by Anam Zakaria
Tension between East and West Pakistan had been brewing since the late 1940s; the fault lines further deepened in the 1950s, when the language movement intensified. There was a strong desire in East Pakistan to declare Bengali, the language of about 54 per cent of Pakistanis, as one of the state languages.44 The father of the nation, Muhammad Ali Jinnah, however, had held another vision and had already rejected this appeal, declaring, ‘…the state language of Pakistan is going to be Urdu and no other language… Without one state language, no nation can remain tied up solidly together and function.’45 As political and economic grievances grew in East Pakistan, the populations there felt increasingly isolated. Hostility towards West Pakistanis began to fester, with the elections of 1970 serving as the final blow. Contested between Zulfikar Ali Bhutto of the Pakistan Peoples Party and Awami League’s Mujibur Rahman, the results showed a clear victory of the East Wing. However, West Pakistan refused to hand over power. As tensions and animosity between East and West Pakistan escalated, Operation Searchlight was launched in March 1971 by the Pakistani Army to contain Bengali nationalism. The widespread opinion by this time was that India was working hand-in-hand with the Bengalis to create division and conflict in Pakistan. Soon, the two hostile states collided head on and the third Indo-Pak war was launched, with grave repercussions for Kashmir.
According to the book Kashmir’s Right to Secede: A Critical Examination of Contemporary Theories of Secession by Matthew J. Webb, as India came out in open support of ‘the Mukti Bahini rebels in East Pakistan in late November 1971… Pakistan attacked India (in response) on 3 December 1971, sparking a fourteen-day war. Although the war was not fought directly over Kashmir, much of the fighting occurred there.’46 A major battle was fought in the Chamb sector of Kashmir in which Pakistan made significant gains, in the hopes of cutting India’s communication link with Kashmir.47 However, General Iftikhar Janjua, who was commanding the 23 Infantry Division and had succeeded in capturing Chamb, with plans of going forward to attack across the Tawi River, was killed in action when his helicopter crashed.48 Some of the people I spoke to in the army circles attributed the last-minute change in command, as a result of General Janjua’s death, as one of the reasons why the successes were halted. By the end of the war, Pakistan had lost parts of territory in areas like Kargil, Tithwal, Uri and Poonch (Kashmir).49
Significantly, by mid-December 1971, Pakistan had also lost the war in East Pakistan. On 16 December 1971, the Pakistan Army’s surrender took place, leading to the break-up of East and West Pakistan and the creation of Bangladesh. In the aftermath, the operations in Kashmir were also aborted. Not only were thousands of Pakistani soldiers held captive as Prisoners of War (POWs) in India, the nation had also received a psychological, emotional and material setback, leaving it unfit to maintain a substantial war elsewhere.
However, the impact of the 1971 conflict was felt in Kashmir not only during the actual war itself but in the aftermath too. In the wake of the surrender, in 1972, Pakistan and India signed the Simla Agreement. The agreement was going to cast a shadow over the Kashmir conflict for years to come. A colonel I spoke to in Lahore explained that since the signing of the Simla Agreement, India has claimed that all outstanding issues between India and Pakistan, including Kashmir, can only be resolved through bilateral talks. ‘Pakistan was in a vulnerable position. We had lost the war in East Pakistan, there was a stalemate in West Pakistan, 90,000 Pakistanis were POWs, and we were on a weak footing. Given the circumstances, Mr. Bhutto (Zulfikar Ali Bhutto, under whose leadership the agreement was signed) did the best he could. India intelligently used the situation to restrict us to bilateral discussions on Kashmir. This meant that though the UN charter, which governs the Kashmir dispute, could still apply, India and Pakistan were first and foremost meant to negotiate the Kashmir issue through mutual dialogue. Since then, whenever Pakistan has wanted to raise the issue at the UN, India has said it’s a bilateral issue. This weakened our position and strengthened theirs.’
Over the years, while Pakistan has clung on to the UN resolutions, demanding that India carry out a plebiscite, India has evoked the Simla Agreement to justify its position. As the book, Regional and Ethnic Conflicts: Perspectives from the Front Lines, states: ‘India has claimed that the Simla Agreement excluded the mediation of the UN in the Kashmir dispute and that UN resolutions consequently have been sidestepped and cannot provide a basis for settlement.’ To back up its argument, India used Article II of the Simla Agreement, which states that India and Pakistan ‘are resolved to settle their differences by peaceful means through bilateral negotiations’.50
The article reads:
That the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by 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.51
Another clause states:
In Jammu and Kashmir, the line of control resulting from the ceasefire of 17 December 1971 shall be respected by both sides without prejudice to the recognized position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations. Both sides further undertake to refrain from the threat of the use of force in violation of this line.52
While Zulfikar Ali Bhutto is still celebrated as one of the most popular leaders in Pakistan’s history, many in ‘Azad’ Kashmir see the signing of the Simla Agreement under his leadership as a moment of utmost capitulation. This is ironical because Bhutto’s rise as a populist leader is in fact linked to the Kashmir movement. Advocating hardline and confrontational policies towards India, Bhutto had stirred public sentiment in favour of Kashmir’s independence and directed the 1965 war as foreign minister. Using anti-India rhetoric in his politics, he garnered popular support in the country. However, the same politics that resulted in his swift rise to fame and power also led him to engage in decisions that people in ‘Azad’ Kashmir denounce. By agreeing to respect the LoC, ‘Azad’ Kashmiris feel that Bhutto decided to accept the status quo as the solution to Kashmir, which was unacceptable to those in AJK who believed that a final decision on the fate of J&K could only be reached when a plebiscite took place. Moreover, the Simla Agreement also meant that Pakistan could not evoke any international support for the cause of self-determination in Kashmir. For whenever it has tried, India has pointed towards the Simla Agreement and claimed that ‘its earlier pledge on the plebiscite has effectively been made void and (she) no longer accepts any idea of international intervention into the Kashmir issue’.53 Further, ‘Relying on the status quo, India is firmly entrenched in the position that Kashmir is an integral part of itself and denies that it is a disputed territory.’54 The agreement on bilateral negotiations has also meant that the voices of the Kashmiris on both sides have further been sidelined, their wishes usurped by the two big nations it is squeezed between.
‘Azad’ Kashmiris tell me that the Simla Agreement also paved the way for a 1974 Act.55 This 1974 Act serves as the interim constitution of AJK, one that Kashmiris feel ripped away any semblance of their power and autonomy. Prior to this Act, Kashmiris in AJK had demanded an elected government, which would give them the right to decide their own affairs. As a result of the repeated martial laws in Pakistan since the late 1950s, democratic activity in AJK was curbed. When President Ayub Khan took over government in Pakistan through a coup d’état in 1958, all political activity was banned in Pakistan and Kashmir. In 1959, Ayub Khan also dismissed the government of Sardar Ibrahim in AJK,56 the founder-president of ‘Azad’ Kashmir, and replaced it with a new government. Ayub Khan further introduced a system of basic democracies, under which the president of AJK would be elected indirectly through various elected local bodies.57
Desperate
for autonomy, in the late 1960s, an alliance of political parties in Kashmir rebelled against the Ministry of Kashmir Affairs and Northern Areas (later known as the Ministry of Kashmir Affairs and Gilgit-Baltistan),58 setting off an agitation across the region. The ministry, which was set up in 1949 to oversee the relationship between Pakistan and Pakistan-administered Kashmir, had begun to control Kashmir affairs from Islamabad. Frustrated by the lack of freedom, violent protests were held in Muzaffarabad, demanding ‘an elected and responsible government, with an elected president, legislature and full powers of legislation, including the power to approve the state’s budget’.59 The result was the Azad Jammu and Kashmir Act 1970, which sanctioned a democratic set-up to be established, allowing the people of ‘Azad’ Kashmir and the refugees from Indian-administered Kashmir (from the 1947-48 and 1965 wars) to elect the legislative assembly and the president of AJK for the first time.60
According to Ershad Mahmud, who since the 1990s has been writing about the Kashmir conflict, with particular focus on Pakistan-administered Kashmir: ‘There is no denying the fact that, up to 1970, the fate of AJK governments largely depended on the all-powerful bureaucracy of the Ministry of Kashmir Affairs that was the kingmaker. The bureaucracy would not let any head of the AJK government work independently and freely.’61
‘Azad’ Kashmir, however, was due for more changes over the next few years. As Pakistan ushered in a brief era of democracy under Prime Minister Zulfikar Ali Bhutto, and a new constitution was passed in 1973, Kashmiris also demanded a parliamentary form of government in AJK.
In 1974, a new Act was passed, modifying the 1970 one. Now that Kashmir had become a bilateral issue after the Simla Agreement, Pakistan wanted to ensure that it solidified its legal hold over AJK. For the Kashmiris, however, instead of improving the situation and giving them more rights, this Act only worsened the state of affairs.
One of the most important aspects of this new Act was the creation of the Kashmir Council, which began to serve the function of an upper house to the elected AJK legislative assembly. ‘It is a constitutional body established under section 21 of the Azad Jammu and Kashmir Interim Constitution Act 1974. The council has clearly defined executive, legislative and judicial spheres enumerated in the third schedule of the Act.’62 The prime minister of Pakistan heads the council, while the president of ‘Azad’ Kashmir serves as the vice chairperson. The prime minister of AJK or his nominee, the federal minister from the Ministry of Kashmir Affairs, six elected members from Kashmir and another five members nominated by the prime minister of Pakistan from amongst the federal ministers and members of the Pakistani parliament, form the committee.63
Kashmiri writer Ershad Mahmud explains:
The basic idea of forming the council was to reduce direct powers of the Ministry (of Kashmir affairs) and establish the writ of the elected body and also to raise the level of interaction between Islamabad and Muzaffarabad by making the prime minister of Pakistan chairman of the council… the 1974 Act failed to evolve a balance and consensus formula to sharing of powers between AJK government and the council. Now the balance is heavily tilted in Kashmir Council’s favour, often rendering the AJK assembly helpless… the chairmanship along with five federal nominees and ex-officio Kashmir Affairs minister, gives the government of Pakistan a majority (domination) in the council.64 The council has powers over all development funds, while the AJK government’s powers are limited to utilization of local revenues generated within the territory itself. The council’s decisions are final and not subject to judicial review, either by the judiciary of Pakistan or by that of AJK. Thus power still rests with the officials of Pakistan and the Ministry of Kashmir Affairs in Islamabad with regard to all legislation and appointments, questions of general policy, budget, internal security and matters related to civil supplies. On many of the important decisions such as appointment of judges and the election commissioner, the prime minister of Azad Kashmir cannot act without the consent of the chairperson of the council. It also illustrates that the Government of Pakistan maintains control over all natural and financial resources and the decisions on their use. In short, when the Kashmir Council was created… it was considered an attempt to elevate AJK status. But no tangible step was actually taken to enhance AJK’s autonomous status further.65
I am told by all ‘Azad’ Kashmiris I converse with that the president does not have much of a say in the council and the chairperson, that is the prime minister of Pakistan, is omnipotent. Through the Kashmir Council, the federal government also controls all essential tasks, such as tax collection. According to Tariq Naqash, a local journalist from ‘Azad’ Kashmir, ‘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.’66
A reliable source from the AJK government, on condition of anonymity, further voiced his grievances. He complained that Kashmiris have to beg for basic necessities like water, even though thousands have been displaced in Kashmir due to the construction of dams on Kashmiri rivers. ‘We don’t get any royalty on electricity generation even though dams and hydropower projects are made on our water. They tell us they can only give royalty to provinces and since we are not a province, we are not eligible. We cannot speak up locally because our powers are so curbed, nor internationally because after the 1974 Act, it was decided that AJK government couldn’t raise any issue unilaterally unless it goes via the Kashmir Council, which is dominated by Pakistanis. We are completely controlled by Islamabad as a result of this so-called constitution.’
(In May 2018, the thirteenth amendment to the Azad Jammu and Kashmir Interim Constitution Act of 1974 was proposed and hastily approved. Under the amendment, the role of the Kashmir Council is to be reduced to an ‘advisory’ body, no longer possessing executive powers. The amendment is being hailed as a significant achievement and several locals are hopeful that this will mean increased empowerment for ‘Azad’ Kashmir. They tell me that this decision may have been taken as a result of growing dissent in the region, with more and more people demanding greater autonomy. However, some of them remain apprehensive about the impact of this reform. Many of the subjects previously under the domain of the Kashmir Council have now been transferred to the Federal Government of Pakistan, which will be able to directly legislate on these matters. This move is unprecedented since ‘Azad’ Kashmir remains a disputed territory and therefore, constitutionally the Government of Pakistan is not supposed to exercise legislative powers in the region. Some Kashmiris are thus terming this reform as a further ‘colonization’ of the region, with more powers being given to Pakistan under the pretext of empowerment. They fear that these changing policies may be Pakistan’s way of integrating the region, bringing ‘Azad’ Kashmir closer to a province, and thereby ‘resolving’ the Kashmir dispute once and for all. The impact of such a decision will only unfold over time and it remains to be seen whether the reduction in powers of the Kashmir Council will actually give more autonomy to the local government or will be replaced by yet another mechanism of control, firmly in the hands of Pakistan.)
I asked this source (from the AJK government) if the Simla Agreement, signed after the 1971 war, had in any way contributed to the situation. He nodded and told me, ‘If you read the Simla Agreement and the 1974 Act, you won’t find any direct link because neither mentions the other. However, if you read between the lines, you will see how the Simla Agreement opened the gate for the Act. Prior to the Simla Agreement, Pakistan would unilaterally pick up the Kashmir issue whenever it wanted but after 1971, the government agreed to resolving the dispute through bilateral dialogue with India. In the process, the Azad Kashmiris got excluded. Today, we can’t even raise the Kashmir issue internationally without going through the Pakistan foreign office, which is bound by the Simla Agreement. The Simla Agreement, followed by the 1974 Act, dismissed the Kashmiris from the equation. Thos
e who are pro-Pakistan in Azad Kashmir won’t say anything but others like the late Amanullah Khan (co-founder of the Jammu & Kashmir Liberation Front, JKLF, which has fought for Kashmir’s independence from both India and Pakistan), denounced the Simla Agreement and the Act, because they knew it had hurt our cause.’
It is important to highlight here that when Kashmiris in ‘Azad’ Kashmir refer to their cause, it holds several meanings. Many Kashmiris continue to identify with the undivided state of J&K and its pre-Partition status. They see the current division of Kashmir, between Pakistan-administered and Indian-administered parts, as unnatural. They long to have access to other parts of Kashmir, which they believe is their right. Many of them also have family members on the other side and travel restrictions are a great obstacle in maintaining contact.
Politically too, many of them believe that Kashmiris have never had the chance to decide their own fate, whether to integrate with Pakistan, India or remain independent. They say they want their voices to be heard; they don’t want Pakistan and India to exercise their hegemony over the region, making decisions on Kashmir’s behalf. Kashmiris are the primary stakeholders, yet discussions about its present and future are held bilaterally between India and Pakistan. Where is the justice in this? they ask.
There are also Kashmiris who want independence as much from Pakistan as they want from India. Their demands are narrated in the last part of this book. For them, treaties like the Simla Agreement dismiss the Kashmiris, kicking them out of the equation. How can they demand independence when the party representing them already assumes they are an integral part of Pakistan? And even those Kashmiris who are resigned to the current status quo—as the women in the Athmuqam village were—too want their economic grievances to be addressed and political autonomy to be exercised in the region. They want their share of resources, they want the rightful allotment of royalty from dams and infrastructure projects, they want their voices to count when decisions are made about the internal politics of Kashmir. As long as Kashmir remains a bilateral issue between India and Pakistan, their demands, whatever they may be, will be ignored.
