Azad Kashmir – A Foreign Territory

Attorney General Munawar Iqbal Duggal argued in the Islamabad High Court case of Kashmiri
poet Ahmad Farhad that Pakistani courts have historically treated Azad Kashmir as a foreign
territory in their judgments. This stance is consistent with past practices. Pakistan’s presence in
Azad Kashmir is primarily to fulfill its responsibilities under the UNCIP Resolutions.

While this argument holds legally, the political and administrative treatment of Azad Kashmir
has been markedly different and unjust. The Karachi Agreement’s Clause VIII is often used as
a tool for ruling and administering Azad Kashmir. There is significant external interference,
especially in the appointment of members to the superior judiciary in Azad Kashmir, where
individuals from outside the state have maintained constitutional authority.

The Azad Jammu and Kashmir Interim Constitution Act of 1974, formulated by Pakistan’s
Ministry of Kashmir Affairs, functions more as a dictate and a form of modern colonial
enforcement. This act contradicts the type of government and administration envisioned in the
UNCIP resolutions.

Azad Kashmir – Local Authority under the UN Template

Under the UN template, Azad Kashmir is recognized as a Local Authority and should be under
UN supervision. In the absence of such supervision, Pakistan has assumed responsibilities
under the UNCIP Resolutions to assist the Local Authority in improving administration and
progressing towards a UN-supervised plebiscite. Consequently, the legal basis for Pakistan’s
presence in Azad Kashmir differs significantly from that of India’s presence in other parts of
Jammu and Kashmir.

The current relationship between the Government of Pakistan and the Government of Azad
Jammu and Kashmir (AJ&K) should align with the UN template. This relationship is intended
to be temporary, lasting only until the people of the state can participate in a UN-supervised
vote. However, there are well-argued views that AJ&K has failed to function effectively as a
Local Authority. The distribution of duties has been muddled by the Karachi Agreement of
April 1949, the AJ&K Constitution Act of 1974, the AJ&K High Court decision of March
1993, and routine directives from the Ministry of Kashmir Affairs.

Much of this confusion is without merit and lacks legal sanction. These arrangements cannot
override the stipulations of the UN template on Kashmir or the provisions outlined in Article
257 of the Constitution of Pakistan.

India’s Sphere of Influence

The Government of India, during the 533rd meeting of the UN Security Council on March 1,
1951, acknowledged that its authority over the Government of Kashmir is limited to certain
subjects, beyond which it can only offer advice without imposing decisions. It emphasized that
“the people of Kashmir are not mere chattels to be disposed of according to a rigid formula;
their future must be decided in their own interests and in accordance with their own desires.”
The State Autonomy Committee Report of July 2000, adopted by both houses of the J & K
Legislature, reminded the Government of India of its temporary and limited influence in
Jammu and Kashmir.

At the 773rd meeting of the UN Security Council, the Philippines clarified the status of Jammu
and Kashmir, stating that “pending the holding of a plebiscite, neither India nor Pakistan can
claim sovereignty over the State of Jammu and Kashmir.”