Monday, 1 August 2011

Earthquake in Kashmir Politics- By Dr. Syed Nazir Gilani

Earthquake in Kashmir Politics- By Dr. Syed Nazir Gilani
Secretary General - JKCHR
Posted: August 01, 2011

The arrest of Syed Ghulam Nabi Fai by FBI is the first major earthquake in the politics of Kashmir in the last 124 years (since 1877). It is not the arrest of an individual but the credibility of the claim that the people of Kashmir were waging an indigenous resistance for their right of self-determination, in particular since 1990 has come under the international scanner.

My views on the right of self-determination, loss of liberty in Fai’s case and the understanding of the jurisprudence of Kashmir case date back to my College, University days when I used to write for Weekly Azan and other papers in Kashmir. I did not compromise my opinions in regard to the best interests of the people of Kashmir during my stay in AJK/Pakistan when my opinions brought me into a fatal conflict with Zia regime. I was booked for 5 years imprisonment and 10 lashes and later under MLR 53 for a death sentence. I persevered in my faith and am alive to write this column and have continued to advocate the right of self-determination.

The weaknesses in Fai’s case are more than one. First and foremost that has surfaced is the fact that many of his close friends, those he would strike a quid pro quo with, have started distancing themselves on one or the other explanation. It proves that all those who turned up at Fai’s treats were taking these invitations as pleasure trips with very little regard for the people of Kashmir.

The FBI Affidavit could have been very easily countered if there was a trace of evidence that his diplomatic work had the input of the Government of AJK under article 11 of the AJK Act 1974 or any input of the Government of Pakistan under article 257 of the Constitution of Pakistan. Under the interpretation of statutes the two Constitutional provisions could have been argued to cover his tracks. The preamble of the AJK Constitution (although authored by the Government of Pakistan) could have been extremely helpful. We could have linked the work with the universal character of the Kashmir case. I have always argued to move away from a bilateral bracket and agitate the universality of the UN resolutions on Kashmir. At the same time we could have asked the J & K Government to subscribe its interest in Fai’s arrest under article 4 and 48 of the J & K Constitution.

Unfortunately, even Fai with his exposure and resources failed to understand the Kashmir case. All that his work boils down is a quid pro quo with some powerful people in Pakistan and role of a conformist at the cost of people and habitat of Kashmir. A conformist always avoids to say no and as a natural consequence hurts the interest of the other. His arrest has hurt us as a people and we have become suspects all over the world.

The most difficult problem for Fai remains embedded in FBI affidavit. It may appear an arrest for “conspiracy to act as an agent of a foreign principal without registering with the Attorney General, and to falsify, conceal, and cover up material by tricks, schemes, and devices, in matters within the jurisdiction of agencies of the executive branch of the Government of the United States”, but in para 3 of the affidavit the matters turn grave when the FBI agent subscribes on oath that “Because this affidavit is for the limited purpose of setting forth facts sufficient to establish probable cause, it does not include all of the pertinent facts that I have learned in the course of this investigation”. We know that Fai has been on FBI radar for some time and had lawful court orders to record his communications.

What these “all pertinent facts” and “recorded communications” are could be either very simple to explain or may turn out to be explosive and may have a potential to net many other people living in USA, Pakistan, India, AJK, J & K and many other countries. The manner in which Fai has unfortunately conducted himself has been attributed to a Confidential Witness in Para 8 of the affidavit. This witness has provided information to FBI agents in 2005, 2006 and in 2010 “about a scheme in which he participated to obscure the origin of money transferred by the ISI to Fai to use as a lobbyist for the KAC in furtherance of the interests of the government of Pakistan”. This witness has explained “that money was transferred to Fai through an American citizen living in Pakistan by the name of Zaheer Ahmad”.

Circle of wisdom and freedom of expression has been made causality in Kashmir. A few officers in a section of establishment in Pakistan tried to rewrite history in Kashmir and rewrite the script for politics, militancy and diplomacy for the people of Kashmir. They did it out of arrogance and with a sense of superiority, believing that Kashmir was a colony of their little secrets. In the course of time we killed a generation in Kashmir and by causing a numerical deficit killed the right of self-determination. Men, women, children and elderly have been exposed to unprecedented violation of human rights and other abuse.

Lack of interest in the best interests of the people of Kashmir and lack of reliable understanding of Kashmir case – have continued as the main defects in the present struggle since 1990. No one among this elitist group had ever visualised that the three components namely, politics, militancy and diplomacy would enter rough seas if they were not backed by the UN mechanism on Kashmir, Constitutions of J & K, AJK and the Constitution of Pakistan.

Para 8 maintains that Fai accepted money from ISI ‘in furtherance of the interests of the government of Pakistan”. This allegation remains at war with Fai’s claim that he was acting in the interests of the people of Kashmir. No Kashmiri could act in furtherance of the interests of the government of Pakistan until the point identified by article 257 of the Constitution of Pakistan. Until then one has to advocate the freedom of choice at the time of a referendum. How Fai or his associates in the “scheme” could prepone the wisdom of article 257 of the Constitution of Pakistan is very difficult to understand. If this has been the case Fai and his associates could be accused of sabotaging the UN mechanism on Kashmir and hurting the principle of self-determination. It is also going to war against the principles laid down in AJK, J & K and the Constitution of Pakistan and the UN Security Council Resolution on Kashmir.

I should not be wrongly understood as advocating anti-Pakistan views. While in Pakistan I submit myself to article 5 of the Constitution of Pakistan which prescribes “Loyalty to State and Obedience to Constitution and Law”. This is an obligation for every citizen wherever he may be and of every other person for the time being within Pakistan. Fai has not only given up his right for a speedy trial, he has also never looked back for a re-check whether he has been conducting himself in accordance with the diplomatic wisdom provided in the preamble and article 11 of AJK Constitution, article 4 and 48 of the Constitution of J & K, article 257 of the Constitution of Pakistan and the UN mechanism on Kashmir.

It needs to be pointed out that the manner and kind of diplomatic work entrusted to Fai had nothing to do with enhancing the constituency of the best interests of the people of Kashmir and it has never touched the core fact that there was a UN mechanism on Kashmir. A valuable Kashmiri turned into a conformist and failed to interpret the relief available to the people of Kashmir under J & K Constitution and the terms of a bilateral agreement between the Government of Kashmir and the Government of India. With a proper understanding of the jurisprudence of Kashmir case and the resources made available to Fai, we could have succeeded to fix the liability for the death and destruction in Kashmir.

Fai made a choice at the cost of the best interests of the people and the jurisprudence of Kashmir case. His support base was myopic and driven by colonial instinct. Others had the conscience to say no and it really should have been a difficult task to argue the jurisprudence of Kashmir case before the full court (High Court) in AJK from December 1992 – April 1999 making Government of AJK and the Government of Pakistan as parties. I would advise the readers to read the judgment published in the Pakistan Yearly Law Reporter 1999 titled “Jammu and Kashmir Council for Human Rights v Azad Government of the State of Jammu and Kashmir and 4 others”.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations and can be mailed at

Dr S N Gilani
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