Kashmir in focus – part 1: Where’s the ‘Azad’ in Azad Jammu and Kashmir?

For 63 years, the area has been in a political and constitutional void.

MUZAFFARABAD:

They have Pakistani identity cards and passports – but are not quite Pakistani. Their homeland is autonomous, but not quite so. It has a Constitution – but one that is perpetually interim. They have a government and an assembly, but both of which are effectively powerless.

It is a land and a people with a past, and perhaps a future – but with no present.

Welcome to Azad Jammu and Kashmir (AJK): A virtual no-man’s-land, which will go to the polls this Sunday – but it is not quite clear what for.

A majority of (Azad) Kashmiris see the current political and constitutional status of the area as a joke. Most prominent among such residents of this area is Justice (retd) Manzoor Hussain Gillani, a former acting chief justice of AJK and its former chief election commissioner, who calls the current situation a “paradox”.

Identity(less)

This “paradox” has led to the systematic disenfranchisement of millions who live not only within its borders, on both sides of the LoC, but those who have migrated due to years and years of being in limbo.

Sixty-three years on, a UN-backed plebiscite is yet to take place, and AJK has stood in virtual limbo – as far from ‘Azad’ as can be possible. It is  a territory that has been forced into a comatose state of identity-lessness.

Given that Pakistan does not want to ‘harm’ its claim over the rest of ‘occupied Kashmir’ by recognising the LoC as a legitimate border (which it does not, to-date), AJK has been governed by all sorts of strange and painfully euphemistic laws and acts. Azad Kashmiris, even those who want to join their land with Pakistan, cannot technically call themselves Pakistanis – but, by law, have to wait and swear that, when the time comes, they will say they want to join Pakistan.

Unlike other ‘autonomous’ areas under the purview of Pakistan, such as the Federally Administered Tribal Areas (FATA), AJK is not even mentioned in the Constitution of Pakistan.

It is referred to in Article 1 (2)(d) as “such states and territories as are or may be included in Pakistan, whether by accession or otherwise.”

That’s it.

The AJK govt

For now, AJK is governed by an amended version of the Interim Constitution Act of Azad Jammu and Kashmir 1974. Under this Act, AJK is a parliamentary democracy, with the prime minister as the head of the government. It also has its own judicial system, with a High Court and a Supreme Court of AJK. Muzaffarabad is the capital of AJK and the seat of power.

It has a 49-seat Assembly, with 41 members elected directly – 29 by AJK residents and 12 by ‘Kashmiri Diaspora’ across Pakistan. Five seats are reserved for women, one for an Ulema, one for a technocrat and one for an overseas Kashmiri.

But the powers of the government and its legislative domain are next to negligible. One political activist, Afzal Solehria, described its powers as those of a “municipality”.

The real power lies above.

Kashmir’s constitutional system also has what is called ‘The AJK Council’ – which is effectively the supreme body of the land. The 14-member body controls almost all domains of legislation under the ‘Council Legislative List’ (see Box).

Strangely enough, its chairman is the Prime Minister – not of AJK, but of Pakistan. He elects five other members, who are sitting Parliamentarians of Pakistan. Other members include the President and Prime Minister of AJK, and six other indirectly elected members who are chosen by the AJK legislative assembly.

But, at the end, it is the Pakistani prime minister who exercises the executive power of the Council.

Above the council, completing AJK’s strange three-tier power structure, is, of course, the government of Pakistan, which has the final say on virtually everything – aside from the basic responsibilities of the Centre in any federal set-up – i.e. Defence, currency and foreign affairs (in AJK, the fourth untouchable central responsibility of Islamabad is “responsibilities of the government of Pakistan under UNCIP Resolutions”).

Limits of the AJK govt

The Interim Constitution Act 1974 is loaded with sweeping disclaimer clauses, such as Article 19:

“(2) The executive authority of the government [of AJK] shall be so exercised as:

“(a) not to impede or prejudice the responsibilities of the Government of Pakistan

“(b) to secure compliance with the laws made by the [AJK] Council.”

Also, because it is not a province, it does not have any intrinsic right to a share of revenue from Islamabad – even from massive power projects, such as Mangla Dam, that are set up on its territory by Pakistan. Justice Gillani points out that AJK is subject to all the liabilities (and more) of provinces, but has no rights and privileges.

The double-whammy is that the AJK cannot set up its own power projects, because it is not in the government’s domain.

To rub salt on its wounds, AJK’s most important bureaucratic positions – the chief secretary, chief secretary
(development), inspector general of police, accountant general, finance secretary and even the health secretary – are held by bureaucrats directly appointed by Pakistan from its own civil service.

In Sulehria’s words: “where exactly is the ‘Azad’ in ‘Azad Jammu and Kashmir’?”

Published in The Express Tribune, June 22^nd, 2011.