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| AFSPA and Omar Abdulla | | 
Dr. Syed Nazir Gilani
On 5 May 2014 Ex-President of PaK General Sardar Mohammad Anwar Khan proposed my name at the one-Day International Conference on Kashmir organised by Kashmir American Council at a local hotel in Islamabad Pakistan for the position of Plebiscite Advisor to the Government of PaK to assist in carrying forward the constitutional duty of the Government of PaK and Government of Pakistan under UNCIP Resolutions for holding a Plebiscite.
The Constitutional duty to appoint a Plebiscite Advisor is provided in Section 8 of “Azad Jammu and Kashmir Government Act 1970” and Section 11 of “Azad Jammu and Kashmir Interim Constitution Act 1974”. Governments at Muzaffarabad have continued to fail in their Constitutional duty for the last 44 years. The Conference was presided over by President of PaK Sardar Yaqoob Khan and chairman Kashmir Committee in the parliament Maulana Fazal-ur-Rehman was the chief guest. There was a continuous activity around this proposal from 5 May 2014 until the night on 9 August 2014. I had to leave for London on 10 August 2014. I owe a big thank you and a deep sense of gratitude to all those who wished to subscribe their interest and trust in my understanding of the jurisprudence of Kashmir Case.
It has been my considered view that non knowledge (also unreliable) of the jurisprudence of UN Resolutions on Kashmir and a shift over to a militant manner of pressing for the right of self-determination has been a fatal error in Kashmiri judgement. The numerical deficit caused by the death of a generation has in fact killed the numerical basis of self-determination for a long time to come. If money and status had been the mission of my life, I would not have let go my senior class one gazetted position in Pakistan as early as in 1978 and tangle with Zia-ul-Haq regime in defence of “Kashmir Case and Kashmiri Language”.
I would have been of some help, if the offer of Plebiscite Advisor to the Government of PaK had been made to me prior to the start of a militant struggle. It is a belated consideration and I do not have any appetite for it. However, a revision of an earlier militant attempt and a return to jurisprudence is a good sign. The UN jurisprudence on Kashmir case has the support of 195 countries and keeps the universal character and dignity of the principle of ‘equality’ of people.
It goes without any doubt to point out that India and Pakistan would never succeed to resolve the Kashmir dispute if either of the two or both try to distance away from the UN mechanism on Kashmir. It is equally important that the three Kashmiri governments at Srinagar, Muzaffarabad and Gilgit (and Kashmiri leadership) need to have a reliable understanding of the jurisprudence of UN Resolutions on Kashmir. There is a difference between the redacted knowledge fed as propaganda by the parties and the textual truth of the UN mechanism on Kashmir.
There may be many in India and in Pakistan who may not wish to be told about the position taken up by France at the UN Security Council during the debate on Kashmir. Mr. De La Tournelle stated, “My delegation thinks that the organization of a free plebiscite in Jammu and Kashmir would be the most effective and possibly the only means of stopping hostilities in those States, as it would, give the population the assurance that they would be free to decide their own fate. Our main preoccupation, therefore, should be the organization of a plebiscite”.
France went on to add, “The simplest solution, therefore, would be to set up a provisional government which would hold office while the Plebiscite was being prepared and held, and would later disappear. In my opinion such a provisional government would have to be a coalition government composed of the chiefs of both the National Conference and the Moslem Conference. This government, acting under the authority of the Security Council, would be alone responsible for taking any steps necessary for holding the plebiscite”. France further added that, “The French delegation earnestly hopes that, once the Kashmir dispute has been settled, the solution of other outstanding questions between India and Pakistan will be greatly eased”.
French position on Kashmir leaves no doubt that Kashmir is a core dispute between India and Pakistan on the one hand and on the other it is a principal matter as a right to self-determination for the people of Kashmir. India has gone to UN for the adjudication of the provisional accession in reference to the people and Pakistan has filed a defence, which has been reflected in accordance with the character of the various governments in Islamabad. Over the years army has not allowed any civilian government to dilute the character of its interest in Kashmir beyond a certain point. Whether this overriding interest in Kashmir corresponds to the jurisprudence of Kashmir case has not been rigorously and fairly argued at all. The input from PaK Government and Kashmiri leaders on this side of the cease fire line (LoC) is non-existent and continues to be influenced by the governing character in Islamabad.
The input from J&K Government and Kashmiri leaders on the Indian side of the cease fire line (LoC) is also the same. UN has slated J & K government as “The Lawful Government of Kashmir”. Therefore it is the duty of this Government to address itself in accordance with UN SC resolution S/2017/Rev.1 of 30 March 1951 and article 48 of the Constitution. PaK Government has continued to fail on Section 8 of “Azad Jammu and Kashmir Government Act 1970” (last 44 years) and the Government of J & K continues to fail on article 48 since 1956 (last 58 years) and has remained purposely at a distance to see the connection between article 4 of the Constitution and UN SC resolution S/2017/Rev.1 of 30 March 1951.
National Conference is the political party and Abdullahs are the family that carry a higher burden of responsibility in defending the principle of equality of the people of Jammu and Kashmir as argued by Sheikh Mohammad Abdullah (as NC leader) at the UN Security Council. National Conference and Abdullahs should not be deceitful to the people when it comes to the question of revocation of controversial Armed Forces Special Powers Act (AFSPA) from some areas of the State. He needs to take a stand on principle and in accordance with the merits of the demand.
Abdullah the third has not been an original but a carbon copy of the failed legacy. Omar has criticised army for opposing revocation of controversial Armed Forces Special Powers Act (AFSPA) from some areas of the State. Chief Minister Omar Abdullah on Independence Day said the proposed NATO pull-out from Afghanistan this year was used as an excuse by some people to justify its continuous implementation.
Omar without doubt does not have the knowledge of the jurisprudence of the role of the Indian army in Kashmir and the competence of Kashmir government in regulating it. Indian army is subordinate to the State Government and has a defined role. It is subject to restraints of discipline under the terms of the Provisional Accession and under the provisions of UN Security Council Resolutions. The Government of India has entered into a bilateral agreement with the Government of Jammu and Kashmir, that its forces would “defend the territory”, “protect life, property and honour” of the people of Jammu and Kashmir. All other work would be extraneous to the agreement.
On 5 February 1948 addressing the UN Security Council Sheikh Mohammad Abdullah said that, “The Prime Minister of India long ago declared that the Government of India has no intention of keeping its army permanently stationed in Kashmir. He stated: “We are there only as long as the country is in turmoil. Once law and order are established, once the marauders and tribesmen leave the country, we will withdraw our army.” Sheikh added, “There need be no fear, since the Indian army is there, that this army will interfere in the exercise of a free vote. After all, a commission of the Security Council will be there in order to watch.”
Two months later the UN Security Council Resolution of 21 April 1948 in Para 2 (c) (i) to (iii) sets out the restraints on the behaviour, number and location of these Indian forces. These forces have to be in Kashmir in accordance with the following three principles:
(i) That the presence of troops should not afford any intimidation or appearance of intimidation to the inhabitants of the State;
(ii) That as small a number as possible should be retained in forward areas;
(iii) That any reserve of troops which may be included in the strength should be located within their present base area.
State Government has failed to make out a substantive case on the basis of four duties laid down for the Indian army under the bilateral agreement and on the basis that it is a subordinate and supplemental army, which is further bound by a discipline under UN Security Council Resolution of 21 April 1948. Since the elections to the Assembly are drawing closer National Conference would like to redact the merits of the case supporting the revocation of controversial Armed Forces Special Powers Act and feign a cosmetic interest as a party wanting a revocation of AFSPA.
Omar Abdullah like all chief ministers would not look over his shoulders and into tomorrow and many tomorrows of future generations. He should start studying the jurisprudence of Kashmir case and in particular, remember what his grandfather said at the UN Security Council. He said, “There is no difference on this issue of internal democratization of administration between me, my party and the people of Poonch. We are one; we want our own liberty; we want our own freedom; we don’t want autocratic rule. We desire that the 4 million people in Jammu and Kashmir – Hindus, Sikhs and Muslims –shall have the right to change their destiny, to control their country and to administer it as best they can. On this point there is absolutely no difference.”
(Dr. Syed Nazir Gilani is Secretary General – JKCHR, NGO in Special Consultative Status with the United Nations)
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