The Office of the United Nations High Commissioner for
Human Rights (OHCHR) recently released a fair and balanced human rights report
on Kashmir. Predictably, it has been dismissed with contempt by the Indian
Ministry of External Affairs. The report notes that India rejected access to
Indian administered Kashmir. Meanwhile, Pakistan made access to Pakistan
administered Kashmir subject to access being granted by India. Obviously, from
Pakistan’s perspective, we have less to lose than the Indians. Unlike their
side of the LOC, there is no independence struggle being waged on our side.
Though that doesn’t mean things are perfect either. Since neither side
cooperated, the OHCHR proceeded with remote monitoring.
Most of the report deals with India’s terrible and
outrageous human rights violations, including use of excessive force,
extrajudicial killings, arbitrary and unlawful detention — including that of
children, torture, use of pellet guns, enforced disappearances, violation of
the right to health, violation of the right to education, unconscionable
restrictions on freedom of expression, reprisals against human rights defenders
and journalists and sexual violence.
It points out special draconian laws such as the Armed
Forces (Jammu and Kashmir) Special Powers Act, 1990 and Jammu and Kashmir
Public Safety Act, 1978, which are used to obstruct the natural course of
justice and allow the security forces to carry out the aforementioned
atrocities with impunity. The Supreme Court of India upheld these laws as
constitutional. The section on India comprises damning allegations but the
Indian media has characteristically towed the national line. Even a staunchly
liberal journalist like Barkha Dutt dismissed the report as airy-fairy and
further alleged, incorrectly, that the report makes no mention of terrorism and
the armed groups active in Kashmir. In truth, however, the report has a whole
section dedicated to these armed groups, which are said to be operating out of
Pakistan and allegedly have ties with Pakistan’s security establishment. The
report also mentions crimes against Hindu Pundits, who are often targeted by
these groups.
The mood on the Pakistani side is almost triumphant. It is
almost as if we have taken all of Kashmir. Unfortunately, we are quite
mistaken, because while it is true that the report dedicates a much larger
space to Indian atrocities, it still does paint a rather unflattering portrait
of the events in Pakistani administered Kashmir.
The UN Resolutions we rely on, rightly, applies not just
to the territory known as Azad Jammu and Kashmir but also to Gilgit Baltistan
(GB). While it is true that the people of GB have long asked for their
constitutional rights within our federation, the Independence Act of India 1947
made the whole state of Jammu and Kashmir a princely state. So when read with
the UN resolutions, it is clear that the whole territory must be considered
one. It would be impractical to go into history and consider all competing
claims in this article; but this is the regions legal situation.
We must realise that
neither Pakistan nor India can take any more Kashmiri territory by force.
Therefore, it is time to dismantle the security infrastructures on both sides
beyond what is necessary
Here we must ask, if India agrees to a
plebiscite in accordance with the UN resolutions, would Pakistan allow it?
Given the investment that has gone into China Pakistan Economic Corridor
(CPEC), it seems quite unlikely that Pakistan would ever want to put itself in
any position that compromises its strategic position on the issue. At a
recent talk at Jinnah Institute, I aired an unpopular opinion which I will
repeat here. The Kashmir issue as we know it has already been resolved to
the detriment of the Kashmiri people. Both India and Pakistan are quite happy
with the status quo. Since the outside world is unwilling to intervene, nothing
is likely to change. Thankfully though, this report shows that the UN is still
interested at some level in fulfilling its mandate.
Coming back to the issue of our own
failings in Kashmir, the report says that despite a constitution and a
parliamentary form of government for the entity known as Azad Jammu and
Kashmir, with a President and a Prime Minister, the government is effectively
run by Islamabad.
Similarly, while most laws enacted by
Pakistan are applied to AJK through the AJK Adaptation of Laws Act 1988, AJK
has no representation in the Pakistani National Assembly. Therefore, the report
says that while AJK has trappings of a sovereign state, it is only nominally
independent, with power resting in AJK Council in Islamabad to override
decisions taken by the centre. The same situation exists in GB, which only
recently got its legislature. There are also restrictions in both regions on
the right to freedom of expression and political association. All members of
the legislatures have to take an oath supporting the accession of AJK to
Pakistan.
The report speaks of a violation of land
rights and forced dispossession. Furthermore, it points out that just like the
rest of Pakistan, the blasphemy law is in force. The report says that as with
the Constitution of Pakistan, Ahmadis have been declared Non-Muslims in Kashmir
as well and their religious ceremonies are criminalised in the same manner. These
provisions violate Pakistan’s own commitment to human rights. Therefore, the
situation on the Pakistani side of Kashmir does not present a rosy picture.
It is high time that Pakistanis and
Indians checked their overinflated national pride and actually come together to
resolve this conflict for the sake of common Kashmiris. All parties must come
to the table and realise that we reached a stalemate long ago.
What is needed is an out of the box
solution that preserves the spirit of self-determination while accepting ground
realities. First and foremost, we must realise that neither Pakistan nor
India can take any more Kashmiri territory by force. Therefore, it is time to
dismantle the security infrastructures on both sides beyond what is necessary.
For our part, we must ensure that our
soil is not used for the support of any armed groups. A political settlement
must also be pursued, which in my mind would run as follows. GB and
AJK’s autonomous units in the Pakistani federation must be given representation
in the National Assembly, and this must be made a permanent feature of the
Pakistani constitution.
On the Indian side, Article 370 should omit
subsection 3 from the Indian Constitution and Section 48 of Part VI of the
Constitution of Jammu and Kashmir. Once this is done, JK (Indian) and AJK
(Pakistani) should be allowed to enter a cultural union through a treaty
allowing for free movement of people, ideas and goods between the citizens of
these entities.
Simultaneously, Pakistan and India should
enter a pact declaring the Kashmir areas part of a no-war zone. This would
restore Kashmir’s cultural unity under shared sovereignty and would help end
the brutalization of its people. Kashmir could then act as a bridge between the
two South Asian behemoths and allow us to build a better future for the whole
subcontinent.
The
writer is a practising lawyer and a Visiting Fellow at Harvard Law School in
Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his
twitter handle is @therealylh
Yasser Latif Hamdani@theRealYLH
Published in Daily Times, June 19th 2018.
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