Chapter 5: Pakistan-Occupied-Kashmir,
Tashkent & The Shimla Agreement
of the right to self-determination has been conditional and circumscribed.
It is demanded of the part of Kashmir which escaped its occupation but
not its depredations The right of self-determination is not recognized
for Pakistan-occupied Kashmir (POK).
The Azad Jammu and Kashmir Interim Constitution
Act 1974 obliges all leaders from the President down and all legislators
to swear loyalty to the cause of accession of the state of Jammu and Kashmir
to Pakistan." Islam is the State religion (Article 3). The President and
Prime Minister must be Muslim. The right of freedom of association is restricted.
Article 7(2) says: No person or political party in Azad Jammu and Kashmir
shall be permitted to propagate against or take part in activities prejudicial
or detrimental to the ideology of the State's accession to Pakistan.
The Constitution was imposed on POK by the former
Prime Minister Z.A. Bhutto. Pakistan conveniently ignored the fact that
it is only in temporary charge of those areas under its occupation. In
its view it is the rest of the State which is disputed territory not that
part which it had grabbed.
Pakistan resents the expression Pakistan-occupied
Kashmir but freely talks of Indian-occupied Kashmir. Taking the UN resolutions
by which Pakistan .swears it would be clear that while the legality of
the accession of the State of Jammu and Kashmir to India was consistently
and explicitly accepted in those resolutions the expression Pakistan-occupied
Kashmir is derived from these very documents.
Let us take a close look at what the Security
Council did. On January 20, 1948 the Security Council set up a three-member
Commission. On April 21 1948 the Council not only expanded its membership
to five but laid down the details of a plebiscitary solution. A Plebiscite
Administrator was to be nominated by the UN Secretary General. Para 10(b)
said: The Plebiscite Administrator acting as an officer of the State of
Jammu and Kashmir should have authority to nominate his assistants ....
and to draft regulations governing the plebiscite. Such nominees should
be formally appointed and such draft resolutions should be formally promulgated
by the State of Jammu and Kashmir."
This is clear recognition of the legality of Kashmir's
accession to India, India's external .sovereignty over the State and the
legal authority of the Government of the State. Hence the formal induction
of the Plebiscite Administrator was to be made by the State Government
although he was to be nominated by the UN Secretary General. On August
13 1948 the UN Commission for India and Pakistan ( UNCIP) adopted a resolution
embodying its proposals for a settlement. India accepted it; Pakistan did
not. On December 11,1948 the UNCIP offered proposals in amplification of
the first to provide for a plebiscite. Both sides accepted it. They were
formally embodied in its resolution of January 5 1949.
While the tribesmen from Pakistan and Pakistan's
troops were to be withdrawn completely. India was to withdraw only the
bulk of its forces retaining some "to assist local authorities in the observance
of law and order". That was not the only asymmetry. The existence of the
Government of the State of Jammu and Kashmir was explicitly recognized
and so indeed was the State's accession to India and assumption of external
sovereignty. Accordingly the resolution provided that the government of
the State of Jammu and Kashmir will safeguard law and order and that human
and political rights will be respected.
For the other part of the State the resolution
said: '"Pending a final solution the territory evacuated by the Pakistani
troops will be administered by the local authorities under the surveillance
of the commission. This is in sharp contrast to the clear recognition of
the State Government acting under the Government of India in respect of
external relations. No surveillance was provided for this part of the State.
In utter disregard of the UN resolutions by which
it swears, Pakistan imposed a new regime on POK on June 21 1952. Rules
of Business were presented on October 28. Rule 5 said: The President of
Azad Kashmir Government shall hold office during the pleasure of the All
Jammu and Kashmir Muslim Conference duly recognized as such by the Government
of Pakistan in the Ministry of Kashmir Affairs. The Ministry's Joint Secretary
could attend meetings of the Council of Ministers and tender advice on
any matter under discussion. What are the legal implications of such a
set-up on POK which has existed for over four decades in flagrant breach
of the UNCIP's resolution?
The legality of Jammu and Kashmir's accession
to India was incontestable. Even so, India had agreed to a plebiscite in
1948. But among the prime causes which have rendered a plebiscite impossible
is Pakistan's annexation of POK. Its refusal to withdraw its forces from
the occupied territory and its policies towards the rest of the State.
The war of 1965 showed amply that Pakistan tried to grab the rest of the
State at its chosen forum, the battlefield, and failed. There was a cease-fire
followed by the Tashkent Declaration.
It is pertinent to recall that Clause (iii) of
the Declaration recorded thus: The Prime Minister of India and the President
of Pakistan have agreed that relations between India and Pakistan shall
be based on the principle of non-interference in the internal affairs of
each other. And Clause (iv) said: The Prime Minister of India and the President
of Pakistan have agreed that both sides will discourage any propaganda
directed against the other country and will encourage propaganda which
promotes the development of friendly relations between the two countries.
What did Pakistan do? Six years after this it
launched another war and it once again failed in its objectiveÑto
grab Kashmir by force. There was a meeting between the Prime Minister of
India and the President of Pakistan at Shimla and the talks resulted in
the Shimla Agreement. A look at the first six clauses
of the Agreement
reproduced below juxtaposed with the ground realities would show how Pakistan
has violated all these provisions.
The Prime Minister of India and the President
signing the Shimla Agreement.
Clauses (i) to (vi) of the Shimla Agreement are
(i) That the principles and purposes of the charter
of the United Nations shall govern the relations between the two countries.
(ii) That the two countries are resolved to settle
their differences by peaceful means through bilateral negotiations or any
other peaceful means mutually agreed upon between them. Pending the final
settlement of any of the problems between the two countries neither side
shall unilaterally alter the situation and both shall prevent the organization,
assistance or encouragement of any acts detrimental to the maintenance
of peaceful and harmonious relations.
(iii) That the prerequisite for reconciliation
good neighborliness and durable peace between them is a commitment by both
the countries to peaceful co- existence respect for each other's territorial
integrity and sovereignty and non- interference in each other's internal
affairs on the basis of equality and mutual benefit.
(iv) That the basic issues and causes of conflict
which have bedeviled the relations between the two countries for the last
25 years shall be resolved by peaceful means.
(v) That they shall always respect each others
national unity, territorial integrity, political independence and sovereign
(vi) That in accordance with the charter of the
United Nations they will refrain from the threat or use of force against
the territorial integrity or political independence of each other.
Pakistan ignored the Tashkent Declaration and
has violated almost all the six clauses listed above of the Shimla Agreement
to which it was a signatory. It has mounted a low cost covert operation
in Jammu and Kashmir. The POK has served as a launching pad for this aggression.
POK is firmly riveted to Pakistan's control through the Azad Jammu and
Kashmir Council. It is presided over by the Prime Minister of Pakistan
and comprises his five nominees the President and Prime Minister of POK
and six representatives of the POK Assembly elected by proportional representation.
Politically POK is a replica of Pakistan: Basic Democracy of Ayub Khan
and Gen. Zia's Martial Law. In December 1993 the blasphemy laws of Pakistan
were extended to the POK. The northern parts of the State have been dismembered
from the POK and their status as part of the state questioned. They are
ruled directly through a chief executive Lt. Gen. Mohammed Shafiq, appointed
by Islamabad with a 26-member Northern Areas Council. The people have never
seen elections or enjoyed human rights.
In contrast to the government in Srinagar the
regime in Muzaffarabad (POK capital) is one set up by Pakistan in territory
it has occupied not acquired by law.