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
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