By Dr. Syed Nazir Gilani
Makkah Declaration of Islamic Summit adopted on 31 May 2019 has underlined the importance “of the cause of Palestine as the central cause of the Islamic Ummah” and remains silent on “the cause of the people of Kashmir”. On 29 May 2019 President of Azad Kashmir has addressed OIC Contact Group on Jammu and Kashmir and reportedly presented a 9 point formula to the Contact Group to resolve the dispute. The representative of Syed Ali Shah Gilani has also addressed the Contact Group.
The fact that Kashmir Cause did not merit a mention in Makkah Declaration, is a testimony to the fact that AJK President was ill prepared for the two events of OIC or has not updated himself since he assumed office in August 2016. It seems that he has not overcome the prejudices that would have influenced his long career in the Foreign Office. It is one thing to be a career diplomat and need to be quite different to perform as the head of a State. Azad Kashmir has a constitutional relationship with the Government of Pakistan and the two remain sub-ordinate to UNCIP Resolutions.
The nine points presented at the OIC Contact Group on Kashmir, are skinny and unimpressive. President has a constitutional duty and he should have consulted the cabinet, members of the legislative assembly, 12 refugee members in the assembly, elders in 2.5 million refugees and people from all cross sections of the community at home and in the diaspora.
It is in the interests of India that our leaders wander into the wilderness of new formulae and err to distance away from the UN Resolutions (UN package) on Kashmir. Item 5 in the 9 point formula presented at the Contac Group meeting, spills the beans. It has confirmed that our leaders have unreliable understanding of the jurisprudence of Kashmir case.
Item 5 of the 9 points reads “Help the parties to the Kashmir dispute to reactivate a multilateral diplomatic process for the resolution of the Kashmir dispute, including resort to negotiations, enquiry, mediation, conciliation, arbitration, and other peaceful means in accordance with the UN Charter.”
Azad Kashmir President has inherited a constitutional duty towards Kashmir dispute under Article 8 of Azad Jammu and Kashmir Government Act 1970 and Article 11 of The Azad Jammu and Kashmir Interim Constitution Act 1974. These duties have been fully argued and debated in the full court judgement of Azad Kashmir High Court given in a Constitutional Writ Petition filed by JKCHR in 1992 and decided in April 1999. The judgement is reported in Yearly Law Reporter 1999.
Item 5 of the memorandum does not assist the cause of Kashmir. It disturbs the jurisprudence of the case. Kashmir dispute has been examined by an enquiry commission appointed by the UN Security Council and reports have been filed, in regard to the “negotiations, enquiry and mediation”. The process covering an ‘enquiry’, ‘negotiation’ and ‘mediation’ has been exhausted. There is no dispute on the right of self-determination. The hiccup is in regards to the procedure and the main impediment is the question of ‘demilitarization’.
India can’t hold on to its obdurance for long. Pakistan or any other member nation of the UN could ask for an ‘arbitration’. UN Security Council could take a step on its own or refer the matter to International Court of Justice, for the appointment of an arbitrator or arbitrators. President of Azad Kashmir should have adhered to the merits of the case and pointed out that it is time to refer the matter for ‘arbitration’.
The argument or the ‘spin’ that OIC Contact Group on Kashmir invited Azad Kashmir President as the ‘true’ representative of Kashmir has no merit. Kashmiri leadership continues to use the term true representatives as a prefix with their names. It suggests that there is another category of untrue representatives. It would also mean that true representatives and untrue representatives have their two different constituencies.
We cannot argue that there is a constituency made up of true and another one of untrue people? UN SC Resolutions or UNCIP Resolutions do not endorse these rival designations? Our case is based on one person one vote. There could be no untrue representatives or untrue constituency in Kashmir. This argument could be turned against us, as it negates the principle of ‘equality of peoples’ and their ‘right of self-determination’.
President has failed to flag for the attention of the Contact Group that Indian security forces have profiled the Kashmiri youth into five categories for killing. Huge rewards are paid for killing the Kashmiri youth from any one of these categories. He has a duty to point out that Indian security forces remain under seven restraints in Kashmir and that they should be either brought under this discipline or a UN force as suggested by Australia, Cuba, United Kingdom of Great Britain and Northern Ireland and United States of America should be inducted into Kashmir.
Item 9 of the memorandum should have been linked with item 10 of the Kashmir Resolution adopted at the 22nd Islamic Conference of Foreign Ministers held in Casablanca, Kingdom of Morocco from 10-11 December 1994.
President of Azad Kashmir has switched over from a service discipline that he has remained loyal to during his long diplomatic career to a constitutional duty and duties assumed under UNCIP Resolutions in Azad Kashmir. The switch over has its inherent difficulties. There is no option but to act in accordance with the constitutional discipline and in the discharge of duties assumed under UNCIP Resolutions.
The 9 point memorandum has not served the cause of Kashmir and absence of Kashmir from Makkah declaration confirms that President had left Muzaffarabad ill prepared. We live in 2019 and the people of Kashmir have left the times of “Chirag Beigh” far behind.
(The writer is President of London based Jammu and Kashmir Council for Human Rights – NGO in Special Consultative Status with the United Nations.)