By Javaid Hayat
Nation-states are recognized by the international community as sovereign states as per the ‘Westphalian sovereignty’ concept. Notwithstanding, there are political entities on the world map, which are mostly driven by conflict or crisis and disputed or tangibly controlled by external powers. The Azad state of Jammu & Kashmir (AJK) is one of them. Defining AJK in a legal and constitutional context under United Nations Commission for India and Pakistan UNCIP resolutions on Kashmir and in international relations remain a dilemma.
At the time of the formation of the Republic of Azad Kashmir on 24 October, which intended a transition from autocracy to democracy, the provisional government of Azad Kashmir made a declaration that, “The new government represents the united will of Jammu and Kashmir State. The provisional government entertains 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 a political entity”.
In the present context, it is difficult to define the status of the ‘Azad State of Jammu & Kashmir’. It is not a sovereign state as it looks from the outset as it has a president, a prime minister, flag and national anthem and Supreme Court that shows a symbolic statehood.
Despite this, however, it lacks sovereignty and empirically possesses limited statehood. Sovereignty is generally defined as recognition of the claim by a state to exercise supreme authority over a clearly defined territory and declaration of recognition from the international community, which is not the case with this territory. However, it can be considered a non-recognized quasi-state, a sui generis, a territory with disputed and fragile statehood, a de facto and a splinted protectorate of two neighboring powers, a demarked entity with multi-ethnic, religious and political identities alongside the Line of Control (LoC). Azad state of Jammu & Kashmir is sharing sovereignty with nation-state of Pakistan, but it is not constitutionally part of Pakistan. It is neither a province nor an agency of Pakistan but has a government of its own, even though it is protected, administratively controlled and economically dependent on Pakistan.
Talking about legitimate political and constitutional rights of the people of AJK is not a new phenomenon rather since for several decades these issues were raised by the nationalist forces of AJK but it got momentum when the former prime minister of AJK Raja Farooq Haider, who belongs to the ideology of state accession with Pakistan, spoke up and demanded redefining the political and constitutional relationship between Muzaffarabad and Islamabad.
The political and constitutional relationship between the government of Azad Jammu and Kashmir and government of Pakistan is a complex, rather ambiguous, power-sharing system based on Interim Act 1974. The political leadership of Azad Kashmir has a ‘history of surrender’ since the establishment of so called ‘Azad State of Jammu & Kashmir’ in 1947. Despite the independence declaration of October 24th 1947 through which a new ‘revolutionary’ government was formed and claimed to be legal heir or successor of dethroned Maharaja Hari Singh, it surrendered the sovereignty while signing the Karachi agreement in 1949. Critics say, the government announcements of 24th of October 1947 (and 4th of October prior to that) were error-prone by design, disruptive, non-consultative, opportunistic and took the Kashmiri nation away from a genuine transition from autocracy to democracy (Shakshi Raaj to Awaami Raaj).
The power-sharing mechanism between AJK and government of Pakistan was initially based on the Karachi agreement (1949) and currently under interim constitution Act 1974. A detailed study of this ambiguous relationship clearly indicates a ‘systematic and organized hypocrisy’ as a Kashmir council holds exclusive powers over the AJK government and AJK assembly. The Azad Kashmir assembly, which is an elected forum, is only responsible for dealing with day to day affairs in a given legal setup. The aim of establishing of Kashmir council was to build a bridge between AJK and the federation of Pakistan to overcome legal ambiguity and the smooth functioning of governance issues in the territory of Azad Kashmir.
However, since its inception it has failed to perform for the purpose it was made for, rather it become a source of contention between the parties. All powers and responsibilities that usually should lie with an elected government for economic prosperity, transparency and other inevitable challenges regarding governance are given to AJK council, which is by default headed by the prime minister of Pakistan, who is neither elected by the people of Azad Kashmir nor accountable to the any institution or judiciary of AJK.
The ‘carrot and stick’ policy adopted by the federation of Pakistan through the Kashmir council is not only creating resentment and a sense of marginalization, but depriving the people of AJK their legitimate rights. In my personal encounters with many political leaders, civil society activists, legislatures, academics, bureaucrats and journalists most of them have acknowledged growing political resentment and sense of deprivation among the people of AJK. Moreover, many indicated that this is not only because of ongoing conflict of Kashmir for several decades, but also due to the lack of political will and vision of leadership of Azad Jammu & Kashmir. Despite of having reservations and fear, the overwhelming majority of political forces of AJK have agreed and admitted, if not publically but at personal level, the need to revisit and redefine the current imbalanced relationship under Act 1974 but question always arises who will tie the bell on cat’s neck? Besides many of nationalists parties, the outspoken Raja Farooq Haider and Sardar Khalid Ibrahim have always criticized negative and unnecessary role by the Center and Ministry of Kashmir Affairs and its associated agencies into making and breaking approach for having their own ‘friendly- driven puppets’ in order to run this territory of Azad Kashmir.
During his nine month premiership Raja Farooq Haider opened a Pandora box while addressing media and public proceedings regarding the rights of the people of AJK particularly on ownership and royalty rights regarding the Mangla dam and Nehlum Jehlum hydroelectric project.
Democratic norms and practices are pre-requisites for peace building and good governance. It is agreed by many scholars that participatory governance is required because traditional ‘representative’ democracy has failed to meet with emerging challenges of people’s participation into decision-making and accountability factor particularly in disputed territories and conflict zones. Given the current controlled democratic governance structure in Azad Kashmir under Act 1974, which ties the hands of AJK assembly to exercise its limited powers, whereas the Kashmir council retains exclusive financial and legislative powers, it seems impossible to form a participatory governance structure.
The role of civil society is crucial for strengthening democracy and empowering the governance for social development that unfortunately in AJK has been lacking from many decades. However, some significant interventions have been made by the civil society that includes local media and civil society organizations of AJK.
For example, a blogger, writer and civil society activist Tanveer Ahmed, who heads the Kashmir civil society forum, and Kashmir One Secretariat, have successfully conducted many advocacy sessions and raised awareness on citizen participation and good governance in AJK. A non-governmental forum called Center for Peace and Development Reforms (CPDR) has taken a lead and proposed an appraisal for political and constitutional empowerment of AJK and Gilgit Baltistan. A former Chief Justice Supreme Court of AJK Manzoor Hussain Gillani, who heads The Association for the Rights of People of Jammu and Kashmir (ARJK), has been vocal for streamlining the current confused relationship of Azad Kashmir with government of Pakistan. In his views, all subjects and powers, which the parliament of Pakistan delegated to the provinces after 18th and 19th amendments, those all need to be given to AJK assembly and AJK government by amending the Constitution of Pakistan. He argues that this must not negatively affect Pakistan’s stance on the Kashmir conflict and AJK must be treated like other provinces of Pakistan in terms of giving rights and a voice into the decision-making forums of Pakistan, but should not be declared as province.
Many political heads of AJK don’t share this view, and criticize it by arguing that such would be harmful for the Kashmir case at the international level. Nevertheless, the overwhelming majority of opinion leaders are in favor of restoring Act 1970, which provides a quantum of autonomy with some necessary amendments, such as an interim arrangement until the final settlement of the Kashmir conflict.
It seems obvious that a new social and legal contract is required as the current political, administrative, and judicial structure in AJK based on interim Act 1974 is unworkable, non-progressive and non-accountable.
The political forces of AJK should come up with solid and workable proposals for wide-reaching autonomy for AJK. They must understand that political and economic empowerment drives from constitution for which a political will and struggle is essential that unfortunately is lacking in current political leadership of Azad Kashmir. Moreover, the policy-making authorities sitting in Islamabad must realize that depriving the people of AJK from their legitimate rights and treating them as second class citizens, even though after 18th and 19th amendments in Pakistan, could fuel pubic sentiments for a violent struggle. The government of Pakistan must understand that the rights of the people of AJK cannot be held hostage because of the Kashmir conflict at large. Given the conflict-centric approach and the Kashmir conflict, whose destiny is yet to be decided, only a wide-reaching autonomy could help to address the legitimate rights of the people of this region and empower its governance structure.