Azad Jammu & Kashmir (hereafter ‘AJK’) is comprised of fragmented parts of the former princely state of Jammu and Kashmir. This princely state was ruled by Maharaja Hari Singh and, after India was partitioned into two states, India and Pakistan, and liberated from the British in August 1947, these princely rulers were given the choice to accede to any of the two dominions. This choice was to keep in view the religious composition and geographical contiguity of their state. Maharaja Hari Singh opted to accede to India on October 26, 1947, despite his state’s religious composition. A war broke out soon after between the two nations. India took the issue to the Security Council which, with the consent of India and Pakistan, resolved on January 5, 1949 to settle the issue through a plebiscite. However, this plebiscite has never taken place.
Prior to the instrument of accession being signed, a government in exile of Jammu and Kashmir was announced on October 5, 1947 in Rawalpindi and it was formally constituted on October 24 as an independent entity which would represent the entire state.[1] However, the Security Council when considering India’s complaint did not accept it as an independent government but as a ‘local authority’ in its resolution on August 13, 1948. Joseph Korbel, who was designated as a special representative for the Council, explained the Council’s resolution by stating that subject to surveillance of commission the local authorities will have full political and administrative control.[2] He further stated on September 2 that “we have gone as far as we could to meet the point of view of Azad Kashmir people. We have tried to deal with the de facto situation. But we cannot lose sight of the fact that the state of Jammu and Kashmir still exists as a legal entity. We have to respect its sovereignty.”[3]
Shortly after, a ceasefire agreement was brokered under the auspices of the UN Commission for India and Pakistan which established a ceasefire line through the state on July 29, 1949. However, the actual ceasefire took place on January 1, 1949 under the provisions of Part I of the Resolution of 23 August 1948.[4] This agreement practically divided and sealed the state’s fate. The Simla Agreement of 1972 then converted the “ceasefire line” into a “line of control”, thereby reaffirming the impression of it being an ‘unwritten division’ of the state.[5]
The Political Structure of AJK
The ceasefire agreement was followed by a tripartite agreement between the AJK government, its only political party (the All Jammu & Kashmir Muslim Conference) and the Government of Pakistan on April 28, 1949.[6] This formal legal document brought AJK under the administrative control of the state by regulating the powers of the AJK government and the Government of Pakistan which acted through the Ministry of Kashmir Affairs. This regulation was governed by the Rules of Business of 1950 which were amended in 1952 and 1958.[7] These Rules regulated the appointment of the President of AJK and its Council of Ministers. The President was to be elected by the general council of the All Jammu & Kashmir Muslim Conference and was recognised as such by the Joint Secretary of the Ministry of Kashmir Affairs. The Joint Secretary was replaced by the Chief Advisor under amended Rules of Business in 1958. His word was usually deemed to be final in governmental business.
This system was changed after 1960 when the AJK Basic Democracies Act was passed and instead the President was to be elected by the members of these basic democracies. In 1964, the Azad Jammu & Kashmir Government Act was passed and a state council was established consisting of eight members elected by basic democrats, of which one was nominated to be the Chairman by the Chief Advisor.[8] This Chairman would be ex officio the President of Azad Jammu & Kashmir. Meanwhile the council could make laws subject to the prior approval of the Chief Advisor.
This system was again changed through the Government Act 1968 and its amending legislation of 1969.[9] Now, the Chief Advisor was empowered to nominate four members of the state council from amongst state subject refugees which had settled in Pakistan for a term of five years. The Chief Advisor was empowered to suspend or dissolve the state council and declare an emergency.
Both the 1964 and 1968 laws were humiliating for the people of AJK as they placed the Joint Secretary and the Chief Advisor over the elected members and stalwart leaders of AJK. Due to resentment over these Acts by civil and political society, the Azad Jammu & Kashmir Government Act of 1970 was passed which, in my opinion, was the best law on the matter that AJK has ever had and could ever have.[10] It was based on a presidential system in which an Assembly of twenty-five members would have a tenure of four years. Except for defence, foreign affairs, communication, currency and the responsibilities of the government of Pakistan under UNCIP resolutions, all powers including tax collection were vested in the AJK government. Moreover, fundamental rights and the power to enforce them were vested in the High Court with the Board of Judicial Advisors becoming the court of appeal. The provision providing for the overriding authority of the Joint Secretary or the Chief Advisor was abolished. This was a much welcomed abolition.
The Current Position
The system of governance in AJK is invariably a replica of Pakistan. Similarly to how Pakistan switched to a basic democracy system in 1960, so was AJK, moreover, the AJK presidential system was made a parliamentary system in 1974 through the Azad Jammu & Kashmir Interim Constitution Act 1974 which followed the pattern of the Pakistani Constitution of 1973.
Under Article 21 of the Interim Constitution Act of 1974, the Azad Jammu & Kashmir council included three legislative bodies and two governments. The key features of this constitutional structure are as followed:
- The AJK council was established which was to be headed by the Prime Minister of Pakistan as its Chairman with five members of the Parliament to be nominated by the PM from amongst the Pakistani Parliament and six members to be elected by the AJK Assembly. The President of AJK would be its Vice Chairman, the Federal Minister for Kashmir Affairs is its ex officio member. It was vested with all the legislative powers on the subjects mentioned in the council’s legislative list including executive authority under those laws. It was both a legislative body and a proxy of the Federal Government of Pakistan.
- The Joint Sitting, comprising the AJK Assembly, the AJK Council and the Minister in Charge of the Council Secretariat was vested with similar authority to a Constituent Assembly for amendments of the Constitution and the authority of an electoral college for the election and removal of the President
- Residuary legislative powers, except defence, foreign affairs, communication, currency and UNCIP resolutions were vested in AJK’s Legislative Assembly.
- This Legislative Assembly consists of 45 members, 33 are elected from AJK’s territorial constituencies, 12 from state subjects refugees from occupied Jammu and Kashmir who were settled in Pakistan (six from each unit)
- The executive authority under the laws made by the Assembly is vested in the AJK government headed by the Prime Minister of AJK and his cabinet .
The thirteenth amendment Act to the Constitution was passed in 2018 which made significant departures from the original Act which had far reaching effects. Notably, more fundamental rights were added to the Constitution so that it could be at par with the Constitution of Pakistan, 1973. However, unfortunately, the legislative powers of the council were vested in the Government of Pakistan, not in Parliament, along with any executive authority thereunder. This stripped away the autonomy of AJK to its detriment. The AJK Assembly was also empowered to legislate on subjects listed in Part B of the council legislative list with the consent of the Government of Pakistan under Art 31(4).
The most paradoxical position created under the 13th amendment is divesting the council of all legislative and executive powers, but keeping its members and employees intact for a consultative role in respect to the matters and subjects mentioned in Article 31(3) and in respect of the responsibilities of the Government of Pakistan under UNCIP Resolutions. However, the council is practically redundant as no such consultative process has taken place since 2018 when the 13th amendment came into force but members and hundreds of employees of the council are enjoying pay privileges and perks equal to their counterparts in the Federal Government.
The financial powers of the council have been transferred to the AJK Assembly and the Government of Pakistan as the case may be. The power to amend the constitution has also been transferred to the AJK Assembly, instead of to the Joint Sitting, subject to a two third majority, but no amendment can be made to Articles 31, 33 and 56 without prior approval of the Government of Pakistan.
Finally, the power to elect and impeach the President is also vested in the Assembly instead of the Joint Sitting under Articles 5 and 6. However, a two third majority of the total number of members of the Assembly is required to remove the President.
Critical Analysis
Azad Jammu & Kashmir is neither an independent state nor a part of the provinces of Pakistan under its 1973 Constitution. Despite this, they are governed and regulated by the Government of Pakistan on a macro as well as micro level from Islamabad directly and via Muzaffarabad through federal bureaucracy, without adequate representation in policy decisions and the legislative and executive bodies of Pakistan. The cabinet division of Pakistan through two successive notifications[11] has directed that “although AJK is not a part of Pakistan within the meaning of Article 1(2)(d) of the Constitution, it should for all practical purposes be treated like any other province of the Federation”. It is treated like a province with all provincial obligations and duties, but without the rights, privileges and status of a province. The same is true of Gilgit-Baltistan.
All legislative and executive powers erstwhile vested in the council have been given to the Government of Pakistan through the 13th amendment, except for finance and audit, which are vested in the AJK Assembly along with their executive authority to the Government of AJK. Surprisingly, the composition of the council remains, including its employees and members, with all their pay, perks and privileges, without doing any work. This is a travesty of the constitution.
Moreover, twelve seats are reserved for state subjects in the AJK Assembly in the name of refugees from Jammu and Kashmir who are settled in Pakistan. These come with the same perks and privileges as territorially elected members, besides minister’s slots and a twenty five per cent quota in jobs and professional colleges. They also share the federal quota of jobs reserved for AJK residents besides having a right to share from the quota reserved for the province in which they are settled. This is problematic as the authority of the AJK assembly and the Government is restricted to the territories of Azad Jammu & Kashmir under its control under Article 2 of the constitution. Besides being unconstitutional, it is undemocratic, unjust and arbitrary as well to give the power of representation, lawmaking, governing and sharing twenty five percent of these quotas to those who neither reside in AJK nor are under its control and are not its tax payers. This breeds resentment against Pakistan as well as the establishment in AJK.
The Way Forward
Both AJK and Gilgit Baltistan currently suffer from an identity crisis and have gone through different political and administrative systems brought about by the Government of Pakistan. Both need to be turned into a cognizable political entity. Pakistan does not want to make AJK part of its territory or a province as it believes that it may adversely impact its stance over the Kashmir issue and would amount to violation of UNCIP Resolutions on Kashmir. However, it can be argued that internal governance in any manner does not change the status of a disputed territory until parties to the dispute agree to a dispensation. Internal governance is internal self determination pending resolution of the dispute for final determination. It is a violation of that right to keep the people of AJK’s democratic and civic rights in limbo. The nature of governance is a gradual process subject to change with the change of local or global concepts of governance. Pakistan has itself changed the internal governance of these territories from time to time as it felt expedient to do so .
In view of the changing global scenario, particularly the hegemonic expansionist designs of India under the leadership of Narendra Modi, it is strategically, economically and politically imperative to empower AJK & GB jointly or separately like they are provinces of Pakistan under the constitution with all the powers, authority and rights of other provinces of Pakistan. It can do so by keeping intact the disputed character of the territories pending the final resolution of the disputed state as a whole.
Sartaj Aziz’s committee report from March 10, 2017 on constitutional and administrative reforms in Gilgit-Baltistan, though it is only for Gilgit-Baltistan, provides a ray of hope for both the areas until the Kashmir dispute is resolved. I will conclude with paras 62 to 64 from the report:
“Although the Committee’s TOR’s are confined to Gilgit-Baltistan, it must be pointed out that there is a need for constitutional and administrative reforms in AJK. In addition, the recommendations of this Committee, to give representation to GB in the two Houses of Parliament, if implemented, would create further differentiation in the relative status of AJK and GB . It is therefore highly important to harmonise the reforms track of GB with that of AJK.
In this context it is encouraging to note that the Prime Minister during his visit to Muzaffarabad on 29 December 2016 approved the establishment of a five member Committee under the Minister for Law & Justice to “review the empowerment of the AJK Government on the analogy of provinces after the enactment of the 18th Amendment.’
It would therefore be prudent that the timing of implementing the recommendations to give Gilgit-Baltistan representation in the parliament of Pakistan is synchronised with constitutional reforms in AJK. The remaining reforms recommended in paragraphs 60 (e), (f) and (g) and 64 to 78 can be implemented straight away.”
Disclaimer:
The opinions expressed in the articles are those of the authors. They do not purport to reflect the opinions or views of the Research Society of International Law (RSIL), its editorial team, or its affiliated organizations. Moreover, the articles are based upon information the authors consider reliable, but neither RSIL nor its affiliates warrant its completeness or accuracy, and it should not be relied upon as such.
References
[1] The Constitution of Azad Jammu & Kashmir by Justice (r) Syed Manzoor Hussain Gilani, Jumhori Publications Lahore, page 1110
[2] See Security Council, United Nations Commission For India And Pakistan, Annexes To The Interim Report, S/llOO., 9 November 1948
[3] Clarification of the United Nations Commission’s Resolution dated 13th August, 1948 given by the Commission in writing and orally to the Pakistan Representatives
[4] The Constitution of Azad Jammu & Kashmir by Justice (r) Syed Manzoor Hussain Gilani, Jumhori publications Lahore, page 1116.
[5] Ibid, page 1158.
[6] ibid, page 1066
[7] ibid, pages 1176-1201
[8] Act No IV of 1964
[9] See The Constitution of Azad Jammu & Kashmir by Justice (r) Syed Manzoor Hussain Gilani, Jumhori publications Lahore, pages 1233-1243
[10] Ibid, pages 1246
[11] D.O. No 8/9/70 Cord -1 dated 11th May, 1971 and No.6/7/88-GC Dated 6th June 1988
