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.
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.”
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
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