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Post Part Second of The Working Paper on Kashmir

For the original page click on http://www.frontline.in/stories/20060324001205100.htm

ANALYSIS

A Working Paper on Kashmir
A.G. NOORANI
A prior India-Pakistan accord must provide a basis for a dialogue with Kashmiris.


Prime Minister Indira Gandhi with President Zulfikar Ali Bhutto of Pakistan at the India-Pakistan Summit in Shimla on July 1, 1972.
NO settlement of the Kashmir problem is possible unless the falsehoods about Article 370 are first laid to rest; such as that "self-rule is embedded in Art. 370", whereas it has enabled the Centre, for over 50 years, to amass for itself powers which fall within the State List of subjects for legislation merely by securing the consent of the State government and without any constitutional amendment. This is impossible in regard to the other States.
This is the special status, which the husk of Art. 370 confers on Kashmir today. In contrast, the Prime Minister spoke at his conference on February 25 of the "vast flexibilities provided by the Constitution" in order to give "real empowerment to the people". This is statesmanship.
Not surprisingly, in Kashmir "autonomy" has become synonymous with Art. 370 and a subject of partisan debate. Pervez Musharraf himself treated the two concepts synonymously. So do authorities on law. Thomas Musgrave holds: "Autonomy involves self-government for a specific part of the population of a state, within which it may be established on either a territorial or personal basis. Autonomy appears to be able to satisfy the aspiration of particular ethnic groups while preserving the territorial integrity and sovereignty of the state, and is, therefore, often suggested as a means of resolving the conflict between demands for ethnic self-determination and the principle of the territorial integrity of states. Some jurists have argued that it should be considered as an alternative form of self-determination at international law" (Thomas D. Musgrave; Self-Determination and National Minorities; OUP; pages 207-8).
A Finnish jurist, Professor Suksi Markku, wrote of "autonomy as self-government" because "autonomy culminates in the question of self-government". Its elements, as applied to "local self-government", can be adapted to larger entities - elected assemblies; meaningful powers for the unit concerned; safeguarded territorial boundaries and adequate financial resources derived from the power to tax. It must have a legal personality (as corporations do) and the independence of "elected decision-making bodies". The European Union's Charter for Regionalisation (1988) endorses these elements for regions. Real autonomy ensures self-governance. Which is why Melissa Magliani regards "the autonomous Province of South Tyrol" as a "model of self-governance".
However, Muzaffar Hussain Baig, Kashmir's Deputy Chief Minister, himself an able lawyer, published ads in dailies to distinguish between the two concepts. Autonomy is what the Delhi Accord of 1952, by which the National Conference still swears, allows. Self-rule is Art. 370 as adopted in 1949. Internal autonomy concerns "Delhi and Kashmir" while "self-rule appears to be aimed at finding a solution of the Kashmir problem without advocating the State's accession with Pakistan or diluting India's sovereignty as he [Musharraf] has himself stated that plebiscite and independence are not the options for the resolution of the Kashmir issue" (Greater Kashmir; February 2, 2006).
Mir Waiz Umar Farooq once advocated that "an autonomous region with the other side being a party to it, could address the issue" and satisfy all sides (The Statesman, October 10, 2002).
The issue really centres on the quantum of power granted to the State. Mountbatten propounded a good test in his address to the princes on July 25, 1947: "My scheme [defence, foreign affairs and communications to the Centre] leaves you with all the practical independence that you can possibly use and makes you free of all those subjects which you cannot possibly manage on your own" (White Paper on Indian States, page 164). It gave them an Azadi which was realistic in the circumstances.
Self-rule or autonomy is defined according to the situation, whether of a people or tribe or a people within a territory. Panchayats get autonomy appropriate for a village; municipalities, for towns ("local self-government"), and corporations for metros. Why not take the Seventh Schedule to the Constitution of India and the Fourth Schedule to Pakistan's Constitution and settle the powers which, by common consent, would devolve equally on the Valley and Jammu and on Pakistan-administered Kashmir? The Northern Areas and Ladakh may be excluded.
Two caveats are in order. Musharraf's recent remarks on joint management are unrealistic. India and Pakistan cannot even run a municipality jointly. He said in Islamabad on January 25 that India and Pakistan have to see what "we cannot give to them [Kashmiris] and that residual powers would be left with the joint management mechanism which should have people from Pakistan, India and the Kashmiris". Such a "mechanism" exists nowhere and is inherently unworkable.
At Davos the next day, he spoke of "self-governance short of independence and beyond autonomy with the three parties jointly managing the area on both sides of the LoC". He added: "It will address concerns of all three parties - it will not redraw borders, it will not make the LoC permanent and make the LoC irrelevant". He would do well to stick to this and forget joint management.
The other caveat concerns tripartite or triangular talks or "the round table". A recent variant is election of negotiators. Given the divides, the distrust, clash of egos and airing of unreal schemes by politicians in both parts of Kashmir, those pleas make no sense. Posturing for positions in a post-settlement set-up in Kashmir is already under way.
It is an unedifying spectacle. There is a vacuum in leadership. Not a single politician is in a position to deliver by himself or with his colleagues. Those who claim to be able to "influence" the militants or to "vouch" for them have been rebuffed repeatedly by Syed Salahuddin, head of the United Jehad Council, not least last June in Rawalpindi. Pitiable are "leaders" who depend for their credentials on recognition by New Delhi or Islamabad. India and Pakistan took turns in wrecking the Hurriyat with the full cooperation of one faction or the other. India must talk to those who wield or control the gun.
The Prime Minister's conference on February 25 was a well-intentioned brain-storming session. He is for a "consensual solution" to be reached by "a process to start once the round table ends". These are pointed hints. Experience has amply demonstrated the futility of a New Delhi-Srinagar accord without a prior India-Pakistan accord. It must provide a basis which each side, or both together, would flesh out in dialogue with Kashmiris on both sides.
People must have a say, though procedurally, an India-Pakistan accord on a draft model on self-governance or autonomy must come first followed by parleys with the people in both parts of the State. The intra-Kashmir talks will get nowhere without such a road map agreed between India and Pakistan. This was the procedure followed in Northern Ireland as well as in South Tyrol. A free debate must be allowed and politicians, publicists and academics on both sides should be permitted to meet to discuss the model. Some leaders are prepared to contest polls to establish representative credentials. But, unless certain rules are observed the forum will yield no result. The Irish Model is very relevant on this matter. The United Kingdom enacted the Northern Ireland (Entry to Negotiations etc.) Act, 1996, to authorise elections for "delegates from among whom participants in negotiations may be drawn". But, the Act defined "negotiations" as the ones referred to in a document entitled "Ground Rules for Substantive All-Party Negotiations" issued by the government earlier, on April 16, 1996. Any accord, it cautioned, "will need to give adequate expression to the totality of all three relationships" - within Ulster, between North and South Ireland and between the U.K. and Ireland. The two countries had already arrived at an agreement on the broad framework.
But they were "prepared to consider a new and more broadly based agreement if that can be achieved through direct discussion and negotiation between all the parties concerned"; the political parties in Ulster plus the two governments.
Strand One concerned the domestic set-up. London would parley with the parties in the Province, but Dublin "will be kept informed". In Strand Two, both governments would parley with the politicians in the Ulster. Strand Three would concern the U.K. and Ireland. "The negotiations will operate on the basis of consensus" or "sufficient consensus" if unanimity was elusive. But there had to be a clear majority between the two main political forces in the North. The outcome was submitted to referenda in both parts of Ireland and ratified by the Parliaments of both countries. Participants at the forum were free to air their views. It was at this Forum for Peace and Reconciliation that agreement was reached on April 10, 1998. Ireland amended its Constitution to abandon its claim to Northern Ireland.
The Act and the Ground Rules merit close study. The polls were on the basis of party lists. "The Forum shall be deliberative only" without "any power to determine the conduct, course or outcome for the negotiations". The governments held the reins. The polls, held on May 30, 1996, sent six well-organised parties to the Forum which comprised 20 delegates for the Province. Everyone knew what each party stood for. The situation in Jammu and Kashmir differs.
But an elected Forum can help, provided India and Pakistan follow the same course, evolving first a broad accord on the dispute which covers: (a) the quantum of powers that make for autonomy or self-governance for both parts of the State; (b) institutional links between them; (c) provision for conflict resolution; and (d) the Treaty. Kashmiris' views would matter on (a) and (b) while (c) and (d) are exclusively for the governments to settle. Popular participation is, however, indispensable. The problem affects the people.
In South Tyrol, Italy negotiated a detailed package, first with Austria. The SVP (South Tyrolese People's Party), representing 90 per cent of the people, accepted it by a narrow vote. Italy and Austria agreed on an "Operations Calendar" in 1969 on the steps they would take once the items in the package were implemented. The two states notified to the U.N., on June 11, 1992, closure of the dispute and signed, on January 27, 1993, in Vienna, a Framework Treaty on Cooperation across the borders between defined areas and on specified subjects (transport, energy supply, terrorism, and so on). South Tyrol acquired in 1972 a good Autonomy Law promulgated by the President of Italy.
The U.K. and Ireland signed on March 8, 1999, a Treaty setting up a North-South Ministerial Council on similar subjects as a consultative body. Srinagar and Muzaffarabad would need such a treaty, with Jammu's participation. Sweden and Finland submitted to the League of Nations' Council meeting, on June 27, 1921, an accord on settlement of the dispute over the Aaland Islands. Overwhelmingly Swedish, they would remain under Finland's sovereignty but with guaranteed autonomy, which was broadly defined. Finland had promulgated a liberal Autonomy Law in 1921. It was followed later by yet more liberal ones.
Both accords provided for conflict resolution. The Aaland accord authorised the League's Council "to watch over the application of the guarantees". On legal issues, "the Council was to consult" the World Court at The Hague. On July 31, 1992, Italy and Austria also agreed to refer to the International Court of Justice "disputes concerning the interpretation and the application of bilateral agreements in force between them".
Without a provision for conflict resolution, any India-Pakistan agreement on autonomy for each part of Kashmir will not work. Two extremes are best ruled out - the U.N. or the World Court as also the Supreme Courts of the two countries. Neither of them has helped, to put it mildly. Domestic courts can be moved, doubtless; but for subversion of the guaranteed autonomy each country should be entitled to move an ad hoc international tribunal provided its remit is precisely defined to prevent abuse, lest every Central law is challenged before it. The Supreme Court of each state will take care of that.
The tribunal comes in only if there is so grave and significant an encroachment on the State's powers by the Centre concerned, New Delhi or Islamabad, as to impair its autonomy. This should not raise hackles in New Delhi. As recently as on January 29, 1996, India and Nepal concluded a Treaty on the Mahakali and related matters which provide (Article 11) for a three-member arbitral tribunal comprising an arbitrator nominated by each side and a Chairman appointed by the Secretary-General of the Permanent Court of Arbitration at The Hague if the Joint Commission fails to give its "opinion". Kashmir is not a matter of lesser consequence. Since the Joint Commission has the widest remit, so has the Tribunal.
The settlement will satisfy all sides. Kashmir's membership of the Union would be put beyond challenge. Pakistan could declare that Kashmir's Azadi was substantively recognised and so was Pakistan's locus standi. Kashmiris in both parts would welcome the guaranteed autonomy they would now receive in domestic law as well as by bilateral accord. It poses no constitutional problem whether because of: (a) Parliament's resolutions; (b) constitutional limitations on ceding areas or (c) on constitutional amendments to implement it.
Parliament's Resolution of February 22, 1994, declares Jammu and Kashmir to be "an integral part of India" which is not contested and demands that Pakistan "vacate" the areas in administers. It differs from the Resolution of March 13, 1990, based on a joint statement by Prime Minister V.P. Singh, Rajiv Gandhi, A.B. Vajpayee, L.K. Advani, H.K. Surjeet and others, which referred to the people, not the land alone, and pledged "complete protection of their cultural and religious identity and full expression of their aspirations". The accord would do just that.
Both resolutions, however, are as irrelevant as the Lok Sabha's resolution of November 14, 1962, on China, which affirmed a resolve "to drive out the aggressor".
A resolution of Parliament is not law (Stockdale vs. Hansard, 1839, 9A & E1 and Bowles vs. Bank of England, 1913, 1 ch. 57). S.A. de Smith's Constitutional and Administrative Law holds that such a resolution "has no legal effect outside the walls of Parliament... unless given such an effect by Act of Parliament".
Parliament has enacted a law which permits cession of territory. The Unlawful Activities (Prevention) Act 37 of 1967 penalises advocacy of secession or questioning of India's "territorial integrity". But Section 13 (3) says: "Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the government of any other country or to any negotiations therefore carried on by any person authorised in this behalf by the Government of India". Cession of territory is an exercise of sovereign power. An Act of Parliament, assented to by the President, overrides resolutions.
In the Rann of Kutch case (Maganbhai vs. Union of India AIR 1969 S.C. 783), the Supreme Court ruled that no cession of territory was involved in a resolution of a boundary dispute. If it does, constitutional amendment would be required. But little is it realised that in respect of Kashmir that would not be necessary.
Remember that the Constitution of India was enacted when the dispute was before the U.N. Security Council and plebiscite was official policy. Article 370 was so drafted as to facilitate the State's secession, if India lost the plebiscite. Time has rendered it impossible. It has not affected the Constitution.
Moving for the adoption of Art. 370 in the Constituent Assembly, N. Gopalaswamy Ayyangar said: "We are still entangled with the U.N. in regard to J&K. We shall be free from it, but that will take place only when the Kashmir problem is satisfactorily settled" (Constituent Assembly Debates, October 17, 1949, Vol. X, page 424). Which is why Krishna Menon assured the Security Council on February 8, 1957: "If as a result of a plebiscite, if ever it did come, the people decided that they did not want to stay with India, then our duty at that time would be to adopt those constitutional procedures which would enable us to separate that territory" (Kashmir: Mr. Krishna Menon's Speeches in the Security Council; Publications Division, 1958, page 128).
The Ministry of External Affairs' Secretary-General G.S. Bajpai gave a similar assurance to the United Nations Commission for India and Pakistan (UNCIP) on November 21, 1949 ("cease to operate"; S/1430/Add 1; page 166), and so did Nehru to Parliament on June 26, 1952 ("we would change our Constitution about it"; SWJN; Vol. 18; page 418). What were the "constitutional procedures" which Krishna Menon had in mind? Simply, an Order by the President under Clause (3) to Art. 370 to declare "that this article shall cease to be operative". Article 1 of the Constitution, establishing the Union, applies to Jammu and Kashmir by virtue of Clause (1) (C): "The provisions of Article 1 and of this Article shall apply in relation to that State." The effect of an order under Clause (3) would be to sever Jammu and Kashmir's links with India. Union Home Minister S.B. Chavan warned Parliament as much on March 1, 1993, about this "only link". So did Prime Minister P.V. Narasimha Rao on June 2, 1996: "Abrogation of the Article is just not possible, unless you want to part with the State." It stands to reason that if India could, under the Constitution, allow the State entire to secede, it could with perfect legality cede to Pakistan the part it now administers and without a constitutional amendment, too. Ratification of the accord is another matter.
For, there is another provision which treats the future of Jammu and Kashmir as an open question and permits accord on it. Article 253 is an overriding provision for implementing by law not only a treaty or agreement but also "any decision made at any international Conference", even on a matter in the State List. But in regard to Jammu and Kashmir, it has this proviso: "Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the Government of that State."
We are not making any such decision on Jammu and Kashmir's "disposition", only writing off legally what has not been ours in reality since January 1, 1949, if not earlier. All that an accord on the lines mentioned earlier requires is an Order under Art. 370 (3) to accomplish two objectives; first, vis-a-vis the State, to give effect to the new settlement on its autonomy in place of the one that was battered beyond recall. Clause (3) also says that Art. 370 can be made "operative only with such exceptions and modifications and from such date as he [the President] may specify". The Order should delete the word "temporary" in the marginal note and the President's power to make further Orders - a power he never legally had in any case - and thus entrench the new accord so that neither the Union nor the State can alter it unilaterally. This Order will restore Jammu and Kashmir's autonomy, its self-governance, and undo the wrongs so brazenly perpetrated since 1954. But, a proviso says that the recommendation of the State's Constituent Assembly "shall be necessary before the President issues such a notification".
This very requirement in Clause (2) did not deter the Union from eroding Art. 370 even after that Assembly had vanished on November 27, 1956. It did so through the State government, which readily accord "concurrence". A new Legislative Assembly elected under a New Settlement can make the recommendation. In strict law, this would not be valid. But sheer necessity faces us after years of gross constitutional abuse. In the Bihar Assembly dissolution case, Justice Arijit Pasayat cited rulings of the European Court of Justice on moulding reliefs in the light of necessities. (Rameshwar Prasad versus Union of India, 2006, 2 Supreme Court cases 1 at page 237). Judges reckon with realities.
We are embarking on a new constitutional regime building on the foundations of the old, wiping out the debris of the wrongs. Courts are not blind to political realities. Could the British Parliament have repealed the Indian Independence Act, 1947, the day after it was enacted or after August 15, 1947? A similar argument a propos the Statute of Westminster, 1930 (on the Dominions' independence), was ridiculed by the Privy Council in British Coal Corporation & Ors. vs. The King (1935) AC 500. "The Imperial Parliament could as a matter of abstract law repeal or disregard the Statute. But that is theory and has no relation to realities."
No court can ignore the facts of history or the cardinal fact that Jammu and Kashmir remains a member of the Union; that India and Pakistan notified withdrawal of the question from the UNSC, and concluded a Treaty to crown their achievement. India prepared a draft Treaty on the eve of the Tashkent Conference in January 1966; but "within an hour it was bodily returned to us", C.S. Jha, Foreign Secretary, records (From Bandung to Tashkent, page 231). In a White Paper on Jammu and Kashmir in 1977, Bhutto admitted that, quoting an Article. On August 13, 1982, Foreign Secretary M.K. Rasgotra presented a draft "Treaty of Peace, Friendship and Cooperation" when he went to Islamabad. It ran into 14 Articles (for the full text vide the writer's article "No-war pact parleys"; Frontline, January 14, 1994).
The alternatives are grim - continued strife; an estranged neighbour, snubbed for its overtures for peace; and an alienated populace to whom nothing is offered - not even relief from violations of human rights. Only the political will needs to be mustered. The Constitution facilitates accord.
On the eve of the signing of the Anglo-Irish Treaty on December 6, 1921, a wise statesman, Austen Chamberlain, counselled die-hard Unionists at a party conference on November 17, 1921: "Now and again in the affairs of men, there comes a moment when courage is safer than prudence, when some great act of faith touching the hearts of men and stirring their emotions achieves a miracle that no art of statesmanship can compass. Such a moment may be passing before our eyes now as we meet."
Such a moment has now arrived in the relations between India and Pakistan and a great act of faith is required of both.
__________________
ان تازہ خداؤں میں وطن سب سے بڑا ہے--------------جو پیرہن اس کا ہے وہ مذہب کا کفن ہے
یہ بت کہ تراشیدۂ تہذیبِ نوی ہے--------------------غارت گرِ کاشانۂ دینِ نبوی ہے
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