Sunday, 9 August 2015
AJK - Asking for the moon, Tariq Naqash
After its liberation in October, 1947, the 13,297 sq km territory of Azad Jammu and Kashmir (AJK) remained without a proper constitution for over two decades. However, as it draws close to the 68th anniversary of liberation, the region still remains at the crossroads in its struggle for constitutional reforms aimed at empowering the government and institutions for the benefit of the public at large, to which they are answerable and accountable.
At the same time, there have also been serious voices calling for reshaping the region’s relationship with Pakistan albeit as a provisional arrangement until the final disposition of the entire state of Jammu and Kashmir.
On October 24, 1947, a ‘revolutionary’ government was installed in this territory as Azad Government of the State of Jammu and Kashmir, with Sardar Mohammad Ibrahim Khan as its founding president.
According to the United Nations Commission for India and Pakistan (UNCIP) Resolution of August 13, 1948, the territory of AJK is to be administered by the “local authority” under the Commission’s scrutiny.
Constitutional confusion has a detrimental effect on governance
Although the liberated territories of the State are not expressly named in the Constitution of Pakistan, it states that Pakistan’s territories include “such States and territories as are or may be included in Pakistan, whether by accession or otherwise.”
Though both AJK and Gilgit-Baltistan are territories “otherwise included” in Pakistan under the UNCIP Resolutions, Pakistan has however always treated the State of Jammu and Kashmir as a disputed territory, and that’s why the liberated territories of the erstwhile princely state are not declared as part of the Federation of Pakistan.
This is also why Article 257 of the Constitution of Pakistan 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.”
Experts say that it also suggests, inter alia, that AJK should have a government enjoying internal autonomy.
Nevertheless, for a long time the affairs of AJK were practically run by the ministry of Kashmir affairs, which was established in March 1949. There was no proper constitution and no democracy, and even though the region used to have a President it was in effect the ministry of Kashmir affairs that called the shots. The ministry would nominate AJK president (chief executive) on the “recommendation” of the working committee of Muslim Conference, then the sole political party on this side of the divide. The removal of the president was also done apparently in line with the recommendation of the same forum.
Basharat Ahmed Shaikh, a retired judge of the AJK Supreme Court, recalls that in the early days of AJK, even demanding better treatment for its citizens or equal salaries for its officials, or asking a better physical infrastructure, was considered an anti-state activity.
“A pamphlet written by me in 1964, merely inviting the attention of concerned quarters drew the wrath of the Pakistani authorities so much so that I was incarcerated in the infamous Dalai interrogation centre for several months,” he recalls.
However, the situation started improving in the late 1960s and early 1970s as the AJK people and their leadership continued their struggle for a proper constitution and governance setup.
The first formal Constitution was drafted in 1970 and is commonly referred to as Act 1970. It was under the same constitution that presidential and Legislative Assembly elections were held for the first time on the basis of adult franchise.
All executive powers and the corresponding legislative powers were vested, respectively, in the President and the Legislative Assembly except in respect of defence and security, currency and the external affairs. The Assembly was also empowered to amend the said Act.
In 1971, the Assembly affected an amendment in that Act, without having to seek prior permission of the government of Pakistan, and gave fundamental rights to the people, writ jurisdiction to the High Court and established an Apex (appellate) Court.
Not only were the powers to appoint judges to the superior courts vested in the AJK President, the subjects of foreign trade and foreign aid were also in the domain of the AJK government, raising the profile of its internal autonomy.
However, in 2015, 45 years after the promulgation of Act 1970, the region faces retrogression to post-1970 days, thanks to the Interim Constitution Act, 1974 that is in force today.
The new Constitution introduced a parliamentary form of government, but drastically curtailed the powers of the government in Muzaffarabad.
“There is no denying the fact that Act 1974 reversed the progress towards empowerment of the people and their government in this territory,” says senior lawyer Raza Ali Khan, also a former president of AJK Supreme Court Bar Association.
And there are good reasons to subscribe to his notion.
Under the Act 1974, a new institution was established by the name of AJK Council “to serve as a bridge” between the governments in Muzaffarabad and Islamabad.
Prime Minister (chief executive) of Pakistan heads it as chairman, while the Federal Minister for Kashmir affairs happens to be its in-charge minister.
Practically this institution has besmirched the representative character of the AJK government by divesting it of many powers that it enjoyed under the previous constitution.
For example, the Council has powers to legislate about 52 subjects. The AJK Department of Inland Revenue, AG Office and the Directorate General of Audit fall under the administrative control of Council. Besides, it enjoys authoritative role in the appointment of AJK high and supreme courts judges and the chief election commissioner.
The Council comprises six members elected by the AJK Legislative Assembly and as many nominated by the chairman (Pakistani prime minister) from the Parliament of Pakistan. The elected members are toothless as far as functions of the Council are concerned, because all powers are vested in the chairman, most of which are exercised on his behalf by the federal minister in charge.
Ironically, neither the chairman nor the in-charge minister is answerable to the AJK institutions, because none of them takes oath under the AJK Constitution that grants them these positions.
“The Prime Minister of Pakistan exercising full authority in AJK is a violation of the Constitution of Pakistan,” maintains retired justice Shaikh.
“I have been actively associated with the Pakistan Movement since the age of 11 years. I still look up to Pakistan with the same reverence, but this does not change the fact that the Prime Minister of Pakistan is not the representative of the people of AJK; nor is he answerable to them: he is not even responsible to the institution he is heading as chairman,” he adds.
The Council retains 20 per cent of the income tax generated from the AJK territory as well as entire license fees collected from the telecom companies operating in AJK. The remaining 80 per cent of income tax is given to the AJK government as a grant.
There has always been a lot of hue and cry against alleged corruption in the Council, but that has always turned out to be a cry in the wilderness. Neither the people at the helm in Pakistan nor the otherwise hawkish media has ever bothered to take stock of this.
“The overwhelming feeling among the Kashmiris is that the Council is drastically hampering the ability of the elected government in Muzaffarabad to take key decisions regarding finance, public policy and socio economic development,” says Tariq Masud, a former bureaucrat who now heads a nongovernmental organisation — Centre for Peace, Development and Reforms (CPDR).
“Equipping the AJK Council with legislative, executive and financial powers is by no means justified or warranted. The way this institution controls important subjects has marginalised the powers of AJK government over the area’s affairs,” he maintains.
“In fact, it leaves AJK with little autonomy or status.”
In October 2009, the then Prime Minister Syed Yousuf Raza Gilani announced in Muzaffarabad to constitute a committee to review and suggest long due reforms in Act 1974. But the announcement did not see the light of the day despite reminders from here.
Meanwhile, with the passage of 18th and 19th constitutional amendments in Pakistan that handed more authority to provinces in their resources, AJK hopes were rekindled regarding empowerment of the region and its institutions on the same pattern.
However, people are yet to see any glimmer of light at the end of the tunnel.
In January 2011, CPDR held a first formal roundtable of stakeholders from all shades of society for an appraisal of the existing arrangements between Muzaffarabad and Islamabad and deliberations on the possible constitutional reforms.
“In fact people believe and rightly so that the existing interim Constitution has undermined the status of the AJK government, virtually rendering it as an ineffective and impotent body with no executive powers,” maintains analyst Ershad Mahmud, also an office bearer of CPDR.
In mid-2012, the then federal minister for Kashmir affairs Mian Manzoor Wattoo invited Kashmiri leadership for an inconclusive “discussion” on constitutional reforms and around same time a special parliamentary committee was also constituted by the AJK government to recommend suitable reforms.
The committee, including eight members from the Assembly and one from the Council, tabled its “recommendations for the amendments” in the Assembly on June 23 this year, almost three years after its formation.
Though the recommendations are not ideal in the eyes of many, at least they address some of the concerns, as they include, among other things, transfer of all powers, currently exercised by the AJK Council, to the AJK government, except for the responsibilities of Pakistan government under the UNCIP resolutions.
However, as the saying goes there are many a slip twixt the cup and lip.
On June 24, Matloob Inqilabi, AJK minister and head of the committee, told media that the recommendations were approved by the Assembly and forwarded to the AJK Law Department to be presented in the Assembly in shape of a bill.
But so far there seems to be no progress, mainly because of restrictions in the Act on making amendments about the issues related to the government of Pakistan.
Section 33 of Act 1974 says (though) the provisions of this Act can be amended, but no amendment can be made in section 33, section 31 and section 56 ‘without prior approval of the government of Pakistan.’
Section 31 restricts the Assembly and Council from making any law concerning the responsibilities of the government of Pakistan under the UNCIP Resolutions; the defence and security of AJK; the current coin or the issue of any bills, notes or other paper currency; or the external affairs of AJK including foreign trade and foreign aid.
Whereas section 56 says that nothing in Act 1974 shall derogate from the responsibilities of the government of Pakistan in relation to the matters specified in section 31 or prevent the Government in Pakistan from taking such action that it may consider necessary or expedient for the effective discharge of those responsibilities.
The AJK law department itself appears to be at sixes and sevens on the issue.
“Since the recommendations were made by the committee comprising members of both houses, it should have been endorsed by the joint sitting,” maintains law secretary Idrees Abbasi.
“However, we have prepared the draft bill, which will be sent to the cabinet for a decision,” he adds. “After that the bill will be sent to the government of Pakistan, through the ministry of Kashmir affairs, for its approval. Only after that approval, it can be tabled in any of the two houses,” says Abbasi.
And that stage seems to be about who’ll bell the cat.
“Since the recommendations by the parliamentary committee fetter the arbitrary powers of the prime minister of Pakistan and federal minister, no wonder the government in Muzaffarabad is bereft of the hardihood and determination to actualise the common desire for constitutional reforms,” says lawyer Raza Ali Khan.
“Those who are running a parallel government in AJK from Islamabad through the AJK Council, spending and squandering the resources of Kashmiris without any fear of accountability, would never let this move succeed,” he adds.
One school of thought believes that the stumbling blocks to constitutional reforms in AJK actually stem from region’s non-representation in Pakistani institutions.
Syed Manzoor Hussain Gillani, a former acting chief justice of the AJK Supreme Court, leads this school of thought from the front.
“The government of Pakistan should ensure full-fledged constitutional, political and representational rights to the people of the liberated territories of the State of Jammu and Kashmir on the pattern of other provinces,” he pleads, referring to AJK and GB.
Administered by Pakistan, these liberated territories (AJK and GB) are subject to all the liabilities and duties of a province, but not entitled to the rights of a province, guaranteed to the four provinces by the Constitution of Pakistan, he regrets.
“It is the future status of these territories that is in dispute, and not the rights of the territories and the people living therein.”
From the platform of his Association for the Rights of People of Jammu and Kashmir (ARJK), Mr Gillani stresses that AJK and GB should be given de-facto status of a province with provisional representation in the Parliament and institutions established under the Constitution of Pakistan, such as the Council of Common Interests (CCI), National Economic Council (NEC) National Finance Commission (NFC) and Indus River System Authority (IRSA), etc.
Interestingly, in its manifesto for the 2013 general elections, PML-N had declared that it technically considered AJK and GB as provinces, equal to Punjab, Sindh, KP and Balochistan.
In the same context, it had pledged that the functions, responsibilities and financial powers of AJK and GB will be gradually brought at par with the provinces and their legislative assemblies will be empowered.
However, more than two years on, Prime Minister Nawaz Sharif has not found time to honour that commitment, even though Raja Farooq Haider, his party’s president in AJK, has always vociferously opposed the Council in its present form.
The status quo is multiplying frustration in the region.
“If Pakistan is our elder brother, as we hear most of the time, it should feel contented with our empowerment, at least on a par with its federating units if not more than them … After all we are not crying for the moon,” says analyst and civil society activist Khizar Hayat Abbasi.
“At the moment, we are being made to believe that the vested interests in Islamabad are hell-bent on perpetuating the status quo — to continue to keep us impuissant and dependent.”
Published in Dawn, Sunday Magazine, August 9th, 2015