44 of the POK Interim Constitution Act of 1974 was filed by some residents of the Northern Areas. They jointly invoked the writ jurisdiction of the POK High Court claiming that the petitioners were bonafide citizens of the State of Jammu and Kashmir and hence eligible to approach the court for redress. They challenged the Pakistani view that the Northern Areas were not a part of Kashmir but were a part of Pakistan. They also contended that even the Sino-Pakistan Agreement of 1963 conceded that the Northern Areas were a part of the State of J&K. The Government of Pakistan took the specious plea that the Government of Pakistan "was not functioning or operating within the territory of Azad Jammu & Kashmir (and) as such it was not amenable to the jurisdiction of this court". Pakistan also denied the well-known Karachi Agreement of April 28, 1949 "whereby the administrative control of Northern Areas was delivered to the Government of Pakistan". The high Court of POK however decided that the so-called Northern Areas were a part of POK. Pakistan, of course, never implemented the POK High Court decision and had it vacated by the Supreme Court of POK which said that the POK High Court had no jurisdiction to issue any order giving the Northern Areas to POK.
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In another case when the Al Jihad Trust and others filed a petition before the Supreme Court of Pakistan demanding that fundamental rights be accorded to them including representation in the Federal Legislatures and the right of self-determination, the Government of Pakistan held that the Supreme Court of Pakistan had no jurisdiction since the Northern Areas were not, in terms of Pakistan’s constitution, a part of Pakistan.
No political activity is permitted. Some political parties like the United Jammu and Kashmir People’s National Party and the Balawaristan National Front and others have been raising the slogan of self determination only to see their demonstrations crushed and their leaders arrested. Demonstrations by students in Gilgit seeking employment have been crushed brutally. The Gilgit Baltistan United Action Forum for Self Rule has been demanding the right to self-rule under the UNCIP resolutions on Gilgit and Baltistan.
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(Primary Source: Embassy of India, Washington D.C., USA)
