Deepak Sharma
Albeit notionally ‘Azad’ status is given by Pakistan to ‘Azad Jammu and Kashmir’ but in reality Pakistan has complete control over the region and has treacherously made the inroads of its control over the region through so called ‘The Azad Jammu And Kashmir Interim Constitution Act 1974’, usurping the legislative, judicial and executive authority from the people of ‘Azad Jammu Kashmir’, virtually making the region its colony by plundering its resources and depriving the people of their basic human rights .Grave atrocities are being committed by Pakistan through its instrumentalities over the people of ‘Azad Jammu and Kashmir’ who questions Pakistan’s legitimacy over the region. There are numerous instances and horrendous stories of forced disappearances, political murders, detentions, tortures, custodial deaths and muzzling of voices of people of PoK by Pakistan to maintain its authority over the region. Many of such atrocious stories of doomed people of Pakistan Occupied Kashmir (PoK) are never reported and see the light of the world because of complete censorship on media and other reporting agencies by Pakistan. Without any freedom of speech and expression in the region, the demand for autonomy, separatism and even independence, is simmering in both parts of PoK-‘AJK’ and Gilgit-Baltistan.
How much ‘azad’ is the so called ‘Azad Jammu and Kashmir’ , can be gauged from the fact that it was administered by a minister in charge of Kashmir and Northern Areas ‘KANA’ in Islamabad till 1974 and by an executive council headed by Prime Minister of Pakistan even at present. In guise of providing for a better Government and administration and to introduce parliamentary system, ‘Azad Jammu and Kashmir Interim Constitution Act of 1974’ was enacted making provision for a Prime Minister as the executive head and for a president who is elected indirectly. Though the Prime Minister was made the executive head but in reality there are very restricted matters on which the Prime Minister can exercise his power and the real power is vested in a powerful body called ‘Azad Jammu and Kashmir Council’ chaired by the Prime Minister of Pakistan. The Azad Jammu and Kashmir Council headed by Prime Minister of Pakistan, exposing so called ‘azadi’ of the PoK, is vested with both legislative and executive powers. The Azad Jammu and Kashmir council of which the Prime Minister of Pakistan is the Chairman, consists of 11 members, 6 of whom are elected by the ‘Azad Jammu and Kashmir Assembly’ and 5 are nominated by the Prime Minister of Pakistan. The ‘AJK’ council headed by Prime Minister of Pakistan, is even given the power to appoint Judges of Supreme Court and High Court of ‘Azad Jammu and Kashmir’, Chief Election Commissioner and Auditor General.
A bill passed by the ‘Azad Jammu and Kashmir Council’ is not required to get the assent of the President of ‘Azad Jammu and Kashmir’, only upon the authentication by the Chairman of the Council, who ex officio is the Prime Minister of Pakistan, the bill becomes law.
The fairness in the elections of so called ‘Azad Jammu and Kashmir’ is reflected from the fact that all elections, even the election to the office of President of ‘Azad Jammu and Kashmir’ is conducted under the control and supervision of the Chief Election Commissioner, who himself is appointed by the ‘Azad Jammu and Kashmir Council’ headed by Prime Minister of Pakistan.
The legislative authority on all the important subjects like communication, currency ,aviation, railways, newspapers, books and printing presses, tourism etc. has been vested on ‘Azad Jammu and Kashmir council’ headed by the Prime Minister of Pakistan. Whereas the subject of defence and security, currency and external affairs of ‘Azad Jammu and Kashmir’, has been directly taken over by the Pakistan under article 31(3) of ‘The Azad Jammu and Kashmir Interim Constitution Act 1974’ by limiting the extension of executive authority of Government of ‘Azad Jammu and Kashmir’ under article 19 of the Interim Constitution Act 1974.
Governments in ‘Azad Jammu and Kashmir’ are made and broken by Pakistan taking the shield of Article 56 of ‘The Azad Jammu and Kashmir Interim Constitution Act 1974’, the text of which says “Nothing in this article shall derogate from the responsibilities of the Government of Pakistan in relation to the matters specified in sub-section (3) of section 31 or prevent the Government of Pakistan from taking such action as it may consider necessary or expedient for the effective discharge of those responsibilities”. It is by using section 56 of ‘The Azad Jammu and Kashmir Interim Constitution Act 1974’, Pakistan justified the removal of Raja Mumtaz Rathore, Prime Minister of ‘Azad Jammu and Kashmir’, whose party took lead in fourth ‘AJK’ legislative Assembly elections in 1990, when he made a statement that the ‘Pakistani rulers use the Kashmir issue for capturing and retaining power’. Making the illegitimate authority of Pakistan over PoJK perpetual, section 33 of ‘The Azad Jammu and Kashmir Interim Constitution Act 1974’ further prohibits ‘Azad Kashmir Assembly’ from making any amendment in section 31 and 56 of the Constitution, that gives substantial control to Pakistan over ‘Azad Jammu and Kashmir’.
Pakistan’s illegitimate control over PoK is exposed in ‘The Azad Jammu and Kashmir Interim Constitution Act 1974’ itself, which under article 31(3)(a) states the responsibilities of the Government of Pakistan regarding PoK under the resolution of United Nations Commission for India and Pakistan (UNCIP) and Pakistan always justifies its control over the region citing its so called obligations under UNCIP Resolutions. This is significant to understand that of the four resolutions passed by the UNCIP, the third resolution of August 13, 1948, is the most significant. This resolution carries three parts, the Part I relates to Cease fire order, Part II relates to Truce Agreement wherein Pakistan was required to withdraw completely all its troops from the region and India was required to reduce the strength of its forces in the region and Part III stated “The Government of India and the Government of Pakistan reaffirm their wish that the future status of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptances the truce agreement, both Governments agree into consultations with the Commission to determine fair and equitable conditions whereby such free expression will be assured”. It is to observe that in Part II of the UN Resolution of August 13, 1948, while Pakistan was required to withdraw completely all its forces but India was allowed to maintain the minimum required troops. This clearly meant that even United Nations recognised India’s claim over the region and Pakistan’s no legitimacy over the PoK region that was why Pakistan was asked to withdraw all its troops and India’s claim over the region substantiated as India was just asked to reduce the strength of its troops. Also as per the Assurances on Resolution adopted by U.N Commission for India and Pakistan (UNCIP), 1948, on point no. VIII, it is clearly stated “Plebiscite proposals shall not be binding upon India if Pakistan does not implement Parts I and II of the UNCIP Resolution of 13th August, 1948” meaning thereby that India is under no obligation to conduct plebiscite if Pakistan does not completely withdraw its troops from the region as specified in Part II of the Resolution . And since Pakistan never implemented Part I and II of the Resolution i.e Pakistan didn’t completely withdraw its troops from the Pakistan Occupied Kashmir (PoK) region, hence there existed no question for India conducting plebiscite over the region as mandated in point no. VIII of the Assurances on Resolution adopted by UNCIP.
Pakistan while exercising its illegitimate control over Pakistan Occupied Kashmir (PoK) has even disregarded its own Constitution, which under article 257, do not authorise Pakistan to administer PoK. Article 257 of the Constitution of Pakistan states “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”.
(The author is an advocate at J&K High Court and Convener RAAG (Research and Advocacy Group)
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