The writer is a former member of the Pakistan Foreign Service.
In hearing a case challenging the appointment of the chief justice of the Azad Kashmir Supreme Court, the Supreme Court of Pakistan on July 2 sought written statements from the Pakistan government and the prime minister, in his capacity as chairman of the Azad Kashmir Council, on whether or not the Supreme Court of Pakistan has jurisdiction over the affairs of Azad Kashmir. The petition has been filed by a judge of the AJK Supreme Court, Justice Manzoor Gilani.
The attorney general said at the hearing that if the jurisdiction of the Supreme Court was admitted, it would damage Pakistan's long-standing principled stand on Kashmir. He also said, "AJK is a sovereign state and it has its own president, prime minister, legislative assembly and speaker. Therefore the apex court cannot interfere in its affairs." (The assertion that AJK is a sovereign state has never been made previously by the Pakistan government in any international or domestic forum. It is also inconsistent with the interim constitution of AJK, passed with the approval of the Pakistan government, which states that the defence and external affairs of Azad Kashmir are the responsibility of Pakistan.)
The representative of the AJK Council at the hearing took a very different position. The Supreme Court, he said, had complete jurisdiction over the affairs of AJK. He supported his claim by pointing out that the United Nations' Commission for India and Pakistan (UNCIP) had handed over the executive authority of AJK to Pakistan.
The contradictory positions taken by the representatives of the Pakistan government and of the AJK Council, both of which are headed by the prime minister of Pakistan, can be put down largely to bureaucratic incompetence but they are also an illustration of the lack of clarity over the constitutional status of Kashmir.
There is ambiguity not only with regard to AJK but also the Northern Areas. Under the Karachi Agreement signed in April 1949 by the Pakistan and AJK Governments, the administration of Gilgit and Ladakh (i.e. Baltistan, which was part of Ladakh under Dogra rule) was separated from that of AJK and assumed entirely by the Pakistan Government. Nevertheless, Pakistan by and large continued to treat the Northern Areas as part of Jammu and Kashmir.
But there are also instances of official acts and statements of the Pakistani authorities indicating that Northern Areas are not considered part of Jammu and Kashmir or are on the way to being integrated with Pakistan. For instance, in 1982 Ziaul Haq appointed three observers from the Northern Areas – but none from AJK – to the nominated Majlis-e-Shura. Also, in a letter to Baroness Nicholson, European Parliament's Rapporteur for Kashmir in 2007, the Pakistan Ambassador at Brussels wrote: "The whole of Northern Areas, which include Gilgit Agency and Baltistan Agency, was not a part of Jammu and Kashmir state in August 1947."
Moreover, Surveys of Pakistan maps, including those which appear on the Foreign Ministry's website, make a distinction even between the two parts of Northern Areas. These maps only show Baltistan (together with AJK), but not Gilgit, as part of the disputed territory of Kashmir. Gilgit is separated from Kashmir by a dotted line which the accompanying legend reserves for provincial boundaries and which also divides the State from Punjab and the NWFP. This virtually equates Gilgit with a province of Pakistan, while leaving Baltistan as disputed territory.
The takeover of the administration of Northern Areas by the Pakistan government has in recent years been questioned by some sections of the local population demanding greater autonomy and the Pakistan government is currently considering measures for devolution of more powers to the local representatives. Also there are some in AJK who would like to see the Northern Areas merged with Azad Kashmir. Reflecting this view, in 1972 the AJK Legislative Assembly passed a resolution demanding the "return" of the Northern Areas.
Pakistan's constitution is completely silent on Kashmir's present status. Article 257, which is a reproduction of identical provisions in the 1956 and 1962 constitutions, deals only with the future status of the state and reads as follows: "When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that state shall be determined in accordance with the wishes of the people of that state."
There are two main reasons why Pakistan has taken no steps to remove the ambiguities in its position on the constitutional status of Kashmir. First, Pakistan would not like to do anything that could compromise its demand for a plebiscite in accordance with UN resolutions. It has therefore been careful to refrain from actions that could lay it open to the charge that it had altered the basic conditions under which those resolutions were adopted and by doing so impeded their implementation. Second, Pakistan has been cautious not to take steps that could imply that it accepts the current territorial status quo dividing the state into two parts as a permanent solution.
The constitutional limbo in which AJK and even more so the Northern Areas find themselves as a result of these legal lacunas is bad enough in itself. What makes it no longer unacceptable is that it has hampered their political and constitutional development for more than six decades. The people of the Northern Areas lack representative government and access to courts for the effective enforcement of their fundamental rights. In AJK, democratic government is circumscribed by outdated constraints. The people of both AJK and the Northern Areas cannot participate in government at the national level because they have no representation in parliament.
This state of affairs has been a source of alienation, especially in the Northern Areas, and should not be allowed to continue. There is therefore an urgent need to devise a constitutional arrangement through which AJK and the Northern Areas are given full representative government at par with the provinces and representation in the national parliament, while at the same time protecting Pakistan's long-standing position that the final status of Jammu and Kashmir has to be determined through a plebiscite under UN resolutions. The good news is that this particular circle can be squared.
This can be done through an amendment in Article 1 of the Constitution – which defines the territories which constitute Pakistan – admitting Jammu and Kashmir as a new federating unit, pending a final settlement under UN resolutions and stipulating that in the interim the territories of the state would constitute two provinces: AJK and the Northern Areas (which could be given its original name of Gilgit and Baltistan or renamed as Balawaristan). It would follow from this arrangement that AJK and the Northern Areas would be represented in the National Assembly on the basis of their population and that they would jointly have the same number of seats in the Senate as the existing four provinces. AJK and the Northern Areas would each have its own governor, chief minister, provincial assembly and High Court (or preferably a common High Court) and the same measure of autonomy as the other provinces.
In addition to the separate provincial assemblies for AJK and the Northern Areas, a Joint Council of Jammu and Kashmir may also be created to legislate on any matters that the two provinces may entrust to it, such as the question who is a national of the state. Such an arrangement would preserve the character of Jammu and Kashmir as a single entity, while at the same time recognising that the Northern Areas have a separate personality. All the special provisions concerning Jammu and Kashmir could be included in a separate chapter of the constitution.
Needless to say, the adoption of any constitutional amendment redefining the status of Jammu and Kashmir presupposes that the elected representatives of the people of AJK and Northern Areas comprising their legislative assemblies express a wish for these measures. The amendment must state expressly that these are of a provisional nature and do not prejudice the determination of the final status of the state in accordance with UN resolutions. India would no doubt throw a tantrum. But that is an old habit and Pakistan should ignore it.
The writer is a former member of the Pakistan Foreign Service. Email: asifezdi@ yahoo.com