Distinguished Lectures

POK: Myths and Realities

  • Ambassador (Retd.) D. P. Srivastava

    By: Ambassador (Retd.) D. P. Srivastava
    Venue: Maharashtra National Law University, Nagpur
    Date: August 12, 2022

Dear Friends,

Recently, a series of protests were organized in Pakistan and POK to protest the deletion of article 370 by India three years ago. August 5 has been named Yom-e-Istehsal or the Day of Exploitation. Foreign Minister Bilawal Bhutto addressed a letter to the OIC. A rally led by the prime minister of POK Tanveer Ilyas was held in Muzaffarabad. The venue chosen was the UNMOGIP (UN Military Observer Group for India and Pakistan) office to underline the continued relevance of UN resolutions on J&K.

Pakistan’s continued hold on POK and Gilgit-Baltistan is a breach of UN resolutions it professes to uphold. The UNCIP resolution of August 1948 had asked Pakistan to withdraw from the territory occupied by it. The resolution was accepted by both India and Pakistan. Pakistan’s commitment to withdraw its troops from the state is expressly mentioned in Part II, operative paragraph A. 1 of the resolution which states that ‘….the Government of Pakistan agrees to withdraw its troops from that State.’

The operative paragraph A.2 in the same section of the resolution also obliged the government of Pakistan to use its best endeavor ‘…..to secure the withdrawal from the state of the tribesmen and Pakistani nationals not normally resident therein…’. Pakistan has instead consolidated its hold on the territory. Pakistan cites the UN resolutions asking it to withdraw its forces from the territory occupied by it as giving it the mandate to supervise the defense, foreign affairs, and currency and coinage of the POK.

What Pakistan calls ‘Azad Jammu and Kashmir’ is only 15% of the territory illegally occupied by that country. The Northern Areas constitute 85% of the territory. This has been under its direct administration since the beginning. Pakistan criticizes India for splitting the state of J&K into Union Territories of J&K and Laddakh. It had divided the territory under its control more than seven decades ago and absorbed the major chunk. The Northern Areas are now called Gilgit-Baltistan (G-B) to obscure their historical background.

The reason why Pakistan took over the Northern Areas is clear from the map. This is the most strategically important part of the Indian state of J&K. It touches Afghanistan at the Wakhan corridor – an artificial creation of the British to create a buffer zone between its Indian colony and the expanding Russian empire in the 19th century. This also touches China. CPEC enters Pakistan through the Northern Areas. So does the Indus which is the largest of the six rivers of this region.

The common narrative is that the Northern Areas were separated from POK under Karachi Agreement in 1949. This is one of the ever-changing versions of the truth as told by Pakistan. For the first 45 years, Pakistan did not admit the existence of such an ‘agreement’ or the fact that it had separated the Northern Areas from the POK. This came to light in the historic judgment delivered by POK High Court in 1993. The Court described the separation of the Northern Areas from the POK as a violation of the UN Security Council resolutions by Pakistan. Pakistan had changed the territorial status quo of the area without a plebiscite. This was the reason for keeping the so-called Karachi Agreement secret.

In fact, the separation of the Northern Areas took place even before the Karachi Agreement. Major Brown who led the so-called Gilgit rebellion on November 1 1947 mentioned in his memoirs that he handed over control of the territory to Pakistan’s political agent, who was a Tehsildar in the NWFP administration. The control of the territory was not handed over to the ‘Provisional Government’ of POK which had been declared by Sardar Ibrahim Khan about three weeks earlier. Pakistan had brought 85% of the country occupied by it under its direct administration in 1947 only.

Major Brown was a British officer who headed Gilgit-Scouts which had come under the State of J&K a few months earlier. There is hardly a parallel in the annals of history where a representative of a colonial power led the freedom struggle. This was of course not an indigenous struggle. It was a parting gift of the British to Pakistan. Brown was later decorated by the British government.

POK or ‘Azad Kashmir’ was never recognized by the UN as having a ‘Government’. It was only called a ‘Movement’. Interestingly, even Pakistan did not recognize its creation. Sir Zafarullah Khan, Pakistan’s Foreign Minister told the UN Commission on India and Pakistan (UNCIP) that ‘…even his own Government had not granted legal recognition to the Azad Movement in view of the implications that might ensue…’ India’s reaction could not have been the reason for Pakistan’s hesitation in recognizing it. The two countries were already at war. Pakistan’s reason was different. It did not want that the territory received international legal recognition, which would have made it difficult to absorb this territory later.

There is a conventional view that India dragged its feet after promising the plebiscite. It was Pakistan that refused the plebiscite whenever a formal proposal was made. The plebiscite was formally proposed on three occasions – 1947 when Mountbatten proposed an UN-supervised plebiscite in J&K during his visit to Lahore on November 1, 1947. Alan Campbell Johnson in his memoirs Mission with Mountbatten has recorded that Jinnah did not accept the proposal for an UN-supervised plebiscite which has since become Pakistan’s official position. In 1950, Owen Dixon, the UN mediator offered a regional plebiscite. He has recorded that India was willing to consider it, but Pakistan rejected it on the ground that this was a departure from the idea of a single plebiscite. However, Owen Dixon reported to the UN in the same paragraph that he was given the impression that Pakistan will accept the partition of the State provided it got the Valley. Thus, the idea of a single plebiscite was simply an excuse; Pakistan was willing to abandon it provided it got the valley without a vote.

In 1953, the plebiscite was bilaterally agreed upon in Nehru-Bogra talks. The episode has special relevance as it was just after the sacking and arrest of Sheikh Abdullah. Bogra wrote a letter to Nehru on 1st December 1953 going back on the commitment he had made three months earlier. The stated reason was the same as Pakistan had cited in 1950. This lacked credibility. As I explained earlier, Pakistan was willing to abandon the idea of a single plebiscite provided it got the Valley. What was the internal compulsion Pakistan faced in rejecting the plebiscite three times? It was conducting a military operation to quell the Sudhan revolt which lasted for almost a decade. The revolt had started after Pakistan sacked POK’s first President Sardar Ibrahim Khan in April 1950. I have given the details in my book "Forgotten Kashmir: The Other Side of the Line of Control’. I have also summed it up in a brief article ‘Why Pakistan rejected plebiscite’, which was published by the Hindustan Times on the second anniversary of the deletion of article 370 last year.

The Northern Areas were run on the basis of dreaded FATA laws applicable to Federally Administered Tribal Areas in the NWFP province. POK was run on the basis of the Rules of Business issued by Pakistan’s Ministry of Kashmir Affairs. Both lacked representational government for long years.

The 1964 elections in POK, as in Pakistan, were held on the basis of a very limited franchise. Even in these sham elections, the founder Chairman of the Muslim Conference Chaudhary Ghulam Abbas was not allowed to participate. The first election on the basis of the universal franchise was held only in 1970.

POK was given an ‘interim constitution’ only in 1974. The constitution vested all the legislative and executive powers in the Council headed by Pakistan’s prime minister, rather than the elected assembly. This was a rule by proxy. The definition of ‘state subject’ was kept deliberately vague. On the other hand, there is a provision defining who is a Muslim. This declared Ahmadiyas as non-Muslims. If Sir Zafarullah Khan who argued Pakistan’s case on Kashmir in the UN Security Council were alive, he would have been considered a non-Muslim in POK. The constitution expressly states that no party or individual will be allowed to question the ideology of the POK’s accession to Pakistan. Self-determination is substituted by pre-determination in favor of accession to Pakistan.

The definition of ‘state subject’ in the POK constitution is based on the notification of 1927 issued by Maharaja’s government with some important caveats attached to it. It states ‘State Subject’ means a person for the time being (Emphasis mine) residing in Azad Jammu and Kashmir or Pakistan (Emphasis mine)’ as defined in the State’s notification of April 1927 ‘as amended from time to time.’ This loose definition leaves open the scope for an influx of people into POK from outside the territory. Moreover, it is unclear what are the amendments, when were they made and who authorized them. Immigration and citizenship were to be decided by the Council headed by Pakistan’s prime minister. This legal regime could not have been better designed to facilitate a change in demographic composition.

In the case of Northern Areas or Gilgit-Baltistan, the impact is felt even more because of its relatively smaller population. This is also the only territory under Pakistan’s control that has a small Shia majority. Extensive construction work has already resulted in an influx of workers and small businesses from outside. The area witnessed large-scale sectarian violence during Zia’s time. The army played a dubious role. The Special Services Group was headed by Musharraf, a Brigadier at the time. The sectarian violence again flared up in 1999 and 2005.

Pakistan’s rule by proxy over POK through the Council headed by Pakistan’s prime minister attracted considerable criticism. Under the 13th amendment in 2018, the Council was relegated to an advisory role. But its powers were not transferred to the elected assembly. Legislative powers over 32 subjects are now exercised directly by Pakistan. The elected assembly needs Pakistan’s approval even in the case of 22 subjects on which it can legislate.

While POK has a ‘constitution’ at least in name, Gilgit-Baltistan is run on the basis of ‘Orders’ issued by Islamabad. The Gilgit-Baltistan Order of 2009 gave limited powers on 61 subjects to the legislative assembly. This entire list has been abolished under the Gilgit-Baltistan Order of 2018. The copies of the Order were torn up in the presence of Pakistan’s prime minister Shah Khaqan Abbasi. The territory’s Supreme Judicial Council set aside the G-B Order of 2018. Pakistan appealed to Pakistan’s Supreme Court, which sided with Islamabad and restored the Order against which the people were protesting.

During the course of the election campaign in POK in 2021 and Gilgit-Baltistan in 2020, the then prime minister Imran Khan made promises which have never been delivered. In the case of POK, he offered an ‘independence option’. But the pathway chosen would have made them even more dependent on Pakistan. He suggested a two-stage referendum. In the first stage, the people of the POK will have to vote for joining Pakistan. Thereafter, they were to be given the choice to become independent. The ‘independence’ option is ruled out under the POK constitution. Parties or individuals suspected of favoring this option are not even allowed to participate in elections. The territory is at least ‘Azad’ or free in name at present. Once it has joined Pakistan, it will become even more difficult to exercise this option.

Prime Minister Imran Khan promised to give Gilgit-Baltistan a ‘provisional provincial status’. Pakistan has not done this so far. This would be a violation of the UN resolutions which Pakistan professes to uphold. There is no particular advantage to Pakistan. The territory is already treated as part of Pakistan. The head of the government of G-B is called the chief minister as in provinces of Pakistan. This is different than the case of POK, where the head of the executive has a rather grand title of prime minister. There is though a difference between G-B and Pakistan’s provinces. The people of the territory do not have representation in Pakistan National Assembly.

Constitutional and political control is supplemented by economic exploitation. The chief economic resources of POK and G-B are connectivity and water. Strategic highways are under Pakistan’s control. POK receives Rs.0.15 per unit as the water usage charge, while it is denied hydro-power royalty of Rs. 1.10 per unit which is paid to Pakistan’s provinces like Punjab and Khyber-Pakhtunkhwa. This discrimination where POK and G-B get 1/7th of what is paid to Pakistan’s provinces is justified on the ground that they are not part of its territory under Pakistan’s constitution. This ignores a basic norm of international life. Countries pay for goods and services even though they may originate from outside their legal jurisdiction.

Both POK and G-B suffer from a democratic deficit. As mentioned earlier, for the first 23 years of its existence, POK was run on the basis of executive fiats issued by Pakistan’s Federal government. The first assembly elected in 1975 under POK’s ‘Interim’ constitution was dissolved in 1977 as a result of ‘persuasion’ by General Zia. There were no elections between 1977-1985. When the elections took place, they were ‘party-less’. The POK chapter of PPP boycotted the elections. JKLF which was used by Pakistan to start a campaign of violence on the Indian side in the 90s has never been allowed to participate in elections in POK.

The internal story of POK and G-B is very different from Pakistan’s stated positions abroad. Ghulam Ishaq Khan, as Cabinet Secretary issued an internal directive in 1971 to all the Federal government Ministries to treat POK as ‘any other administrative unit’ of Pakistan. In this, he was only echoing the views of President Yahya Khan. In course of time, he himself would become one of Pakistan’s most powerful presidents. Pakistan criticizes India for undermining J&K’s autonomy and treating J&K as part of India. Bhutto made a candid confession in the Pakistan National Assembly debate on Simla Agreement that UN resolutions did not support Pakistan’s position on Kashmir. There is not enough time to go into details.

There are other aspects of the narrative built by Pakistan and her apologists, which have unfortunately crept into a lot of literature on J&K. For instance, Pakistan’s hold on POK is justified with reference to the term ‘local authority ’ mentioned in the UNCIP resolution. This is a subtle distortion. The UNCIP resolution itself is rarely quoted in Pakistan’s official position because it had asked Pakistan to withdraw all its troops from that territory. Pakistan’s preference is to cite the UNSC resolutions of the 50s when the Cold War and the western backing had given a pronounced slant to decisions of the Council. What about the UNSC resolutions of 1965, 1971, and 1998? What are their implications for the J&K issue? How will China’s deepening involvement in CPEC affect the people of G-B? What is the intricate electoral mechanism devised by Pakistan which invariably ensures the victory of the party in power in Islamabad in elections in POK and G-B? Does the right to self-determination apply to J&K? It is not mentioned in any of the UN resolutions on J&K. How has this right been applied in contemporary situations elsewhere? Unfortunately, we do not have time to go into these issues which have an enormous contemporary relevance. These are covered in my book Forgotten Kashmir: The Other Side of the Line of Control. Incidentally, the book is almost entirely based on Pakistani, UN, and international sources.

I hope you will re-visit some of the narratives on the J&K issue which Pakistan has subtly encouraged in the light of what we have discussed today. Pakistan’s claim on J&K never had a basis in international law. For much of their existence, POK and Northern Areas now called G-B did not have elections. Now they have elected assemblies and governments, but with very little power. In the meantime, Pakistan has continued to hold the territory it grabbed illegally in violation of UN resolutions.

Disclaimer:- The opinions/views expressed in the Lecture are author’s own and do not represent the views of the Ministry of External Affairs.

D.P.Srivastava
14.8.2022
(Former diplomat and author of Forgotten Kashmir: The Other
Side of the Line of Control)

Disclaimer :-The opinions/views expressed in the Lectures are author's own and do not represent the views of the Ministy of External Affairs.