Controversy over 14th amendment to AJK constitution

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Nation special feature

Part I

Big controversy has surfaced in regards to proposed 14th amendment to AJK Constitution and the cross party opposition even from AJK Cabinet has made the proposal more controversial.

Keeping in view of depth of the saga, legal and constitutional experts suggest that Government of Pakistan should call a political, moral, diplomatic and constitutional meeting on wider level to discuss the issue and ascertain the opinion from all sections of thoughts.

According to media reports, AJK government has declared its standpoint to the draft proposals reportedly formulated jointly by the federal ministries of law and Kashmir affairs. “An extraordinary meeting of the Azad Jammu and Kashmir cabinet has unanimously agreed to not agree with the draft of constitutional amendments in totality,” said a press release issued by Raja Muhammad Wasim, press secretary to the AJK prime minister.

The cabinet meeting was held in Muzaffarabad on Wednesday (July 17) under the chairmanship of Prime Minister Raja Farooq Haider where a threadbare discussion was held on the draft of amendments, received from the federal ministries of law and Kashmir affairs on June 22 this year, among other things, the statement added.

The press release did not specify the draft proposals received from Islamabad, but a media report has claimed through confidential sources that some elements in the federal government were “hell-bent” upon revival of the council’s fiscal and administrative powers through the proposed 14th amendment — something the AJK government was completely unwilling to concur with.

Commenting over the overall situation, the European Foundation for South Asian Studies (EFSAS) said that the draft of the 14th Amendment Bill to the 1974 Interim Constitution of the Pakistan-Administered and so-called ‘Azad’ (Free) Jammu & Kashmir (J&K), which has been accessed by EFSAS and can be seen here, has served as a grim reminder of just how suppressed and occupied ‘Azad’ J&K actually is. It is not, however, the proposed 14th Amendment that would be responsible for bringing this situation about. The major credit for that would go to the 1974 Interim Constitution promulgated during the period when Zulfiqar Ali Bhutto was the Prime Minister of Pakistan. This so-called Constitution, among other things, spelt out the contours of the future relationship between the Pakistani State and Pakistan-Administered J&K, and the picture that it presented for the latter was highly unflattering, and it brought to mind images of subjugation and occupation.

Azad Kashmir Supreme Court building

The 14th Amendment Bill brought back into focus the trick played against the residents of Pakistan-Administered J&K, who were made to believe that they were free through use of catchy and emotive terminology in the naming of their region, only to be rudely disappointed by the subservience to Pakistan that was blatantly dictated by the 1974 Interim Constitution. The 14th amendment simultaneously further detracts from the limited rights and freedoms given to the people of Pakistan-Administered J&K, while strengthening the grip of the Pakistani State over the region even more. This has resulted in a fresh wave of indignation among nationalist leaders of the region, several of whom have in recent days publicly articulated their misgivings and registered their strong protest. It is the iron grip with which the Pakistani military establishment ruthlessly holds the inhabitants of the region, and perhaps also the restrictions in place on account of the COVID-19 pandemic, that have inhibited major protests against the Amendment from breaking out within Pakistan-Administered J&K. 

A reading of some of the relevant sections of the 14th Amendment Bill glaringly reveals just how the Pakistani State views Pakistan-Administered J&K and its residents, and how far it has gone in subjugating them. In the proposed amendment to Article 4 of the Interim Constitution of 1974, the draft puts a rider to the freedom of association for the people of the region by stressing that such freedom would strictly be, “subject to any reasonable restrictions imposed by law in the interest of sovereignty of Pakistan or integrity of Pakistan or Azad Jammu and Kashmir and morality or public order”. Restrictions based on maintenance of public order can be understood, and while debatable, morality may also serve a purpose. But to require the people of a forcibly-occupied region who live in territory that has apparently been declared ‘free’ by the occupying entity, Pakistan, to sacrifice their human and other rights in the interest of the sovereignty and integrity of occupying Pakistan comes across as rather convoluted.

Even more outrageous is the clause imposed by Pakistan on the right of residents of the supposedly ‘free’ portion of J&K to form a political party, or even be a member of one. Here too, the draft specifies that restrictions in the interest of the sovereignty and integrity of Pakistan would be imposed firmly. How and why a person desirous of forming a political party in a declared ‘free’ region, for the benefit of the people of that region, could face restrictions based on some vague perceived threats to the sovereignty and integrity of another country altogether is incomprehensible. Amusingly, it does not end there. The luxury of identifying and acting punitively against any political party or individual in ‘free’ J&K that violates this clause has conveniently been retained in the firm, and going by history overbearing, grasp of the Pakistani State.

EFSAS further comments that Pakistan has over the years been duplicitously projecting itself as a strong votary of the now near-defunct 1948 UN Resolutions that specified a referendum in the entire erstwhile Princely State of J&K. The reality, though, is that the onus of implementing the first stage of the suggested process that would lead up to the holding of such a referendum lay squarely on Pakistan’s shoulders. Pakistan was asked to first withdraw all its nationals that had entered J&K for the sake of fighting, a step that it has not taken till date. The hypocrisy and the abundant mismatch between Pakistan’s statements invoking the UN Resolutions and its actions on the ground, which clearly point to the absence of any intention of being serious about a referendum, also came through in the draft 14th Amendment Bill.  The draft read, “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 accession to Pakistan”. Without the need for any referendum, Pakistan seems to have decided for the people of Pakistan-Administered J&K that they would have no option other than to accede to Pakistan. If they did not, the might of the Pakistani military establishment would bear down upon them, and the supposed Constitution of the ‘Azad’ J&K, their own Constitution, would provide the legal basis.                                                                                                                             

The 1974 Interim Constitution of ‘Azad’ J&K is not the only place where Pakistan’s insecurity over its lack of a legal title over J&K comes through. Article 257 of the Pakistani Constitution of 1973 quaintly states that, “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”. By starting Article 257 with the word “When”, as against “If” or something else less affirmative than “When”, the Pakistani Constitution itself has made a total mockery of the principle of a referendum. Meanwhile, successive Pakistani leaders, civilian and military alike, have contradictorily but consistently harped upon holding of a referendum. However, if the Pakistani Constitution is to be taken at face value, the accession of J&K to Pakistan is already a foregone conclusion.

(To be continued in next edition)