It happened for the first time in the post-Independence politics of Pakistan, that 60 percent registered voters came out to vote. There was a generational stir and every citizen, eligible to vote or not, decided to resurrect hope by undertaking their civic duty to vote or facilitate a voter to vote in the interests of their present and future. They rose from the ashes of neglect, oppression and disadvantage. None other than the cricket legend Imran Khan raised the slogan for a ‘change’. Pakistani youth and the women responded to his call and have shaken the entrenched politics in Pakistan.

Back on the radar

The election of May 11, 2013 has put Pakistan back on the radar as country which in addition to Muslims is a home for seven non-Muslim communities namely Hindus, Christians, Sikhs, Parsis, Qadiyanis, Bahais and Buddhists. Except for the boycott of some 200,000 members of the Ahmadi community, 1.40m are Hindus, 1.23m Christians, 5,934 Sikhs, 3,650 Parsis, 1,452 Buddhists and 809 Jews played a crucial role in 96 constituencies. Of the seven minority communities living in the country Hindus constitute the largest group. They woke up as the citizens of a country to attempt a change through ‘vote power’, a strength denied to the people of Pakistan since 14 August 1947. These polls will mark the first time that a civilian Government has completed a full five-year term and handed over to an elected successor since Pakistan was created in 1947.

Fatwa-‘Islamic obligation’

2013 is Pakistan’s lucky year. A lot happened in many different ways. On 25 April 2013 over 300 clerics belonging to different schools of Islamic thought issued the fatwa in Islamabad nearly two weeks ahead of the parliamentary elections and declared that casting vote was ‘compulsory under Islamic injunctions’. The fatwa views casting vote as an ‘Islamic obligation’ of the people and the action of those who avoid casting vote will be considered a ‘sin’. The edict was in contrast with the stance of the Taliban, who view the democratic system as un-Islamic and also asked the people to stay away from casting votes.

Carry Out Civic Duty

Two days before the elections, UN Secretary General Ban Ki-moon on behalf of 195 countries of the world urged all eligible Pakistanis to peacefully take part in the country’s upcoming elections while also expressing concern about the recent wave of violence and attacks aimed at disrupting preparations for the 11 May polls. Like the fatwa UN chief also expressed his hope “that all eligible Pakistanis peacefully take part, regardless of their religious affiliation, ethnic background, or gender and carry out their civic duty on this important day.”  Muslim scholars had described the casting of vote as a religious duty and UN Secretary General described it as a ‘civic duty’. Pakistan Peoples Party (PPP), Pakistan Muslim League – Nawaz (PML-N), Pakistan Tehreek-i-Insaf (PTI), Muttahida Qaumi Movement (MQM), PML-Quaid, Jamiat Ulema-e-Islam (JUI), Jamaat-e-Islami, as well as minorities have also supported the decree.

Commendation

After noting the 60 percent turn out at the polls, UN Secretary General would be justified in his appreciation of “the efforts of the Government, the Election Commission of Pakistan, political parties, civil society and religious leaders to encourage voter turnout, particularly amongst women.”

New turn and Treason

Pakistan is going to take a new turn. At variance with the perpetuated habit of being above law, the Election Commission under article 245 of the Constitution was able to summon the army in aid of civil power to maintain law and order during the polls in various parts of the country. It has been a good beginning as soldiers under oath under the Constitution. Nawaz Sharif, too seems to have graduated in experience and he has made it clear that his government would decorate the senior most in rank as the next Army Chief, when General Kayani is due to retire on November 27, 2013.

Military has been driven back, though at a slower pace, to their Constitutional duties by an assertive superior judiciary. Civil society and emerging free press have equally contributed to the debate of a military adhering to its oath of non-interference in the politics of the country. The exile, return and fate of General Musharraf remains on the side of the general debate, that a soldier is there to serve according to his oath and under article 245 of the Constitution. Beyond that he would attract treason under article 6 of the Constitution.

New Government

Pakistan Muslim League – Nawaz (PML-N) lead by Nawaz Sharif and Pakistan Tehreek-i-Insaf (PTI) headed by Imran Khan as two major parties have to conserve the faith and hope of the people, who came out in unprecedented numbers to find hope. Along with domestic duties the new Government shall have to respond to its regional and international obligations.

Nawaz Sharif had pioneered a new start to resolve the various pending issues with the Government of India. Kashmir remained as one of the issues. Atal Bihari Vajpayee had reciprocated in his distinguished style as a humanist on the issue of Kashmir. Unfortunately, Musharraf sabotaged the process and punished not only the people of Pakistan but equally disturbed the Kashmiri narrative. A new start has to be made to save the people from becoming proxies and casualties between the two countries. Nawaz Sharif of a Kashmiri origin and Imran Khan as a sportsman, have more to revisit and contribute.

Kashmiri Leadership

Pakistan Muslim League – Nawaz (PML-N) has its set up in PaK. However, the Kashmiri leadership from the Valley shall have to summon extra-ordinary moral courage for turning their backs on Nawaz Sharif during his difficult days and for singing hymns in praise of Musharraf. In fact Kashmiri leadership erred to serve the interests of establishment and did immense wrong at the cost of Kashmiri narrative to keep Musharraf in good humour. Times have proved them wrong and they are faced with a difficult situation. The only hope would be the intervention of the mediaries in the establishment in Islamabad. But the new political dispensation would not be prepared to go along with the ‘yellow pages’ of who is who on Kashmir prepared by the establishment.

Kashmir Elections 2014

The Clerics in Pakistan have declared casting vote a ‘religious duty’ and United Nations has described it as performing a ‘civic duty’. It would be very difficult for Kashmiri leaders to oppose the participation in Kashmir Elections in 2014. Elections in Pakistan have set a new example, that the youth and the women have a special role in any change in the society. Unfortunately Kashmiri leadership does not regard or encourage the role of women at all. Their participation is symbolic and unimpressive.

As far as Kashmiri youth is concerned, a generation was lead to the grave. A large number is disabled. Some have been tagged as renegades, some surrendered militants, some are stranded in AJK or in Pakistan trying to settle down and others are trying hard to return and benefit from the rehabilitation policy of the State government.

We have a large number of educated unemployed employable youth, a large number of educated unemployed unemployable youth, a large number of un-educated unemployed employable youth and a large number of un-educated unemployed unemployable youth without a future. They have reached a dead end in their life. It is ironic that many of our youth who were encouraged to take on the world’s third largest army as rag a tag soldiers, are trying hard to be recruited in State police, BSF, CRPF and other visible and invisible forces. Some fortunate find their way into Indian Administrative services.

Unfortunately, the manner of politics of our leaders has made Kashmiri youth less attractive as a proxy for Pakistan and a suspect in various parts of India. He is seen limping between devil and the deep sea.

Kashmiri, Imran Khan and Kashmiri Nawaz Sharif

There is a need to turn the page in Kashmir as well. Our youth and our women have to surge to force a change. We need the likes of Imran Khan and Nawaz Sharif, who can address all ages, all faiths and all interest groups alike and assure them that it is now or never, for a change. The status quo in Hurriyat and in Main Stream politics has to be challenged. They should remember what Imran Khan said from his bed in the Hospital, “How long would you allow PPP to sell you in the name of Bhutto?” And if you don’t come out on May 11, 2013 to change Pakistan, you will be lumbered with the same regime for another five years.

Ideas move the world and Pakistani common citizen of all faiths, all ages and in particular women and youth came out to sack an old system. That is what we need to import as a good example for Kashmir.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He is on UN register as an expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He could be reached on email dr-nazirgilani@jkchr.com

By Dr. Syed Nazir Gilani –

Kot Lakhpat jail in Lahore failed in its responsibility to 49 year old Sarabjit Singh of village Bhikhiwind, Punjab, (India)  and Kot Balwal in Jammu erred to allow a revenge attempt to endanger the life of  52 year Sannaulah Ranjay of village Daluwali, Sialkot (Pakistan). Singh had been in prison for the last 23 years and Ranjay for the last 17 years. Sarabjit Singh succumbed to his injuries and Sannaulah Ranjay is still fighting for life. In a civilized society the system of justice allows people to engage in mediated combat with each other via words and representations in courts.

Acephalous Societies

It appears that Kot Lakhpat and Kot Balwal are two correctional institutions situated among acephalous societies. Regardless of the merits of Sarabjit Singh’s case, he lost his life. In the current political mistrust between the two countries, it entails a bad news for the prisoners held in both countries. There could be no dispute with the common sense approach that the attack on a prisoner waiting on a death row could not be possible without a plan. It could not be defended as a sudden feud between two prisoners. The kind of material used to assault him and inflict life taking injuries, could not be brought into the prison without a third party support. Bricks, sharp metal sheets, iron rods and blades used in the attack could not be stored in a cell unless someone among the jail authorities had consented or coerced the other inmate to unleash a vicious attack on Sarabjit Singh.

Our Condolences

Our condolences go out to Sarabjit’s sister Dalbir Kaur, his wife Sukhpreet Kaur, daughters Swapandeep and Poonam, son-in-law Sanjay and the people of Bhikhiwind. It would be an error of judgment to draw any parallel between any two prisoners. More so, during the times when Sarabjit Singh was arrested the methods of arrest, means of interrogation  and the scales of justice on either side of the border in India and Pakistan, have remained suspect on a number of counts.

Mistaken Identity

The violation of human rights cases and in particular the disappearance of prisoners from Adiala jail in Rawalpindi and the cases of other disappeared people (all Pakistan nationals) pending before the Supreme Court of Pakistan, remain an example that the manner and behaviour of the various agencies involved has come under the sharp scrutiny of the Supreme Court of Pakistan.

There has been a continued claim that Sarabjit Singh was a victim of mistaken identity. The atmosphere of trust between India and Pakistan in 1990 was at its low and arrests of innocent people living near the border were a routine. His family have continued to maintain that Sarabjit was a farmer and had strayed into Pakistan from his village located on the border, three months after the bombings.

Proper Defence

There is no convincing evidence that Sarabjit Singh received proper legal defence during his trial under the Pakistan’s Army Act. There does not appear any evidence that he had any consular access from the Indian High Commission in Islamabad. His death sentence was upheld by the High Court and later by the Pakistan Supreme Court.  The Supreme Court dismissed his petition to review his death sentence in March 2006 as Sarabjit’s lawyers failed to appear for the hearing. In fact the appeal had been dismissed by the Pakistan Supreme Court for non-prosecution only because of lack of interest by his former lawyer.

The integrity of such trials in such vitiated circumstances in 1990/1991 could not be regarded fair and impartial. The courts in Pakistan at that point had not graduated in holding the scales of justice and in competence, independence and impartiality as we find them today. The press and public would not have remained as interested in the rights of a non-Pakistani as much as we find them today.

Shaukat Salim’s Retraction

In April 2008 the key prosecution witness Shaukat Salim retracted his early statement given in the court against Sarabjit Singh. Salim’s father and other relatives had been killed in the attack. In court Salim had provided testimony that Sarabjit was the one who had planted the bomb but later on accepted that he had done so under pressure from the police.

Sarabjit Singh was initially arrested for illegally crossing the border and after eight days the police implicated him in the terrorist bombings. A British lawyer, Jas Uppal, who campaigned for his release pointed to several loopholes in the trial. In particular, his identity was never verified or proved in court and no forensic evidence was provided at his trial to link him to the bomb attacks, the trial was conducted in English, whereas Sarabjit did not speak or understand English, and an interpreter was not provided, there were other serious questions over the fairness of his trial, including allegations that he was tortured in custody and forced to confess, the trial was fast-tracked and the main witness repeatedly changed his version of events.

In June 2012, the President of Pakistan decided to release Sarabjit but a few hours later, the release order was revoked explaining that the prisoner to be released was Surjeet Singh and not Sarabjit Singh.

Miscarriage of Justice

The retraction of the statement by prosecution witness and the fact that there was a non-representation at the trial in the Supreme Court, make a convincing case that there has been a miscarriage of justice. The conviction should not only have been reversed, but Sarabjit Singh was entitled to compensation in accordance with law.

100,000 Signatures

A number of mercy petitions had been filed by Sarabjit’s legal representatives. The fifth petition was filed on 28 May 2012 along with 100,000 signatures collected from India. But none of the mercy petitions had been approved by the President.

Physical Integrity

Although Sarabjit Singh was subject to a loss of liberty in accordance with law, he continued his right to retain his physical integrity. He had to be treated with all dignity and should not have suffered any degrading and inhuman treatment. The manner in which items used to brutalise and kill him, were available to another inmate in the prison, mean that Sarabjit Singh was subjected to torture, cruel, inhuman and degrading treatment.

Every individual who is deprived of his liberty has the right… to humane treatment during the time he is in custody. In this case Sarabjit Singh was entitled to be treated with humanity and with respect for the inherent dignity of the human person.

Chain of Killings

The events and circumstances which have conditioned the expression of this senseless violence in Kot Lakhpat and Kot Balwal jails entail a potential for chain killings in the future. A dangerous example of revenge killing and failure of a correctional institution to remain responsible for the physical integrity of a prisoner, has to be looked into in the best interests of other prisoners held in prisons in both the countries.

It would be a great disservice to the full regime of human rights and in particular prisoner’s rights, if we make an unwise effort and draw any parallel between the manner in which States have behaved in the cases of Afzal Guru, Sarabjit Singh and Sannaulah Ranjay. We need to highlight the basic human right to a fair trial, in civil and criminal matters and that all other rights depend upon the proper administration of justice. The character of the tribunal, in terms of its independence and impartiality is the litmus test. A judge must not be subject to the control or influence of the executive or the legislature.

The mood levels in India and Pakistan are very disturbed. We have to remind each other that, “while seeking revenge, dig two graves, one for yourself”. Common and unfortunate people like, Sarabjit Singh and Sannaulah Ranjay should not be regarded as a threat to national security but need to be given the benefit of being ‘there at the wrong time’. India and Pakistan are responsible nuclear states and should not appear to act as acephalous societies.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He is on UN register as an expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He could be reached on email dr-nazirgilani@jkchr.com

May 11, 2013 elections in Pakistan are round the corner. Election campaign is trailed by suspense and there is an unabated loss of life on a daily basis. Doubters continue to whisper that anything could derail the process. It is in the interests of the people of Pakistan, India and Kashmir that there is a free and fair election and people succeed as an instrument of change.

A democratic Pakistan, with an ability to administer a rule of law for its own citizens, can be persuaded to revisit its proxy interest in the ‘equality’ and ‘self-determination’ of the People of Kashmir. Every vote in this election is going to make a significant difference and there are 1.5 million Kashmiri refugees settled in various parts of Pakistan. These votes are crucial for every political party. Kashmiri refugees are not only going to impact the results in Pakistan but also have the inherent ability to assure that the incoming government, moves beyond the routine statement that Pakistan would continue to provide a “strong moral, political and diplomatic support”, to the people of Kashmir. So far the proxy has killed a generation, killed the right of self-determination and has severely hurt the ‘honour’ and ‘dignity’ of the people in Kashmir.

President Zardari in Muzaffarabad

Over some time President Zardari has been under a judicial scanner asking him to act as President of the federation and refrain from turning Presidency into a Party Secretariat. The announcement of election schedule has further barricaded him to be seen neutral. Under these circumstances his visit to Muzaffarabad on 17 April 2013 to address the joint session of AJK Assembly and Council had been planned to make up for the limitations placed on his political activity in Pakistan. The address may in some way help him to connect with 2 million Kashmiri refugees, 0.5 million living in AJK and 1.5 million settled in Pakistan.

Strong moral, political and diplomatic support

Pakistan as a member nation of United Nations and as a party in the dispute has to discharge two different roles in the Kashmir dispute. Over the years Pakistan seems to have run into difficulties and has wandered away from its ability to define these two roles. It has failed to make out a convincing case whether the “strong moral, political and diplomatic support” is for its sovereign interests or for the principal interests of the people of Kashmir as ‘equal people’ with a title to ‘self-determination’. It has equally failed to maintain the transparency and dignity of this support.

President Zardari’s address has been a routine copy and paste exercise. His reiteration, “We will continue to extend to our Kashmiri brethren, all political, moral and diplomatic support. My coming here and addressing this august gathering is a manifestation of this commitment,” could neither disturb New Delhi nor cause any convincing stir in the hearts of any conscientious Kashmiri.

The five generations of Kashmiri refugees who have seen various other governments come and go in Pakistan and have seen a new experiment conducted in 1990 could not regard these pledges worth the ink in which these are written on a paper. In fact all the three constituents of support have made Kashmiris losers on all the three fronts. Our politics, its morality and our diplomatic missions have turned into a business enterprise and have no relevance to the Rights Movement.

Kashmiris can never be defeated

Zardari said that Kashmiris “are a nation and nation can never be defeated. People round the world take strength from the heroism of Kashmiri people.” It can only apply to Kashmir, if we had not lost our template as a nation. In principle it is admitted that no armies in the world have won a war against any people. Defeat of armies in British India, Afghanistan and Vietnam are the recent examples. Unfortunately Kashmiris have not remained in control of their politics, militancy and diplomacy for the last 22 years. Therefore, their case does not fit the template of ‘nations’ at war. We have lost a generation and others left behind are struggling hard to be accepted by the State under a rehabilitation scheme. These youth stranded in Muzaffarabad seem to have passed their sell by date for the elements in the Government and they are encouraged to leave. The political and moral support of Pakistan or AJK Government does not want to touch them with a barge pole.

Life imprisonment will not deter the freedom fighters

President Zardari has said, “for over six decades, the Kashmiris had struggled to achieve their right to self-determination. The force and oppression has been used against them, but their voice could not be silenced. It will never be. Life imprisonment will not deter the freedom fighters.” Like all other rulers, President Zardari could not escape the royal syndrome of ‘memory loss’. He too has been in prison and should have known it better, that if  political prisoners and freedom fighters are consigned to prisons and forgotten, they are likely to be wasted in the process. He too would have been wasted in the prison, if his wife late Benazir Bhutto and other friends had not agitated his case in and outside Pakistan. Leaders like Nelson Mandela of South Africa and Aung San Suu Kyi of Burma would probably have been wasted behind the prison doors, if their communities and world at large had not discharged a duty to their liberty and release.

President Zardari’s reference to “The hanging of Afzal Guru through abuse of judicial process,” lacked moral merits. There is no evidence that Government of AJK, Government of Pakistan, Pakistan’s Parliamentary Committee on Kashmir had expressed any genuine interest, or offered an iota from its “strong moral, political and diplomatic support” to Guru during his trial. It would go very badly in our history that even both factions of Hurriyat remained averse to his legal defence and decided to surge into playing politics after his hanging. If at all Pakistan wants to continue with its “strong moral, political and diplomatic support”, it should be to keep Kashmiris alive, dignified and honourable.

Longest running issues on the UN agenda

It is unfortunate that we seem to have lost moral uprightness in our politics and in our sense of responsibility. There was hardly any observation from any Kashmiri leader or conscientious Kashmiri, on President Zardari’s statement that “Kashmir remains one of the longest running issues on the UN agenda and the international community had yet to restore these rights.”

International community does not involve itself in a matter unless the parties involved energise their sense of responsibility and interest. Pakistan has continued to present itself as the second main party in the dispute. It has never allowed or encouraged a Kashmiri view at the UN. It has continued to use Kashmir for settling its issues with the Government of India. Government of Pakistan succeeded to force India to pay its ‘share of cash balances’ agreed at the time of partition during the second week of the featuring of Kashmir dispute at the UN (January 1948).

In fact it is Pakistan that did not raise Kashmir at the UN Security Council for 31 years from 05 November 1965 to 15 September 1996. On 15 September 1996, matters which had not been considered by the Security Council, in the preceding five years were automatically deleted from the list of matters of which the Council was seized. Under “rule 11 – simplification of the list of matters of which the Security Council is seized”, Kashmir was deleted from the UN SC agenda in September 1996. It has lost its 48 year regularity which it enjoyed from January 1948 to September 1996. It is rehabilitated annually under a reminder provision.

Paid in their blood

It amounts to rubbing salt in the wounds of Kashmiris, to hear that “The Kashmiris have paid in their blood for the failure of the international community.” It is a challenge to the moral strengths and justness of Kashmir politics that we are able to disagree with the Pakistani leadership that international community has not failed as stated. It has been a conscious decision of the various Governments in Pakistan that Kashmir was not agitated before the international community for 31 years. A just case to be resolved in accordance with UN mechanism was derailed and put on the track of a self-serving military method.

Kashmiri politics has never been as fragmented and as suspicious of each other as we find it today. It has never been as dependent and compliant in 144 years from 1846-1990 as it has turned to be in the last 23 years from 1990-2013. If Walter Lawrence were alive today, he would be surprised to find that his definition of a Kashmiri holds good even today after 126 years.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He is on UN register as an expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He could be reached on email dr-nazirgilani@jkchr.com

Jammu and Kashmir Liberation Front chairman Yasin Malik has challenged the Chief Minister Omar Abdullah, to “have an open public debate”. Malik has offered Omar Abdullah to “choose a place of his own choice and have a public debate on the issue of Liyaqat Shah”.

The invitation has substantive merits.  It could  be the beginning of evolving an indigenous  narrative on Kashmir. There should be a public demand for a broader debate and the civil society should edge forward to conceptualize the parameters of an interaction between all the three opinions, namely pro India, pro Pakistan and pro-independence.

Right Time

In the last 23 years we have tried united politics (Hurriyat), a fully blessed militancy, sentiment lead common man’s resistance, Stone pelting, Hartal calls by Hurriyat, Hartal calls by Coordination Committee (CC), recent Hartal calls by Muttahida Majlis-e-Mashawarat (MMM) and have now decided to shift to social sites like face book. All this time we have been oscillating between various other half-hearted prescriptions, like occupying people’s interest in fighting social evils, formulating economic policy to save economic exploitation and defend the natural resources.

There is no issue with the honesty of people busy in this lavish indulgence but there is undoubtedly an issue with the wisdom of these political flings. We can’t leave it to a no holds barred politics. Therefore it is right time that a debate as proposed by Yasin Malik is encouraged and enlarged to listen to all the three opinions. In this Column I shall address the pro Pakistan view and other views in the next Column.

Pro Pakistan View – Death Warrant

Evaluating the merits and scope of this point of view in Kashmir, one has to examine the role of Pakistan. Although Government of Pakistan stated at the UN in 1947 that “the accession of the State to the Indian Union would be tantamount to the signing of their death warrant”, Kashmir has never been the core issue or the issue of right of self-determination as “equal people” for the Governments of Pakistan. Pakistan Government diluted the Kashmir Question at the UN and brought in the question of accession of Junagadh, Manavadar and some other States in Kathiawar, with it to the UN. Over the years it gave up on its claims of accession with these States.

Pakistan effectively gave up on the Hyderabad question at the UN from 24 May 1949 and on Kashmir from 5 November 1965. There has always been a gap between the Kashmiri policy of the Government in power and the common sentiment of the people of Pakistan. Government wants the people of Kashmir to wage a war against the world’s third largest army and defeat it to be able to accede to Pakistan.

The results of the military engagements in 1948, 1965, 1971 and 1999 Kargil War do not add up in favour of this wishful thinking. Pro Pakistan view in Kashmir unless driven by subterranean interests would not guarantee to defeat India through a rag tag force of Kashmiri youth. No right minded military general or a politician would see sense in winning a war if around 100,000 (one hundred thousand) human souls are killed and there are others who wish to surrender and be rehabilitated.

Treatment after Accession

The second disappointing evidence is the treatment of other States namely States of Kharan, Mekran and Lasbela which acceded to Pakistan in March 1948. In just 10 years and only a day or so before the imposition of Martial Law in Pakistan on 7 October 1958, Khan of Kalat made an attempt to break away from Pakistan. There is some ground for thinking that there was reluctance on the part of these States to accede – they were among the last to do so and that they were influenced in this by the Khan of Kalat.

Instruments of Accession were executed and accepted and three years later, the four States were brought together into a Baluchistan States Union of which the Khan of Kalat became the Khan-i-Azam.

As time passed, he showed himself increasingly dissatisfied. He promoted a sense of local patriotism and a separatist tendency. He complained that in the Sibi negotiations of 1948 (in the presence of Quaid-i-Azam Mohammad Ali Jinnah) he had been misled and placed under unfair pressure. In September 1958 Khan lowered the Pakistan flag, raised his personal standard and offered armed defiance. There was an army action. A brief action ensued, the Khan surrendered and was hurried away to confinement. Baluchistan has continued to remain up in flames ever since.

What would be the manner of any such accession with the Republic of Pakistan, if there were one in the future? What would be the future of the people living in all the territories of the State on either side of LOC has to be debated as part of any future debates among all the political leaders and the people. Yasin Malik has raised his finger in the right direction.

Violence and fraud

In her reply to Indian complaint and counter claim at the UN  Government of Pakistan has maintained, “The Pakistan Government have not accepted and cannot accept the accession of Jammu and Kashmir State to India. In their view the accession is based on violence and fraud. It was fraudulent in as much as it was achieved by deliberately creating a set of circumstances with the object of finding an excuse to State’s accession”.

Practice in AJK

In practice Pakistan did not allow the Provisional Government of Azad Jammu and Kashmir (which it has referred as Azad (Free) Kashmir Government in its UN counter complaint) to function and disturbed it by installing a Government of its own arrangement on 24 October 1947. It is further disappointing to point out that Government of Pakistan did not allow the second Government to work in accordance with its Provisional Declaration. In April 1949 Government of Pakistan under Karachi Agreement forced the AJK Government and Muslim Conference to surrender Gilgit and Baltistan into the administrative controls of the Government of Pakistan.

Over the years Government of Pakistan has reneged on the terms of this agreement and for a long time has continued to treat the area as a colony. It has continued to disregard the 8 March 1993 judgement of the AJK High Court on the status of Gilgit and Baltistan. The judgment among other directions, directs, “the Azad Government to immediately assume the administrative control of the Northern Areas and to annex it with the administration of Azad Jammu and Kashmir”.

Violation of UNCIP Resolutions

The Governments in AJK and Gilgit and Baltistan are not established as provided in UNCIP Resolutions. The areas were to be administered by Judicial officers under the supervision of the United Nations. Government of Pakistan has committed itself to a colonial temperament by disbanding the Azad Kashmir army and taking away the departments of defence and foreign affairs from the control of the AJK Government.

It has caused a serious offence to the sense of free will and political independence by approving a Constitution for the people living in these territories and has acted as a colonial master by  sub-ordinating and “authorizing the President of Azad Jammu and Kashmir to introduce the present bill in the Legislative Assembly of Azad Jammu and Kashmir for consideration and passage”.

In addition to a full regime of other inroads to maintain its control in the area, under article 56 Government of Pakistan reserves an absolute right to send any freely elected Government home. At the common people’s level article 4.4.7 of the Constitution would not allow “a person or political party to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the State’s accession to Pakistan”.

Contradictions and Opportunism

The history of Pakistan’s Kashmir policy is fully of contradictions and opportunism. Government of Pakistan in its 24 November 1947 telegram addressed to British Prime Minister called Sheikh Abdullah “a paid agent of Congress” and many others as “some gangsters whom he has purchased with Congress money…has no following among Muslim masses”. It had to revise its policy and give him a hero’s reception in 1964. It also discouraged the British Prime Minister from consulting the International Court of Justice on the question of Kashmiris right to self-determination.

In 1948 Pakistan proposed to India to wage a joint war if “they (Kashmiri fighters) did not obey the order of cease fire immediately, the forces of both Dominions would make war on them”. It needs an explanation as why in 1990, Pakistan revised its stand. Why was it necessary to author and support militancy in Kashmir. Why did the Kashmiri leadership share a flawed strategy, which killed a generation and killed the right of self-determination?

It is right time that a debate begins amongst the various opinions of politics in Kashmir. Malik Yasin has raised his finger on one issue, let it snow ball into a public debate on all opinions.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He is on UN register as an expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He could be reached on email dr-nazirgilani@jkchr.com

Chief Editor Rising Kashmir, Dr. Syed Shujaat Bukhari contributed a lead Opinion Column on 3 April 2013 titled ‘Let the People Decide’ and the same has triggered a deep interest in politically conscious Kashmiris and their sympathisers in various geographies outside Kashmir. One thing goes without doubt that any leader (Editor/Editorial Board) of a publication supposed to shape the opinion of his people and of many others has to open up to other broad canvass of debate and learning on a subject. Shujaat Bukhari has shown a way forward to others that one has to read beyond a local gossip to be able to make a substantive contribution and increment the circle of wisdom.

I have been guided by the Column and encouraged to read more of Christopher Snedden on Kashmir. Snedden in his book “The Untold Story Of The People Of Azad Kashmir” has pointed out three major actions which took place during the 10 week interregnum between the creation of India and Pakistan on 15 August 1947 and Maharaja Hari Singh’s accession to India on 26 October 1947, which seem to have changed the ability of the people of Kashmir to deliver themselves in entirety to freedom, accession to India or accession to Pakistan.

Three major actions

These three major actions that divided Jammu and Kashmir and confirmed that the princely State was not deliverable in its entirety to India or Pakistan or to Independence were (1) a pro Pakistan, anti-Maharaja uprising by Muslim Poonchis in western Jammu that “liberated’ large parts of this area from the Maharaja’s control, (2) a major inter-religious violence in the province that caused upheaval and death, including a possible massacre of Muslims and (3) the creation of the Provisional (Free) Government in areas liberated or ‘freed’ by the Poonch uprising.

The Valley lead leadership

The Valley lead leadership had taken 31 years since the State was sold in 1846 to submit its first formal Memorandum in October 1877 against social injustice. It took them another 56 years in 1921 to find a political phrase for their political narrative and demanded “State for the State’s People”. The demand resulted into the recognition of the people as preferables – “Mulki’s” and the non-preferables – “Outsiders”. It took them another 11 years in 1932 to make a third demand for a ‘responsible government’. It was in May 1946 that National Conference submitted a memorandum to the Cabinet Mission and came clear on its demand as follows:

“Today the national demand of the people of Kashmir is not merely the establishment of responsible Government, but their right to absolute freedom from autocratic rule. The immensity of the wrong done to our people by the sale deed of 1846 can only be judged by looking into the actual living conditions of the people. It is the depth of our torment that has given strength to our protest”.

Cabinet Mission admitted the claims of Indian National Congress and Muslim League in British India but refused to consider the representation of the people of Jammu and Kashmir.

Sovereign Jammu and Kashmir

British paramountcy over princely states came to an end and Jammu and Kashmir became independent on 15 August 1947. As an independent and a sovereign State it entered into a Stand Still Agreement with the Government of Pakistan in August 1947 and decided to accede to India in October 1947. In its acceptance of a Stand Still Agreement with the Government of Kashmir, Government of Pakistan skipped the interests of the people and recognised the Maharaja of Kashmir. On the other hand, the union of India made the accession request subject to a final consultation (reference) with the people of Jammu and Kashmir.

In just 10 weeks between the creation of India and Pakistan on 15 August 1947 and Maharaja Hari Singh’s accession to India on 26 October 1947 the People of Jammu and Kashmir lost their ability to deliver themselves in entirety to independence, accession to India or accession to Pakistan.

International Status

International community while debating the question of ‘Peace and Security’ brought to it by the member state (India) touched upon the core issue of the people of Jammu and Kashmir. India, Pakistan and the United Nations agreed to consult the people of Jammu and Kashmir to decide their future. There are opinions at variance in regard to the jurisprudence of UN Security Council and UNCIP Resolutions. It is argued that the reference is limited to accession to either of the two. There are others who argue that title to self-determination under UN Charter involves ‘equality of people’ and includes right to Independence as well.

Third Option- unfettered decision

The people of Kashmir should follow the common principle of self-determination. In addition to this the equality of people of Kashmir as ‘equals’ to any other people and their unfettered choice is settled by the union of India in its submissions at the UN Security Council. Indian union has rest its case stating that, “The question of the future Status of Kashmir vis-à-vis her neighbours and the world at large, and a further question, namely, whether she should withdraw from her accession to India, and either accede to Pakistan or remain independent, with a right to claim admission as a Member of the United Nations – all this we have recognized to be a matter for unfettered decision by the people of Kashmir, after normal life is restored to them”.

Four Forces

If one looks at the graduation of civil and political society in Kashmir from 1877-1939, the political narratives of a demanded of “State for the State’s People” and a ‘responsible government’, the response by Maharaja by proclaiming a “Constitutional Act 1934” and accepting people as the basis of governance makes the people of the time and the ruler sincere and responsible. An unbiased view of the times, would give credit to Maharaja Hari Singh for the fact that Maharaja faced a ‘once in a millennium historical phenomenon’ and faced pressures from the hurriedly departing British, Nehru’s Indian National Congress, Muhammad Ali Jinnah’s Muslim League (and its local ‘affiliate’ the All J & K Muslim Conference) and Sheikh Abdullah’s All J & K National Conference.

Snedden confirms that, “Some or all of them were applying pressure to Hari Singh, either directly through consultations and visits (India, particularly, and the British) or subtly through activities such as economic blockade (Pakistan), cross-border military activity (Pakistan) and internal politicking (Muslim Conference and National Conference).The Maharaja’s decision on the future international status of J & K, whatever it was, would not satisfy all of these groups and people.”  His disinclination to take an early decision one way or the other increased people’s suspicion and encouraged some of them, particularly Muslims and Hindus in Jammu Province to charge against each other and cause a serious internal inter-religious violence in Jammu Province.

The State

It is defined in article 4 of J & K Constitution and comprises of all the territories which were under the suzerainty of the Ruler on 15 August 1947. At this point in time the territories on the Indian side of LOC include Kashmir Valley, Jammu and Ladakh and the territories on the Pakistani side of LOC are called Azad Kashmir and Gilgit and Baltistan. The current division makes its undeliverable in entirety to independence or accession to India or to Pakistan.

Duty to oversee

Pakistan has assumed a duty under UNCIP Resolutions to oversee the areas on its side of LOC. It is a provisional duty to prepare the people of the area for a final consultation. The de facto situation is that the two Governments and administrations at Muzaffarabad and Gilgit can’t even sneeze without a ‘no objection certificate’ (NOC) from elements in the Government of Pakistan.  These elements have been discussed in detail in the FBI affidavit filed in Syed Ghulam Nabi Fai’s case in the US Court.

It is not only the three major actions that divided Jammu and Kashmir and confirmed that the princely State was not deliverable in its entirety to India or Pakistan or to Independence, but the fourth one is the manner of control in Azad Kashmir and Gilgit and Baltistan, which has resulted in the death of a generation and the death of self-determination. The right is not realisable for a long time to come.

The present Kashmiri leadership (with exceptions) accredited by elements in the Government of Pakistan on either side of LOC has to learn from the fate of Musharraf, who is placed on Exit Control List and is to face charges of High Treason for subverting the Constitution when a three-member bench of the Supreme Court would hear the petition on Monday (April 08).

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He is on UN register as an expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He could be reached on email dr-nazirgilani@jkchr.com

Jammu and Kashmir Council for Human Rights is a pre-1990 institution and has represented the Unrepresented Peoples and Nations of the world at the UN World Conference on Human Rights in Vienna. It has addressed the Plenary and the Main Committee of the World Conference and has remained involved in arranging a dialogue between Atal Bihari Vajpayee and Late Nusrat Bhutto who were leading the respective delegations of their countries and in sponsoring Kashmiris to various international forums.

Commenting on Hurriyat Conference (M) Chairman Mirwaiz Umar Farooq’s statement  in reference to “ Hurriyat (M) representatives in London, Brussels and Geneva” ,  Dr. Syed Nazir Gilani Secretary General JKCHR has said that JKCHR would always increment the Rights Movement and would support the various opinions, including both factions of Hurriyat in the same manner as it has done at the Islamic Summit in Morocco, at the UN Human Rights Commission/Sub Commission and Human Rights Council Sessions in the past in equity to safeguard the integrity of the jurisprudence of Kashmir Case.

However, JKCHR has its genuine  reservations in regard to the seriousness of this statement because these Centres have been adversely listed in the FBI Affidavit filed in the Syed Ghulam Nabi Fai’s case in a US Court which after a Plea Bargain has resulted in  imprisonment and heavy fines as well.

JKCHR Secretary General has said that United Nations invites JKCHR every year to designate 5 (+2) Representatives each for the three offices of UN in New York, Vienna and Geneva. In addition to this the chair and secretary general have special privilege for UN annual passes. UN also invites JKCHR to designate 5 Representatives one each on 5 Regional Commissions, namely Economic Commission for Africa (ECA), Economic Commission for Europe (ECE), Economic Commission for Latin America and the Caribbean (ECLAC), Economic and Social Commission for Western Asia (ESCWA)) and Economic and Social Commission for Asia and the Pacific (ESCAP).

The five Regional Commissions are partnering with countries in their regions, with UN system agencies, funds and programs and with other regional and sub-regional stakeholders to undertake collaborative initiatives and actions.  It gives JKCHR access to nearly all intergovernmental processes at the UN dealing with economic and social development, gender issues, sustainable development, small arms, and human rights

The Secretary General of the UN receives written statements from JKCHR and these are circulated in accordance with ECOSOC resolution 1996/31.

Dr. Syed Nazir Gilani has said that JKCHR has a policy to increment all efforts carried out in accordance with the jurisprudence of Kashmir case, transparently and in reference to the trust of the people of Jammu and Kashmir.

Quality of Life in Border Areas of Kashmir Affected – JKCHR

Srinagar April 04, 2013: Kashmir Chapter of JKCHR in its special meeting held at its Regional Chapter, Srinagar on International Day of Mine Awareness and Assistance in Anti Mine Action has expressed its deep concern on the use of land mines by India and Pakistan in the border areas of Kashmir for the last 65 years. The participants of the meeting stressed upon an urgent need to eliminate the threat of mines and other explosive weapons of war embedded along the Line of Control.

JKCHR meeting has urged upon India and Pakistan to take appropriate measures to eradicate the use of mines responsible for continued loss of life of residents and their livestock.  JKCHR will be writing to the Governments of India, Pakistan and Jammu and Kashmir that the use of these mines is against the Constitutional guarantee to protect life, ensure freedom of movement and ensure development and welfare of the people.

It was felt that although the United Nations  is providing wide ranging assistance to millions of people who are victims of this menace in various countries, the question of the use of mines along the border of Jammu and Kashmir has not received due attention. The participants in the meeting viewed that it was obligatory upon us all to share the responsibilities in real sense to put in strenuous efforts for increased protection and safety of all victims of conflict and their families.

JKCHR has urged upon the various countries providing mines to India and Pakistan for their use in Kashmir, to own the responsibility for the loss of life, livestock and disturbance in the quality of life. These countries need to pay due compensation to the disabled members of the community and contribute to the general welfare of these people.

International Day on  mine awareness and mine action throughout the world meeting was chaired by Syed Yaseen Shah Gilani, and among others Mir Imran, Ashraf Bhat, Farooz Ahmad, Adeel Peerzaada and Yaseen Hassan participated in the meeting.

The release of Hurriyat (M) chairman, Mirwaiz Umar Farooq on Thursday 28 March 2013 after remaining under house arrest for over 45 days is a welcome decision. Other leaders who wish to express their opinions in a non-violent manner need to be considered  for a release in equity and in good faith. Promotion of a narrative of peaceful and tolerant debate is the only way forward.

The first five hour long discussion with other senior Hurriyat (M) leaders at the party headquarters, decisions taken and views expressed to press in particular Rising Kashmir would be looked at by India, Pakistan and much more by the people of Kashmir with interest. An interesting new element is that Hurriyat has welcomed the “change” in the Kashmir discourse in mainstream camp and Pakistani establishment.

Get something

People of Kashmir would need a further clarification from Mirwaiz Umar Farooq for his statement, “It is very important for Kashmir to have a stronger, stable and democratic Pakistan so that it can start serious negotiations with India on Kashmir.” “There is a change in Pakistani perception as they realize that Kashmiris should get something. It was not there in 60s, 80s and early 90s. It is a change we really appreciate.”

As a start the new Hurriyat narrative asking India and Pakistan to start ‘serious negotiations’ hinges on the fact that Hurriyat accepts Kashmir as a bilateral issue between the two countries.  It goes further to contradict itself, by expressing an over dependence on Pakistan.  Over the years, in particular from early 1990 Hurriyat should have known that a stable and democratic Pakistan was necessary to start serious negotiations with India on Kashmir. If that was the case Hurriyat shall have to explain the reasons for forming an alliance and giving a political agenda in the Constitution to the people of Kashmir. It shall have to explain the reasons why it subscribed to a political and a militant resistance.

It has taken Hurriyat nearly four months since its last visit to Pakistan to make it known to the people that “There is a change in Pakistani perception as they realize that Kashmiris should get something”.  Hurriyat has remained in charge of Kashmir politics for the last 23 years. It has witnessed three cease fires with India and has been through two rounds of dialogue as well. During this period one Indian Prime Minister offered it sky as the limit and another dropped the condition of talks under Indian Constitution and agreed to talk within the limits of ‘Insaniyat’.

Hurriyat chairman has to explain the reasons of his rejoicing on the fact that Pakistani establishment has a change of heart and wants that “Kashmiris should get something”.  If we had to wait for 23 years to be told about ‘getting something’ there was no need to endure unprecedented loss of life, honour and property never witnessed in the history since March 1846. Hurriyat’s political and militant components of the last 23 years have resulted in the death of a generation and as a consequence in the death of self-determination. In practice self-determination is not realisable for a long time to come.

Hurriyat shall have to explain the reasons for rejecting the two offers made by the two Indian Prime Ministers, taking all cease fire opportunities casually and waiting till 28 March 2013 to tell us that Pakistani establishment wants that “Kashmiris should get something”.   What if Pakistan takes more time to stabilise and democratise itself? In that case who will push India for a dialogue? Or is it that Pakistani establishment has decided to use Hurriyat (M) as an exit ramp and wash its hands clean of its proxy and blood bath in Kashmir? Hurriyat in Rjabagh and its units in Pakistan have so far been accused of making ‘something’ out of Kashmir misery. If the lid of the Pandora Box comes off, there would be question of criminal liability visiting their homes and offices, and myriad more questions would come into open.

A wise leadership should have, in a discreet manner, involved Pakistan’s guidance, at the time when Prime Minster Vajpayee had made an unconditional offer of talks and said “I appeal to all militant groups and organizations, which believe in peace to join the Centre’s efforts for a peaceful resolution of the Kashmir issue—Leave the Constitution. Talks should be held within the limits of ‘insaniyat’ so that violence is stopped and no more blood is shed”. It is unfortunate that after 23 years we are told that Hurriyat finds a change of heart in Pakistani establishment and the latter wants that “Kashmiris should get something”.

“Change” in Kashmir discourse

Hurriyat chairman has welcomed the “change” in Kashmir discourse in mainstream camp and said that pro-India parties have realized that Kashmir issue is not about development but people’s aspirations. However, the welcome note is contradicted by stating that “They are playing with the sentiments of people. This is all electoral politics to gain sympathy of people. But people know where these parties stand.”

In fact Hurriyat could have done far better by putting the mainstream camp in the dock. Unfortunately Hurriyat has acted in  violation of UN Secretary General’s report A/46/609 and Corr.1 and Article 21 (3) of the Universal Declaration of Human Rights  in opposing ‘election’ in Kashmir and facilitating the easy outcome of poll results. However, in the last elections the people of Kashmir decided to ignore their boycott call and exercised their right to vote so that “the will of the people shall be the basis of authority of government.” It should have been a concern of the Hurriyat to energise the internal empowerment of the people and encourage them to move from Voting citizens to the next important level of Vigilant citizens, through to external self-determination.

Hurriyat has been wasting its time in opposing these elections. UN Security Council has settled the issue of elections and the mandate of J & K assembly in its caution to Srinagar Government in its resolution 91(1951) of 30 March 1951. J & K assembly has been cautioned by the UN that “it is elected only from a part of the whole territory of Jammu and Kashmir” and would not have the mandate to determine the “future shape and affiliation of the State of Jammu and Kashmir.”

Garner international support

Hurriyat has decided to write letters to European Union, OIC, and UN on the prevailing situation in the Valley and seek their support for Kashmir resolution. There is nothing that could substitute the importance of sensitising the Kashmir case and maximising the constituency of support. Unfortunately, Hurriyat has a track record of 23 years and the international community remains fully informed about its reference point. WikiLeaks revelations remain discomforting in their mention of Hurriyat leaders.

Otherwise, UN is the only international forum that has granted legitimacy, to Kashmiris right to self-determination. As recent as on Saturday 30 March 2013, the US-Chapter of Muttahida Qaumi Movement’s (MQM) exercised its right to submit a memorandum to the United Nations against Election Commission of Pakistan’s delimitation of constituencies in Karachi. MQM has remained part of the Government in Musharraf and Zardari Governments in Pakistan.

The memorandum filed, has cast grave concerns over this redrawing of constituencies terming it nothing but gerrymandering, which was undoubtedly against the spirit and principle of one man-one vote. The memorandum also says the move is unlawful as well as unconstitutional and a conspiracy to divide MQM vote-bank.

In fact it is the faith that matters and MQM leadership has challenged the Election Commission of Pakistan in the best interests of their constituents (Muhajirs). It did not wait for Pakistan to be stable and democratic or for a change of heart in Pakistani establishment.

Kashmiri leadership has never petitioned the UN highlighting that Pakistan has failed to raise Kashmir at the UN for over 31 years from 5 November 1965 t0 15 September 1996. Hurriyat has to appreciate the truth that Pakistan has to account for a period of 31 years from 1965-1996 and for another 23 years from January 1990 to March 2013.

It is unfortunate that Hurriyat has been assured of a change of heart in Pakistani establishment that “Kashmiris should get something,” at a time when a lot has been lost.  They shall have to reconcile this assurance with the offers of ‘sky being the limit’ and ‘Insaniyat’ being the parameters of dialogue.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He is on UN register as an expert in Peace Keeping, Humanitarian Operations and Election Monitoring Missions. He could be reached on email dr-nazirgilani@jkchr.com

By Dr. Syed Nazir Gilani -

Union Home Minister Sushil Kumar Shinde has ordered an inquiry into the arrest by Delhi Police of Syed Liyaqat Shah a former militant from Lalpura, Kupwara who has returned to avail the benefits of the rehabilitation scheme announced by the chief minister. The action taken by Delhi police and its version in regard to this arrest is disputed by the J & K Police and the family of the former militant.

Institutions in India, in particular the Police seem to fail the citizens of the State of Jammu and Kashmir. There is a general and ever growing mistrust in any such arrest conducted by police in Delhi or in any other part of India. Loss of credibility by these law enforcement agencies is a serious matter. It could not be left to a no holds barred principle for the police. Therefore, Delhi has to make up its mind in regard to its national and international obligations in dealing with citizens of J & K in various parts of India and in Kashmir.

Even if there were no rehabilitation scheme announced by the chief minister, Syed Liyaqat Shah, under article 4 of the Jammu and Kashmir Constitution has not been in any foreign country but has been living within the territories of the state defined in article 4 of J & K Constitution.  The Union of India has entered into a bilateral agreement with the Government of Jammu and Kashmir to ‘defend the territory’ defined in article 4 of the Constitution. Indian Government under item 14 (a) and (b) of UN Security Council Resolution 47 (1948) of 21 April 1948 has submitted itself to an international commitment that “All citizens of the State who have left it on account of disturbances are invited, and are free, to return to their homes and to exercise their right as such citizens”, and that “There is no victimization”. The present unrest from 1990 is also covered under this resolution.

Under the bilateral responsibilities, the union of India has to protect the rights of Syed Liyaqat Shah even while he lived in any part of Kashmir administered by the Government of Pakistan. It is now clear that the family had been processing his return under the chief minister’s rehabilitation scheme and Shah was due to surrender before the J & K Police as agreed between the parties. The arrest by Delhi Police has been flagged in the J & K assembly. J & K chief minister and the state home minister seem to be involved in the matter. J & K Police has also disputed the Delhi Police version and has demanded that the returnee be handed over to them.

The claim by Delhi Police that Shah had a plan to carry a suicide attack in Delhi to avenge Afzal Guru’s hanging is ridiculous. We were angry at our Kashmiri politicians who seemed out to make something out of Gurus death after failing him during his legal battle, that here we have Delhi police out to make a profit out of it as well. Delhi police should have known that the tenure of using Kashmiris as proxies in Kashmir by both India and Pakistan came to an end during Musharraf’s regime in 2006.

Musharraf’s dictate in point 2 of his four point formula to Kashmiri leaders and militants, stating “curb all militant aspects of the struggle for freedom”, tells it all to everyone who claims to be a ‘true and genuine representative” of the people in Kashmir (in fact Valley). Therefore, to find any vestiges of being an ‘Albadar’ militant in Shah by Delhi police is just like looking a needle in a hay stack stock.

Amina his wife has said it all that Liyaqat was running a provisional store in Pakistan administered Kashmir (PaK).  She has further made it clear that some ten days back, policemen visited their home and informed them about the return of her husband. “On Tuesday, I received a call from Shah from Pakistan. He told me that he was returning home.  But after that I had no contact with him and learnt from media about his arrest in Delhi”.

One may wish to give Delhi police a benefit of doubt in making an error in good faith. But what would irritate and anger every State Subject in any part of Jammu and Kashmir and abroad, is the irresponsible and happy go lucky kind of statement made by Minister of State (MoS) for Home Sajjad Kitchloo. He told reporters outside the Assembly hall, “We have taken up the issue with the Delhi police through an officer of SP rank, who has been stationed in national capital. We are verifying the facts leading to his arrest,” and “if he (Shah) is innocent, J&K government would seek his release from Delhi police custody.”

Minister of State for Home, is under oath that “he will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will”. He should have known that Shah’s wife Amina had filed papers of his return under rehabilitation policy two years back in 2011 at the office of SP Kupwara. It had taken her four days to complete the process and all police and intelligence verification had been completed. The return of Liyaqat was known to the authorities including the local army formation.

Rather than defending the right of Syed Liyaqat Shah to return in safety and in dignity, defending his rights in accordance with article 4 of the J & K Constitution and more under the provisions of the bilateral agreement with the union of India, Kashmiri Minister of State for Home, brought into debate the question of Shah’s innocence.  It could not be regarded the statement of a well-informed member of J & K cabinet and a public representative. It seemed as if the minister was part of an investigation process, in particular of Delhi Police force, which was challenged by the J & K Police and members of the Shah’s family.

Liyaqat came to surrender before the authorities in Jammu and Kashmir after the application of his family for his rehabilitation under the state government’s policy was approved by authorities. It is unfortunate to have a minister in the cabinet who did not have handle on his subject. His statement, “It is being said that he was returning home under the rehabilitation policy. Perhaps the route fixed was different from what we had notified under the policy,” speaks of a cabinet member’s utter incompetence.

We know that The Jammu and Kashmir government has entered into an unwritten understanding with the Union Home Ministry that any youth who had joined militant ranks in 1990s and wishing to return via Nepal would be allowed to do it provided he surrenders before army or police in the Valley. These youth are State Subjects and a majority have been living in the territories on the other side of LoC, duly defined in article 4 of J & K Constitution. The Constitution and the provisions of accession provide these youth a protection to choose a place of their domicile within these territories.

It is not unlawful for a Kashmiri to be living in any of the three administrations run by the three Kashmiri Governments or in any part of the world. And the burden of responsibility of India and Pakistan is raised, if any of these Kashmiris for one or the other reason have to live in these countries.

It is high time that J & K Government and New Delhi revisit the ‘rehabilitation policy’ and relax it in respect of the entry points for the returning youth who have crossed the LoC. This Line of Control has no legal bar for a Kashmiri State Subject and these youth should be allowed to enter from a point that is in proximity to their place of residence across the LoC. The return is subject to an application by the family and a due process of police investigation. It ends into a surrender before the J & K Police. Therefore, making the return subject of a fixed route does not have any merit.

Delhi needs to make up its mind, in regard to its duties and obligations in Jammu and Kashmir. Promotion of the welfare of the people has no substitute.

Author is London based Secretary General of JKCHR – NGO in Special Consultative Status with the United Nations.  He could be reached on email dr-nazirgilani@jkchr.com