Chapter 5: Pakistan-Occupied-Kashmir, Tashkent & The Shimla Agreement

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.

SHARP CONTRAST

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.

SHIMLA AGREEMENT

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.

Clauses (i) to (vi) of the Shimla Agreement are as follows:

(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 equality.

(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.

COVERT OPERATION

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.