Kashmir
has lost its regularity on the UN SC agenda which it had continued to occupy for 48
years from January1948 to August 1996. Does Plebiscite have a future? If you understand the
jurisprudence of the Kashmir case, the answer is, of course, yes. Pakistan had proposed that
Plebiscite should be held as early as in summer 1948, Britain had proposed that it should be
held by October 1948 before the snow fall began in Kashmir and the UN appointed Plebiscite
Administrator had plans to hold it by 01 November 1950.
The Pakistani and Indian officials who paid a courtesy visit to UN appointed Plebiscite
Administrator Admiral Nimitz in March 1950 in his office in Washington had found that he
was working on the electoral register and was considering the precedent of NWFP
referendum of 1947. The view of former foreign minister of Pakistan Khurshid
Mahmud Kasuri that Kashmir issue is “dead now” is based on non-knowledge of the case and
has no merit.
On 6 January 1948 President of the UN Security Council advised India and Pakistan that the
Security Council would be taking up the question of Jammu and Kashmir for discussion. The
two countries should therefore, “refrain from any step incompatible with the Charter and
liable to result in an aggravation of the situation, thereby rendering more difficult any action
by the Security Council.” On 8 and 9 January 1948, Pakistan and India respectively submitted
in writing their assurance of compliance with the UN Charter and UN Security Council
jurisdiction.
The lack of a reliable understanding of Kashmir case continues to remain an impediment and
ill-serves the interests of the People of Kashmir. There has never been any disagreement on a
Plebiscite. It has been explained time and again that, “The lack of agreement therefore, does
not concern this right of self-determination. It concerns the ways and means and procedures
to establish the conditions for a fair expression of the will of the people of the State of Jammu
and Kashmir who want to make their choice free from any kind of fear or intimidation.”
(Netherlands 566 th meeting of UN Security Council held on 10 November 1951).
Indian action of 05 August 2019 has no merit as long as we keep to the UN definition of the
people, UN understanding of the three administrations, jurisprudence of UN template and
don’t hurt the case by making it a case of Muslims alone. The UN Secretary General Dag
Hammarskjöld visited Srinagar in March to assess the political and economic conditions of
“all” people. According to UN template on Kashmir, Indian action of 05 August 2019, is a
“very grave offence” committed by India against Pakistan (other party), the United Nations
and against the right of the people of Jammu and Kashmir to self-determination.
India has been monitoring the rights struggle in Jammu and Kashmir and the merits of
Pakistan’s political, moral and diplomatic support all these years. It monitored Hurriyat
Conference from July 1993 for about 26 years. India saw that the “Kashmiri guns” failed to
follow the military science and had no sense of plurality of the community. Kashmiri guns
fell silent and authors of militancy turned turtle. India found us all sitting in a cul-de-sac and
others wandering in the political wilderness. Therefore, Modi government decided to
disenfranchise the people of Kashmir and “loaded upon itself a very grave offence”, by
taking the 05 August 2019 action.
Kashmiri leaders and their sympathisers in Pakistan drifted away from the UN template and
made ad hoc interventions. The most injurious one was calling for election boycotts in
Kashmir. It weakened the merits of local vote as an instrument of strength and internal self-
determination in Kashmir. Hurriyat and militant leadership has nothing to show for the past
26 years. Their shelf-date expired for Delhi and unfortunately for Pakistan as well. It had to
be so, because we failed to set our compass correctly.
India has an interest in Kashmir and has a constituency. She has made a reference to the UN
Security Council and it has helped the people of Kashmir to have the contours of their case
defined. Pakistan has also an interest and a constituency.
United Nations has not only defined the people of Kashmir and their rights movement, it
appointed a Plebiscite Administrator to arrange a free and fair expression of will of the
people. UN also appointed a Representative to seek demilitarization from India and Pakistan
and to help in the work of the UN appointed Plebiscite Administrator. India had offered to
keep a 21,000 (twenty-one thousand) no arms bearing force. Even the last soldier could have
been dispensed with by the Government of Kashmir and the UN Commission.
Government of Pakistan, Government of Azad Kashmir and the Kashmiri leadership in Azad
Kashmir decided to share the responsibilities and there was an allocation of duties in respect
of Plebiscite. They decided to institutionalise the work on Plebiscite in April 1949. We
should have had a Plebiscite Advisor in place as agreed in the Karachi Agreement of April
1949.
Government of Azad Kashmir, under article 8 of Azad Jammu and Kashmir Government Act
1970 and under article 11 of Azad Jammu and Kashmir Interim Constitutional Act 1974 had
to establish the institution of a Plebiscite Advisor. Under 1970 Act Government of Azad
Kashmir had to consult the Government of Pakistan but under Interim Act 1974, appointment
of a Plebiscite Advisor was left exclusively to the Government of Azad Kashmir.
The judiciary of Azad Kashmir has helped the Government of Azad Kashmir in settling the
qualifications of this Plebiscite Advisor. The High Court has given a detailed judgment on
JKCHR constitutional petition Number 1992 in April 1999. The judgement is reported in the
Yearly Law Reporter 1999.
The full court in its judgment has said, “The argument of the learned advocates for the
respondents that financial position of the Government does not allow it to bear expenses of
the plebiscite adviser is also devoid of any force. A list is placed before the Court of advisers,
special assistants etc. appointed by the Government, besides about one and a half dozen
ministers, of which we take judicial notice. It is not becoming of the respondents to avert the
Constitution and national responsibility under section 11 of the Constitution by putting up the
lame excuse of lack of funds in the presence of a chain of advisers, special assistants and
cabinet ministers for running the administration and political affairs of only about five
thousand sq. miles area and ignoring the rights and interests of people spread over eighty
thousand sq. miles, for whose sacrifices this system is running.”
If Government of Azad Kashmir avoids to appoint a Plebiscite Advisor for 70 years from 28
April 1949 to 05 August 2019, Hurriyat fails to perform its constitutional duties for 26 years
from 31 July 1993 to 05 August 2019 and Pakistan forgets that it had proposed a Plebiscite to
be held in Kashmir in the summer of 1948 and avoids to raise Kashmir at the UNSC for 32
years from November 1965 to September 1996, India found no road blocks and took 05
August 2019 action in Kashmir.
It is unfortunate that we have continued to lie to our people even when much worse things
have happened to Kashmir issue at the UN. In August 1996 UN Security Council under rule
11 of the provisional rules of procedure decided that as of “15 September 1996, matters
which have not been considered by the Council in the preceding five years will be
automatically deleted from the list of matters of which the Council is seized”.
As a result the matters which were included in the summary statement of the Secretary
General for deletion attracted The India–Pakistan question (Kashmir) as well. It was found
that Kashmir was last discussed on 5 November 1965 and had not been discussed for 30 years
and 11 months. It was deleted and lost its regularity on the UN SC agenda which it had
continued to occupy for 48 years from January1948 to August 1996.
Once again a procedural stipulation came to the rescue of Kashmir. The Security Council,
however, decided that “A matter will however, be provisionally retained in the list of matters
of which the Security Council is seized for a period of one year if a Member of the United
Nations notifies its objection to its deletion before 15 September 1996. If at the end of one
year the matter has still not been considered by the Council, it will be automatically deleted”.
Indian action of 05 August 2019 is unlawful and has no merit. United Kingdom has made it
clear that, “The ultimate objective of a fair and impartial plebiscite under the auspices of the
United Nations…has been written into solemn agreements by the two Governments and
endorsed by this Security Council. These agreements have been affirmed and reaffirmed by
the two Governments many times.” (606 th meeting of UN SC 6 November 1952).
Dr Syed Nazir Gilani.
Dr-nazirgilani@jkchr.com.
