Repeal of Article 370: Pakistan’s reaction, UN Resolutions and Contemporary Realities

Abstract

Repeal of Articles 370 and 35 A has brought sharp reaction from Pakistan. These were provisions of Indian Constitution, which had long outlived their historical relevance. Their repeal represents an internal change defining relationship of the territory with the Center within India’s Federal frame-work. The step does not violate any bilateral or international commitment. Pakistan’s continued occupation of a part of Jammu and Kashmir (J&K) it seized illegally in 1948 is a violation of United Nations Commission for India and Pakistan (UNCIP) resolution. It has changed territorial status quo of Pakistan Occupied Kashmir (POK) three times since. Pakistan switched track in the 90s from plebiscite to human rights concerns and threat to international peace and security as basis for raising J&K issue. Its attempts failed both in United Nations (UN) General Assembly and the UN Commission on Human Rights. Pakistan equates self-determination with religion, and religion with its territorial interest.

The international context has changed since 9/11 with heightened concerns over terrorism. Recent events, including referendums in Kurdistan and Catalonia have shown that the international community has little appetite for breaking up sovereign, independent countries in the name of self-determination. The debate in Pakistan over repeal of Article 370 is taking place against the background of bitter struggle for power between the government and the opposition, where both sides are using Kashmir issue to bolster their position. This creates an escalatory dynamics, which could result in mis-adventure.

Introduction

Articles 370, which gave special status to Jammu and Kashmir (J&K) was part of Indian Constitution. Its repeal does not violate any international agreement. The article ensured that the people of J&K enjoyed democratic rights within the Indian Union, which the people of Pakistan Occupied Kashmir (POK) never had. Even after the recent amendment, there will be no change in this position. As part of the Union Territories, the people of J&K and Ladakh will continue to have representation in Indian Parliament. On the other hand, the people of POK and Gilgit–Baltistan do not have any representation in Pakistan National Assembly, though Islamabad is the ultimate arbiter of their fate.

Kashmir in the UN

Pakistan has tried to use United Nations (UN) fora to raise Kashmir issue repeatedly. However, Pakistani statements give a slanted version of history. The issue was referred to the UN by India in response to Pakistan’s aggression. The United Nations Commission for India and Pakistan (UNCIP) resolution of August 1948 had three parts: call for cease-fire, withdrawal of forces under Pakistani control and then ascertaining the wishes of the Kashmiri people. The relevant extract from the UNCIP resolution of August 1948 is quoted below:

Part II

Para A, sub-paragraphs (1) and (2)

1. “As the presence of troops of Pakistan in the territory of the State of Jammu and Kashmir constitutes a material change in the situation since it was represented by the Government of Pakistan before the Security Council, the Government of Pakistan agrees to withdraw its troops from that State.”
2. “The Government of Pakistan will use its best endeavour to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistan nationals not normally resident therein who have entered the State for the purpose of fighting.”

PART III

“The Government of India and the Government of Pakistan reaffirm their wish that the future status of the State of Jammu and Kashmir shall be determined in accordance with the will of the people…”¹

Withdrawal of Pakistani regular troops, as well as forces under its command was a condition precedent for plebiscite. Pakistan never fulfilled this condition, and over a period of time, went on consolidating its illegal occupation of the territory.

Pakistan Occupied Kashmir

For almost 25 years, Pakistan Occupied Kashmir (PoK) was directly ruled by Pakistan. It received its Constitution only in 1974. Article 4 of PoK Constitution defines fundamental rights of the people of POK. Its sub-section 7. (2) states:

“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.”²

Thus, by definition PoK Constitution rules out self-determination. This amounts to pre-determination in favor of the territory’s accession to Pakistan.

Even after proclamation of Constitution, PoK is effectively controlled by the so called Azad Jammu & Kashmir Council chaired by Prime Minister of Pakistan. PoK governments have been regularly changed with the inauguration of new government in Islamabad. Article 4 on Fundamental Rights includes sub-section 14 on the right to property. This provides protection, not exclusive reservation of right to property for subjects of PoK.

Over a period of time, Pakistan changed the territorial and legal position of PoK three times, which destroyed the premise on which UN mandated Plebiscite was based. First, Northern Area was separated from PoK in 1949 in a secret pact between leaders of the Muslim Conference and Pakistan. As PoK High Court in a historical judgment in 1993 noted, this changed the territorial status quo of the area in violation of UN Security Council resolutions. This was also

The second change in the status of PoK was brought about in 1963, when a part of erstwhile state of Kashmir was ceded by Pakistan to China. This deal was bilaterally negotiated between Pakistan and China without any reference to wishes of the people of Kashmir.

Third change was creation of a legislature and the office of Chief Minister in Gilgit-Baltistan, formerly known as Northern Areas, in 2009.³ This essentially perpetuates separation of the territory from PoK by giving it a democratic garb. Neither the people of PoK, nor Gilgit-Baltistan, have vote in the national assembly.

13th Amendment to PoK Constitution

13th Amendment to PoK Constitution adopted in June 2018 has tried to mute the criticism that so called ‘Azad Jammu and Kashmir’ is actually controlled by Kashmir Council chaired by Prime Minister of Pakistan. But the changes are at best cosmetic. While Kashmir Council has been made into advisory body, there is no real devolution of power from Islamabad to PoK. The power will now be directly exercised by Pakistan’s Prime Minister instead of acting through Kashmir Council in which representatives of PoK were also present. There is no change in the provision of the 1974 Constitution, which commits people of PoK to accept the entity’s eventual accession to Pakistan, rendering the idea of Plebiscite irrelevant. Only the sequence has changed from article 4.7. (2) in the previous Constitution to article 4.7. (3) in the new dispensation. In fact Pakistan’s control has been strengthened by inserting paragraph 4.7.(1) in the revised Constitution. It makes right to form association or union conditional upon restriction imposed by law ‘in the interest of sovereignty and integrity of Pakistan and Azad Jammu and Kashmir.....’.

Most of the legislative powers remain with the Government of Pakistan. Article 31(4) makes clear that the limited powers granted to ‘AJK Assembly’ in part B of the Third Schedule are to be exercised “with the consent of Government of Pakistan”. (Source: http://www.ajkassembly.gok.pk/AJK_Interim_Constitution_Act_1974.pdf [4])

Gilgit-Baltistan

Facing international criticism that Gilgit-Baltistan was being ruled directly by Islamabad, an exercise to introduce cosmetic changes has been undertaken through the Government of Gilgit-Baltistan Order, 2018. But the fundamentals have not changed. As in case of article 4.7.(2) of ‘AJK Constitution’, article 17(2) of Gilgit-Baltistan order mentions, “no person or political party in the area comprising Gilgit-Baltistan shall propagate against, or take part in activities prejudicial or detrimental to the ideology of Pakistan”. Further, Chapter 2 of the Gilgit -Baltistan order mentions Principles of Policy as set out in Chapter 2 of Part II of the Constitution of Islamic Republic of Pakistan.

Gilgit-Baltistan Act allows for immunity to Pakistani security forces as well as preventive detention. Article 7(3) on Fundamental Rights states that “The provision of this Article shall not apply to any law relating to members of the Armed Forces....” Article 9(4) allows for preventive detention to deal with persons “acting in a manner prejudicial to the integrity, security and defence of Pakistan or any part thereof....”

While creating an elaborate facade of separate legislature, Cabinet and Chief Minister for Gilgit-Baltistan, Part VII of the order on Distribution of Legislative Powers makes clear where the actual power resides. Para 60(2) (a) mentions that the Prime Minister of Pakistan “shall have exclusive power to make laws with respect to any matter in the Legislative List set out in the Third Schedule.” Gilgit-Baltistan Legislative Assembly is given powers under sub-para (b) of the same article on criminal law and procedure, but these powers are shared with Pakistan Government. Sub-para (c) gives the legislative assembly exclusive powers without specifying what they are! As abundant precaution, Para 61(4) mentions that in case of any conflict, the law made by the Prime Minister of Pakistan will prevail over the Act of Gilgit-Baltistan Assembly. (Source: https://gbcouncil.com/wp-content/uploads/2019/03/Gilgit-Baltistan-Order-2018-Promolugated.pdf [5])

The people of PoK and Gilgit Baltistan were deprived of their democratic right to vote in National Assembly elections to maintain the legal fiction that Pakistan has not altered the territorial status quo on which UN resolutions calling for Plebiscite were based. In effect, the area has been ruled by Kashmir Council chaired by Pakistani Prime Minister. The composition of the Committee is such that representatives of PoK are always in a minority.

Pakistan Constitution never provided any safeguard to the people of PoK on the pretext that the relationship of the territory with Pakistan will be determined in ‘accordance of the wishes of the people of the State.’ Article 257 of Pakistan’s Constitution states:

“Provisions relating to the State of Jammu and Kashmir

257. 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.”⁴

This was simply a legal fiction, as the territory was directly controlled by Islamabad till 1973, and even after PoK Constitution came into being, article 4.7(2) specifically ruled out any challenge to the ‘ideology of the State’s accession to Pakistan’. Pakistan grabbed the land, but let the fate of the territory and its people remain in limbo.

The Preamble to the PoK Constitution has an interesting provision, which gives away the reality behind the façade of treating PoK as a separate territory till the wishes of the people are determined in accordance with UNCIP resolutions:

“AND WHEREAS in the discharge of its responsibilities under the UNCIP Resolutions, the Government of Pakistan has approved of the proposed repeal and reenactment of the said Azad Jammu and Kashmir Government Act, 1970, and authorized the President of Azad Jammu and Kashmir to introduce the present Bill in the Legislative Assembly of Azad Jammu and Kashmir for consideration and passage.”⁵

The paragraph above mentions that the Government of Pakistan not only approved, but authorized the President of Azad Jammu and Kashmir to introduce the bill in the Legislative Assembly of PoK for consideration and passage. This clearly shows that Islamabad controlled PoK affairs, notwithstanding high sounding titles given to its functionaries.

Self-determination and Referendum: A contemporary Perspective

The two referendums in Kurdistan and Catalonia attracted world attention. They were held in different continents. But there is a common element. Both test the limits of scope of self-determination in a democracy. The reaction clearly shows that the international community no longer has the appetite for exercise of self-determination leading to secession, and break-up of established States.

The Referendum in the Kurdish Autonomous Region of Iraq was opposed by Iraqi central Government, as well as Turkey and Iran, the two immediate neighbours. The Iraqi Government’s stand was supported by Iraqi Supreme Leader, Ayatollah Sistani as well as Iraq’s Supreme Court.⁶ Kurdish Regional Government (KRG) nevertheless, went ahead with the vote. Iraq sent its forces, and KRG collapsed. The precedent is significant, as Turkey veers towards Pakistani position on Kashmir. Nearer home, it follows a different policy.

Mr. Puigdemont, the President of the Catalonian regional government called for a referendum in October, 2017. The referendum was opposed by the Spanish central government. Following the vote, Mr. Puigdemont first assumed the mandate to proclaim independence, then suspended the declaration of independence to allow for negotiations. The European Union (EU) refused to back Catalonian leaders demanding independence. The Spanish Constitution of 1978 granted powers of self-government to Catalonia. But the regional autonomy was granted across the country, not just to the Catalans. ⁷ Spain’s constitution also says that the country is “indivisible”, and the Spanish courts and the government have declared the referendum “illegal”.⁸ The EU Council President Donald Tusk, stated that the bloc’s 27 other leaders may have their “evaluations, opinions, assessments, but formally speaking there’s no space for the EU interventions here.” Antonio Tajani, President of the European Parliament, was just as categorical, “No one in Europe will recognize an independent Catalonia.”⁹

While Kurdish and Catalonian referendums failed, South Sudan won its independence in a vote in which 99 % of South Sudanese voted to secede from Sudan. Post-independence, the new State remains enmeshed in a pipe-line dispute with Sudan. Its economy depends upon transit of oil pipe-line carrying crude to Port Sudan.

While these regions have different histories, they share a common element with J&K. They are all land-locked territories. While Kurdish region and South Sudan have oil resources, Catalonia is one of the richer provinces of Spain. J&K is resource poor and depends upon India for trade, transit and supplies.

Pakistan’s Reaction to the Repeal of Articles 370 and 35 A

There was an interesting exchange in Pakistan National Assembly session, which was called to protest against Indian actions on August 9. The Members of Parliament (MP) were exercised that the text of the resolution did not have any reference to Articles 370 and 35 A. Pakistan Army was opposed to such reference, because they did not want to accord recognition to the arrangement which implied J&K was part of Indian Constitutional scheme. It is ironical that Pakistan is protesting against repeal of provisions of the Indian Constitution, it did not accept to begin with.

Prime Minister Imran Khan’s speech was devoted to projecting Kashmir, and its relationship with Pakistan, in terms of Hindu-Muslim animosity and Jinnah’s concept of the new State.¹⁰ Reference to Jinnah brought applause from the MPs. Ironically, it subtly tried to equate his call for making Pakistan ‘Riyasat-e–Madina’ with Jinnah’s thoughts. Jinnah’s speech of 11th August 1947, which Imran Khan quoted, was couched in modern idiom. There was an ambivalence in Jinnah’s thoughts and actions. He espoused a Two Nation Theory, and gave the call for Direct Action which led to communal clashes. These were momentous actions, and their consequences could not be wished away merely in a speech. Nevertheless, liberal Pakistanis lament that today’s Pakistan is far from Jinnah’s ideal. Jinnah is now co-opted to advance political ends of the beleaguered Pakistani Prime Minister.

Imran Khan’s government survives on a majority of six seats in the National Assembly, the value of Pakistani rupee has depreciated by 50 percent since November 2017, and the economy was bailed out by $ 6 billion Extended Fund Facility of the International Monetary Fund (IMF). The austerity package put in place as a result of IMF package is expected to bring down the growth rate to 2.5 percent in 2019-20. The combination of higher tax and lower government spending on public services will slow down the economy.¹¹ Karachi Stock Exchange has reached lowest level in 4 years.

Prime Minister Imran Khan’s speech was also peppered with references to minority protection. This is difficult to reconcile with increasingly intolerant nature of Pakistan’s society. Prime Minister Imran Khan was forced to drop Atis Mian as his choice for the post of Chairman of Economic Advisory Committee because the candidate was an Ahmadiya. During Pakistan Muslim League-N government, the Law Minister Zahid Hamid was forced to resign in November 2017 on the issue of change in the wordings of the electoral oath. When the highest law officer cannot survive pressure from extremist parties, the fate of minorities is a matter of speculation. The Party, which forced two successive governments to its will - Tehrik–e-Labbaik–e–Pakistan (TLP), is no longer an outlier in politics. It was allowed to participate in the Parliamentary elections in 2018 with active intervention by Pakistan’s Army. It helped Imran Khan’s Pakistan Tehreeke-e-Insaf by cutting into Nawaz Sharif’s vote bank, particularly in Punjab. The indebted Prime Minister despite his rhetoric has to follow their diktats not only in religious affairs, but also in choice of his economic advisor.

Interestingly, Prime Minister Imran Khan’s speech did not tell the world anything about the part of J&K, which Pakistan continues to occupy illegally. Since inception, Pakistan has not provided any constitutional safeguards to the people of PoK. Nor was there any equivalent of article 35 A in the constitution of PoK. Was it an accident? In any case, this significant omission has the effect of already changing the demographic composition of the area.

Maryam Sharif has been recently arrested; Nawaz Sharif is already in jail. Against the background of bitter power struggle between the Government and Opposition in Pakistan, both sides are likely to use Kashmir issue to increase their popularity. Neither is interested in the welfare of the people of J&K on either side of the divide created by Pakistan’s aggression. This will only escalate the rhetoric; there are no restraining voices in Pakistan.

There is need for caution against some incident in the Valley, which Pakistan could try to engineer on the eve of UN General Assembly Session beginning next month. Imran Khan’s speech, though short in substance, almost seemed designed to provoke an incident in the Valley. Pakistan’s first reaction after India’s decision to repeal Articles 370 and 35 A was a statement that Pakistan will use ‘all means’, an accepted usage for threatening military action. Prime Minister Imran Khan in his speech in the National Assembly not too subtly referred to escalation leading to nuclear exchange. They have already taken defence attaches of selected countries on a tour to its side of the Line of Control, and shown them parts of cluster bombs allegedly dropped by India. Pakistan to some extent is constrained by economic austerity imposed by IMF and the need to exit from FATF (Financial Action Task Force) Grey List. But at some point the pressure on a weak Prime Minister from the Army and Jehadis could become too much. He himself is prone to use these tactics.

References:

1. https://www.mtholyoke.edu/acad/intrel/uncom1.htm [6]
2. http://www.ajkassembly.gok.pk/AJK_Interim_Constitution_Act_1974.pdf [4]
3. Pakistan needs to stop thinking of Kashmir as an unfinished business of Partition, Hussain Haqqani, the Print, August 2019.
4. http://www.na.gov.pk/uploads/documents/1333523681_951.pdf [7]
5. http://www.ajkassembly.gok.pk/AJK_Interim_Constitution_Act_1974.pdf [4]
6. Jerusalem Post, 21.10.2017
7. Economist, October 7th, 2017
8. Financial Times, 21st October, 2017
9. Financial Times, 21st October, 2017
10. https://www.youtube.com/watch?v=RwxX-QA4SME [8]
11. EIU Country Report, July 2019.

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