The Commonwealth in Conundrum

By Syed Sharfuddin

This month the Commonwealth celebrated the return of Maldives to the organisation taking its membership tally to 54 sovereign states. However, against the tranquil background of colourful flags and welcome speeches, there were also grey clouds looming over the future of the organisation, and in particular the performance of the current Commonwealth Secretary-General who is completing her first term of office next month. According to Commonwealth convention, the Secretary-General of the organisation is automatically eligible for a second term, subject to confirmation by Heads of Government at their next meeting, called CHOGM in Commonwealth parlance. But it seems that the current Secretary-General may be the first to be denied a second term due to poor performance. The next CHOGM will be held in Kigali, Rwanda in June 2020.

The Rt Hon Baroness Patricia Scotland QC was elected Secretary-General at the Malta CHOGM in 2015, defeating two other candidates – Sir Ronald Sanders of Antigua & Barbuda and Ms Mmasekgoa Masire-Mwamba of Botswana. There was another African candidate in the race but his nomination was withdrawn by his Head of Government a week before the CHOGM.

At the end of the term of Mr Kamalesh Sharma in 2016, it was the turn of the Caribbean region to nominate a candidate for the position of the Secretary-General. In the event, two candidates were nominated from the region – Sir Ronald Sanders from Antigua & Barbuda and Baroness Patricia Scotland from Dominica. Sir Ronald secured the support of 10 of the 12 countries from the Caribbean region, but Baroness Scotland had the backing of the UK, the country of her residence, career and nationality. From Africa, the two candidates were a former Commonwealth Deputy Secretary-General from Botswana, and a former Foreign Minister from Tanzania. Like the Caribbean region, the African region was also divided over their regional candidate for the post of Secretary-General.

Baroness Patricia Scotland  was born in Dominica (West Indies) but grew up in the UK and was trained as a successful barrister. In 1997 she was nominated by Prime Minister Tony Blair as a Labour peer in the House of Lords. At the Malta CHOGM two rounds of elections were held in which Sir Ronald lost the first round, and Mmasekgoa Masire-Mwamba lost the second round. The vote was so close in the second round that Botswana demanded that a third round be held to decide a clear winner but the CHOGM Chairperson (Malta) declared Baroness Patricia Scotland to succeed Kamalesh Sharma as the next Secretary-General.

The appointment of Baroness Patricia Scotland changed the power balance in the Commonwealth and tilted it heavily in favour of UK, which had previously made way for other member states to occupy the top position at the Secretariat. Although she was originally a Caribbean candidate, she was and remains for all practical purposes a British Secretary-General having UK nationality and UK Peerage. According to the founding documents of the Modern Commonwealth adopted in 1949, the Monarch of Great Britain & Northern Ireland, as well as other Dominions and Realms is the Head of the Commonwealth. The Headquarters of the Commonwealth is located in London. In 2018 the UK also became the Chairperson of CHOGM by virtue of hosting the last Commonwealth Summit in London. The UK currently has four positions in the Commonwealth: the Head of the Commonwealth, the Head of the Secretariat, the HQ of the Secretariat and the Chairmanship of CHOGM.

This is not to say that the UK’s responsibilities are not commensurate with the high status it enjoys in the Commonwealth by virtue of its position as the linchpin of the organisation. The UK’s contribution to the annual budget of the Commonwealth Secretariat is one third of its total budget; the UK charges no rent for housing the Secretariat at Marlborough House in the heart of central London, including its security, furnishings and maintenance which runs into thousands of GBP each month. The UK Government provides diplomatic immunity and tax exemptions to Commonwealth Secretariat staff serving as international civil servants. Other major contributors to the Commonwealth Secretariat budget are Australia, Canada and New Zealand, followed by other middle-income countries.

The Memorandum establishing the Commonwealth Secretariat in 1965 envisaged a Secretary-General who would be a Senior High Commissioner. However, in practice only two out of the six Secretaries-General elected so far were senior diplomats – Sir Arnold Smith from Canada (1965-75) and Kamalesh Sharma from India (2008-16). The other four Secretaries-General were a former Foreign Minister of Guyana, Sir Shridath Ramphal (1975-1990), a former Foreign Minister of Nigeria, Chief Emeka Anyaoku (1990-2000), a former Deputy Prime Minister of New Zealand, The Rt Hon Don Mckinnon (2000-08) and a former Peer and Attorney General from the UK, Baroness Patricia Scotland (2016).

The Commonwealth Secretariat suffered a great deal during the tenure of Mr Kamalesh Sharma (2008-16). He was a great diplomat but lacked the management skills to run a large organisation whose members have diverse and often conflicting interests. They are also not easily given to compromise or consensus. Mr Sharma also did not have the clout and political profile to reach out to a President or Prime Minister over the phone and get their approval on an issue at hand. It was during Sharma’s time that Canada stopped its voluntary contribution to the Commonwealth Fund for Technical Cooperation (CFTC) resulting in drastic cuts in the Secretariat’s development and technical assistance programmes. During Sharma’s two terms, on the whole the Commonwealth was marred by mistrust and loss of confidence. The Commonwealth’s advocacy and advisory programmes declined considerably and human rights concerns in member countries became a sharp reminder of the fundamental values, which the Commonwealth is committed to uphold in its Charter.

In 2016 Baroness Patricia Scotland took over a fractured Secretariat and a financially challenged organisation. The Board of Governors of the Secretariat, comprising Commonwealth High Commissioners in London, as well as the small but influential Finance Committee of the Secretariat, comprising representatives of selected High Commissions, had high expectations from the new Secretary-General to fix the problems and turn the Commonwealth around like in the old days before it went sliding down under Sharma’s administration. The new Secretary-General unfortunately failed to meet these expectations and landed the organisation in deeper mess and controversy even though she executed these steps with all the good intentions in mind for achieving cost efficiencies and enhanced performance.

The new Secretary-General annoyed many senior staff by concentrating decision making in her office. She virtually rendered her senior management team out of work by reaching out to the third tier of staff and decided not to renew the contracts of the three Deputy Secretaries-General when their terms expired. This was a fundamental mistake as these deputies represented different regions and voices of the organisation. She also undermined the democracy and good offices work of the Secretariat by merging the political affairs directorate with the more technical, legal and governance directorate of the Secretariat and kept the post of director political vacant for over a year.

The result was a number of staff departures. Those who stayed were scared, overworked and demoralised. The primary complaint against her is that after assuming charge she discarded the previous reports on the restructuring of the Secretariat and awarded an external contract to review the programmes and management roles of the organisation to a former Labour colleague Lord Patel of Bradford on her personal recommendation by waiving the requirement of calling an open tender. At the time of getting the contract, Lord Patel’s firm KYA Global had assets of £971 and debts of £48,762. His firm received over £250,000 as fees for the review of the Secretariat. Her  critics, who include among others, Australia, Britain, Canada and New Zealand, point out that this was not only against the Secretariat rules but also a clear conflict of interest. A KPMG audit later identified “significant weaknesses” in the Secretariat’s procurement procedures. Baroness Patricia Scotland’s supporters who comprise mostly the Caribbean countries, Nigeria and Namibia have said that she is being targeted by the old Anglo Saxon Commonwealth because she is ‘black’ and that the Secretariat did not break any rules and obtained value for money in the contract awarded to KYA Global to recommend measures to modernise the Secretariat.

However, the audit report was only the last straw on the camel’s back. A lot of criticism had piled up against the current Secretary-General in her first term. In January 2017 the BBC reported that officials at the British Department for International Development (DfID) were unhappy with her poor leadership. To support the Secretary-General the FCO appointed an acting chief operating officer at the Secretariat whose salary came from the British treasury. In December 2018 an employment tribunal awarded compensation to a Deputy Secretary-General who accused the Secretary-General of breaching her employment contract and terminating her after two years. Earlier in the year, a staff member posted in the Secretary-General’s office had also won compensation for unfair dismissal. He was hired by Kamalesh Sharma but was relieved of his duties after Baroness Patricia Scotland took over from Sharma. Commonwealth’s major donors see these payouts as a serious governance issue because this money, if saved, could have gone to fund some of the development projects of the Commonwealth.  The current Secretary-General is also accused of self-projection and concentration of authority. Her visits to member countries have been unnecessarily long and often without senior staff. Recently, the Secretary-General visited India for five days to attend the annual strategy conference of the Observer Research Foundation. She also visited Swaziland for four days.

It appears that there are twice as many countries that are not in favour of the current Secretary-General getting a second term compared to the one third who may wish her to carry on for another four years. Australia, the UK, Canada and New Zealand have decided to stop their contributions to the Commonwealth Secretariat pending the publication of the independent auditor’s report and until they secure the assurance that she will step down after June 2020.

This is not the first time an incumbent Secretary-General has received opposition from member countries for a second term. In 1979 Secretary-General Sir Shridath Ramphal was threatened by India when his first term came to an end but the opposition did not gain momentum and he was re-elected to a second (and indeed third) term unopposed. At the 2003 Abuja CHOGM, Commonwealth Secretary-General Don Mckinnon actually had a Minister level candidate from Sri Lanka officially stand against him in the election. Even though many African Heads who were angry with Mckinnon over Zimbabwe voted for Sri Lanka’s candidate, Don Mckinnon managed to get a clear majority for a second term. Unless Baroness Patricia Scotland resigns from office, she is likely to relive the experience of Don Mckinnon at the Kigali CHOGM in 2020, but the odds are very much against her.

The Conservative government of Prime Minister Boris Johnson has no love remaining for a Labour Peer who has regrettably proved to be divisive for the organisation at a time when the UK needs reliable trading partners in the Commonwealth following its exit from the EU. The UK also realises that even if the majority of developing countries from the Caribbean and African regions back Baroness Patricia Scotland for a second term, she will not be able to receive much cooperation from the old Commonwealth who control the funding of most Commonwealth programmes, including Commonwealth’s technical assistance and economic development projects. The UK government is likely to advise the current Secretary-General to step down if it can find a suitable replacement for her. But the challenge is to find a person who is both capable of steering the organisation out of troubled waters and is also well known internationally to secure the agreement of Commonwealth Heads at the next CHOGM in June 2020. A quiet head hunting is currently ongoing and some names have been mentioned, including that of the Foreign Minister of Kenya, who may be in a position to become Baroness Patricia’s replacement.

It cannot be ruled out that the old Commonwealth group’s criticism of Baroness Patricia Scotland would be seen by some African countries in the prism of racism, as hinted at a Board of Governors’ meeting in London last week by the High Commissioners of Nigeria and Namibia. But let us not forget that in 2003 some African countries had challenged the second term of a ‘white’ Secretary-General. At Kigali, African Heads may use the advantage of a CHOGM being hosted by an African country to claim that it is Africa’s turn to fill the Secretary-General’s post if Baroness Patricia Scotland cannot continue for a second term. It is ironic that it was African countries themselves who breached the precedent of regional rotation by supporting an African candidate in 2015 when it was the turn of the Caribbean to have its Secretary-General. Interestingly, Baroness Scotland combines three regions in one person. She is non-white by descent (African), Caribbean by her country of birth (Dominica) and European by her nationality (British). The rotation principle is therefore completely out of the window for the position of the new Secretary-General. The race is open for any capable person who has the capacity to comprehend and manage the finances and programmes of the organisation for its members and who possesses the political clout and intellectual ability to restore the lost place of the Commonwealth at the global stage.

It cannot be left unsaid that many of the Commonwealth’s current problems are rooted in the unwillingness of donors to provide enough funds for the Commonwealth to retain staff expertise and implement its development projects across the diverse regions of the Commonwealth. An example is the election monitoring function of the Commonwealth for which funds are always found but there is little or no provision in the Commonwealth budget to support member countries’ poverty alleviation programmes or livelihood support projects. With a modest budget, the Commonwealth’s bigger and ambitious mission cannot be achieved.

At their next CHOGM, Heads may elect Jeff Bezos or Bill Gates to run the Commonwealth but unless governments are willing to provide sufficient resources to the new Secretary-General, not much would change. To repopulate a jungle and bring back its lions, elephants, buffaloes and flora and fauna to the dried waterholes, it is important to preserve the rainwater and stop land encroachment. But if countries contribute peanuts and expect to see lions, they will only get monkeys.

London: 9 February 2020

* Mr Syed Sharfuddin is a political analyst. He served as a Special Adviser in the Political Affairs Division of the Commonwealth Secretariat from 2000-2006.

Seven Ways to Strengthen a Federation

By Syed Sharfuddin
In order to strengthen the federation of a pluralistic state (multi-ethnic and multi lingual population) where minority communities (sub-nationalities) are often distrustful of the majority and end up shouting human rights violations and organising protests every now and then, the following political arrangements may be useful for enhancing the unity and cohesion of the state.

1-The post of President of the federation should be rotated among all federating units. The President should be appointed for a two year term. Malaysia follows this practice for appointing its monarchs by rotation.

2-The post of Governor of each federating unit should be rotated among representatives of its constituent districts. Governors should also serve a two year term. This will enable political representation of smaller nationalities in a province.

3-Each constituting unit of the federation should contribute manpower at the rate of 25% of its active defence forces comprising the army, navy, airforce and para military personnel. This will take away the grievance of smaller units that the military is dominated by personnel from the majority province.

4-Each constituent unit of the federation should draw a target of financing 10,000 inter-linguistic and inter-provincial marriages of its eligible youth each year. Free marriages will result in integrating diverse groups in the national stream.

5-All men in the federation should have razor cut bald heads and married men should wear rings (right hand finger #2); and all women of the federation should wear fresh flowers on their ears (right ear for unmarried women and left ear for married women). This will create a true national identity and national pride in the people.

6-On the National Day of the country the state should serve free soup and bread to all its citizens through soup kitchens and panahgahs. This will encourage people to go out of their homes and participate in national events without worrying about putting a meal on the table in the evening.

7-On the Independence Day of the country (If different from its national day) every family should cook vegetable biryani and kheer and send it to its immediate neighbour family to deepen brotherhood and friendship among people. This will create good vibes and enable people to get to know their neighbours better.

A Solution for PIA Woes

BY: Syed Sharfuddin

This is a follow up to the article by Dr Tahseen Mahmood Aslam about PIA’s management challenges printed in the Weekender last Friday. The national flag carrier of Pakistan has reached a point where it needs to be placed under interim emergency measures. This is a bitter pill which ailing organisations run with public money are often forced to swallow when faced with serious governance issues with no signs of improvement in sight. The situation of PIA is further complicated by the fact that it is a massive organisation where if one of its operations is profitable, two others are in the red. And when PIA plans to shed off its loss making operations, it is stopped from doing so by whistle blowers who appear out the woodwork crying corruption. PIA’s employee unions are not prepared to allow any tough administrative decisions calling for massive admin and staffing cuts. The courts are also approached for protecting the rights of people affected by a major restructuring of the organisation in public interest.

PIA was born at a time when it was fashionable for newly independent countries in Asia and Africa to invest in sectors that required large public investments, which were beyond the pockets of national private investors. In return, these investments also gave the newly independent countries a much-needed national identity in the world. Between this self created necessity and the resulting advantage, almost all post-colonial countries either inherited or set up a national airline, a national shipping carrier, a national broadcaster, a national telecommunications agency, a national postal service and a national railway service. At that time, these projects were seen as important symbols of a sovereign state in the same way as its national flag and national anthem. In some countries such as Pakistan, these organisations also became the largest employers for the state satisfying the needs of its citizens to get jobs and get involved in the running of the country.

The CV of PIA as a commercial institution is reminiscent of a university student who got A stars throughout his primary and secondary exams; then passed his A levels with a reluctant B, but is now struggling to barely pass his university courses. Everything has been tried – tuition, external coaching, changing subjects and even taking a gap year; but nothing seems to be working. What remains is a stark choice of either closing down the national airline and privatise its domestic and international operations or place it under emergency measures with a view to reviving its past glory and profitability.

The reform of PIA should come in two stages. The first stage is a final attempt to let the organisation reform itself utilising its internal resources and strengths. The second stage should be initiated only if the first stage fails. Of course, the second stage will come with more drastic measures that will be highly unpopular with PIA employees, unions and vendors. But it is the only way to save the failing airline. A dying patient in an ICU ward cannot keep his marital, paternal or fraternal commitments. Something must give in, and when it comes to saving the corpus itself, all others can take a back seat.

The First Stage
The Government should expand the Board of PIA with 30% women Directors on the Board, which is a major omission and a clear sign why the Board is not able to overcome the management problems in PIA. Women are better managers than men, especially in corporate environment. The expanded Board should be in place in the next three months. If any Directors need to go, these should be the senior government servants represented on the Board. They are busy people and have no experience of running an airline on commercial lines.

The Government should task the Board to carry out a review of the administration and management of PIA and require from its existing senior management team to improve governance, financial management, increase airline outreach and profitability and underpin performance throughout the organisation to save it from total collapse under its own weight. The newly drawn key performance indicators (KPI’s) should include reduction of deficit in the PIA budget, 10% increase in flight operations; 10% increase in revenue from passenger and cargo carriage and 10% downsizing in admin expenditure through internal cost savings. The Board should be given a maximum of one year to produce desirable results.

The government should support the national airline in negotiating agreements with other countries on flight connections, passenger lifting, code sharing, additional aircraft acquisition on lease and other measures to help the airline’s modernisation and linkages with other international tour operators. In this stage, the government should give a clear mandate to the airline Board and senior management but should not interfere in PIA governance until the one-year deadline has lapsed.

The Second Stage
If the Board and the existing senior management of PIA fail to act with responsible care and skill, and fall short of their responsibility to oversee the affairs of the airline by improving performance against the given KPIs, the government should dismiss the Board and fire the existing management team and place PIA under the direct control of the President of Pakistan as an emergency measure. The President should be assisted by an ad-hoc all-party special committee of the parliament, appointed by the Prime Minister in consultation with the leaders of main opposition parties.

For the interim, the President of Pakistan should appoint a Change Manager in PIA who will be a national or dual national of Pakistan and an expert in salvaging ailing organisations. He/She will have full powers of the Chairman and the CEO to make whatever changes are needed in PIA to rescue it from corporate demise.

The TORs of the Change Manager should clearly define areas of PIA that need separation and self-sufficiency by maintaining integrity of funds, functions and operations. The Change Manager should identify profit making areas in PIA from within its international flights sector, domestic flights sector, cargo flights sector, chartered flights sector and non-flight real-estate investments sector,. The Change Manager should ring-fence those operations which are making persistent loss and need load shedding.

The loss making ring-fenced areas of the airline should be restructured drastically for revival on self-financing basis. Where this is not possible these should be stripped down for auction to the private sector to operate on lease.

The profit making areas of the airline should be supported with heavy IT investment, aggressive marketing, innovative operations and staff reduction strategies for increased profit turnover. In the international airlines area, PIA should adopt the model of other successful international airlines that have itemised costs for every service and added these on to flight tariffs.

Although PIA has already started doing this to a certain extent, it can further make progress by keeping airfares the low to remain competitive internationally, but charge separately for inflight meals, seat allocation, speedy boarding, baggage check-in, SMS or email confirmation of boarding pass and in-flight supplies such as blankets, newspapers and entertainment equipment. As part of cost cutting measures, all commissions to travel agencies, sales agents, suppliers and vendors should be stopped. Rented shop floors and offices should be vacated and shifted to cheaper rent buildings. All supporting staff should be made redundant. Technical and executive staff should be multitasked to make their own phone calls, write their own reports and correspond on their own corporate email addresses. Flight staff should receive only salary but no airline incentives nor free travel vouchers. New sectors should be opened where the airline can pay for its operations and show profit after deducting costs.

The emergency measures should be introduced with a view to reinforcing the point that the airline has reached the verge of collapse and cannot continue on ‘business as usual’ model. Any staff that cannot accept the changes to be introduced for PIA’s survival can resign and leave without compensation.

The Change Manager should be given a free hand. His term should be for a fixed, non-extendable two-year time limit to turn around the airline and improve its profitability. The Change Manager should directly report to the President of Pakistan. His salary should be capped at a level agreed by the parliamentary committee and should come from PIA budget. Should a need arise to continue the interim arrangement for another year or two years for stability and profitability of the organisation, a new Change Manager should be recruited who is capable of carrying forward the airline on the new foundation laid by the outgoing Change Manager.

During the period of emergency measures and change management, all posts in the organisation should be terminated and automatically renewed on a two-year contract, renewable against performance and KPIs. Salaries should be revised. All currently admissible facilities for housing, transport, education, medical treatment, qualification allowance, or paid leave for staff should be valued in cash and merged with one take home but taxable salary. Government should exempt PIA under law from making any new appointments on the basis of employment quotas. PIA employee Unions should be disbanded for at least five years, and any existing supply or procurement contracts should be reviewed. The Change Manager should have full powers to renegotiate them on new terms to meet the requirements of a restructured national airline.

When PIA is completely changed in a period of 2 to 4 years, a new Board should be appointed which in turn will recruit a new CEO of the airline. The new CEO will then decide which areas of the airline are to continue doing profitable business and which to be closed, if required, based on the work done by the Change Manager to carry forward the airline.

The new Board members should be Pakistanis or overseas Pakistanis and qualified in their respective fields of expertise to have successfully led or operated a large profitable organisation. They should not include any political appointees or senior officers from civil or military bureaucracy and include at least 50% women. An international recruitment firm should shortlist Board members that should do likewise in selecting the CEO of PIA through an international public advertisement.

Prior to initiating these measures, the Parliament should enact a law to place PIA under emergency measures. The act of parliament will protect PIA from any lawsuit filed by a dismissed employee or discontinued vendor or anyone else in the name of public interest and give the court the legal cover to quash such petitions.

It will be naïve to think that there are no competing interests in the restructuring of the national airline. A strong lobby of workers would resist change because it could mean an end of their perks and jobs, irrespective of whether or not the airline is able to pay for them.

There are also political and business interests that will want to see PIA go down as a national airline so that they can benefit from its dismemberment and privatisation.

There are also federal and provincial interests where loss of jobs by a large number of people belonging to one province or ethnic group may be viewed as an attempt by the federal government to disregard provincial representation in the organisation.

There will also be spoilers who would resist change in order to save their own reputation because they couldn’t improve the ailing organisation when they were in charge and when gross neglect, incompetence and corruption set the rot in the organisation.

Whatever the challenges, PIA is a national airline of Pakistan and its issues must be addressed wisely with one step at a time. If PIA was once a rising airline of Asia flying great people around, it can again become a top airline given the intention and effort to make PIA serve Pakistan and its people because they deserve better.

Size Matters: A Case for Enlarging the Composition of Pakistan Parliament

By Syed Sharfuddin*

The structure of state governance in modern times with few exceptions comprises the executive, the legislature and the judiciary each of which are independent of each other to the extent possible according to the system of government followed in a country. Pakistan’s system of governance is parliamentary democracy modelled after the British Westminster Democracy and codified in the 1973 Constitution with all its amendments up to date.

It is said that dictatorships and oligarchies are more efficient and cost effective in delivering political governance compared to representative democracies because the former do not need to follow the requirement of consulting the people except those in position of power. But democracies by their very nature require wider public engagement and consultation. They go through a lengthy process of political debate and enact legislation through a cumbersome legislative process requiring many readings of bills and presidential assent. Their decisions, whether in cabinet or in parliament, are ideally reached by consensus and failing this, by majority vote.

The same principle applies to small and large legislatures. It is easy to enact laws and exercise oversight function by a small legislature compared to a large people’s assembly which is neither cost effective to elect, nor easy to manage and service. But just as democracy is a political necessity for the smooth governance, peace and political stability of a state, a larger legislature is also a necessity for a country, and more so in a federation, which is home to diverse ethnic, linguistic and/or religious populations and regions.

While cost may be one discouraging factor against a larger legislature, there are other mitigating factors, such as confusion and deadlock in reaching decisions due to large number of un-coordinated voices in the assembly or too many committees resulting in over-planning and fragmentation of legislative work. One way to regulate these forces  is to strike a balance and equation between four functions of legislation: 1) the method for electing representatives to parliament; 2) the rules drawn up for legislation; 3) the degree of diverse public representation in parliament; and, 4) the basis of representation through well defined constituencies and electoral quotas.

The present composition of federal parliament in Pakistan is 342 seats in the National Assembly (lower house) and 104 seats in the Senate (upper house). The 342 seats in the National Assembly are made up of 272 general seats for single-member geographical constituencies directly elected on first past the post basis; 60 reserved seats for women and 10 reserved seats for non-Muslims. Against this allocation, women and minority representatives are elected through an indirect proportional representation system where each province is a single constituency for women and the whole country is a single constituency for non-Muslims. In their election, due weightage is given to political parties represented on the general seats. Women seats are allocated proportionally to political parties, which secure more than 5% vote in the national election.

In the Senate 104 seats are filled by an electoral college of members of the national and provincial assemblies . Each of the four provinces, Balochistan, Sindh, Punjab and Khyber PK are allocated 23 members, comprising 14 general seats, four seats for women, four seats for technical experts including religious experts and one seat for non-Muslims. The Federally Administered Tribal Area is allocated 8 seats. Islamabad federal capital is allocated four seats of which two are general seats, one for women and one for technical experts.

Provincial Assemblies are directly elected through adult franchise at the time of general elections for the federal parliament. The Punjab Assembly has 371 seats, Sindh Assembly has 164 seats, Khyber PK Assemby has 124 seats and Balochistan Assembly has 51seats. The number of seats in each provincial assembly depends on the population spread in that province. Women representation in the provincial assemblies is under 20% and religious minorities are under 5%.

There are no reserved seats in the national parliament in either house for khawajasaras, the equivalent of LGBTQ community in Pakistan, or for handicapped persons both of whom are classified as vulnerable groups, although political parties are encouraged by the Election Commission to nominate them from their political platform. There are also no seats reserved for retired military officers or defence personnel in parliament despite the fact that the military has always played a major role in the politics of Pakistan even under civilian democratic rules. There are also no reserved seats in the parliament for Azad Jammu & Kashmir and Gilgit-Baltistan regions.

At the time of the 2017 census, Pakistan’s population was 190.32 million. Taking into account displaced persons during the military operation against terrorists, un-counted women in rural areas and the passage of time since the last census, the population figure could be well near 200 million at the end of 2019. Considering this population, the composition of elected representatives in the National Assembly is considerably very low. In Cuba, which is a country of 12 million people, the size of its national assembly is 605. The Chinese National Congress has 2287 delegates who meet every 5 years to shape policy and decide political positions. In Italy where the population is 61 million there are 630 members in the Chamber of Deputies (lower house) and 315 members in the Senate (upper house) all of whom are elected through adult franchise. In Britain, which is the mother of all democracies in the Commonwealth, for a population of 65 million, there are 650 members in the lower house (House of Representatives) who are directly elected and 793 members in the upper house (House of Lords) who are appointed. Pakistan’s population is three times more than Italy’s and Britain’s population. Ideally, its National Assembly should consist of 1026 members and the Senate should have at least 520 members.

There is a good justification why Pakistan parliament should be enlarged by at least three times from its present composition. Firstly, the parliament of Pakistan is considerably under represented given the large scale of the country’s administrative division comprising Districts (129), Urban Councils (2055), Rural Councils (8145), Local Authorities (9398) and Military Cantonments (56). Secondly, while the executive and the judiciary branches are very well represented in the government, as well as adequately staffed, the parliament is not as much resourced either in the National Assembly or in the Senate. Thirdly, the representatives who get elected to the parliament do not truly represent the diversity of the population, which has its roots in sections of the society other than the wealthy or land-owning people of Pakistan. Although there are quotas fixed for women, technical experts and minorities for representation in parliament, nearly 30 diverse communities or professions do not find their interests directly represented in parliament. Finally, a large parliament would be able to deliver quality performance by enabling its members to develop expertise in different areas of legislation, reduce institutional corruption, spend more time in the constituencies, strengthen committee work and block any one or few political parties or interest groups from shirking responsibility or dominating  the legislative function for their own interests as against the people’s, as has been often the case.

One of the reasons why not much thought has been given to increasing the size of the national parliament in Pakistan is the economic cost of the legislative efficiency where the efficiency of parliament is directly related to its size. While the cost of electing, maintaining and managing a sizeable legislature compared to its legislative output will always work out to be high, a larger legislative could in return result in satisfying the smaller federating units of their higher and more visible representation in parliament; a more efficient and action-oriented committee structure; and a productive division of labour in delivering legislative and oversight functions.

In a large legislature, the government spending would naturally be met through taxes raised in each constituency, thereby reducing the overall revenue collection in the national exchequer. But this can be offset by checking wastage and corruption through a better oversight function and by reducing the salary and perks of the members. For example, the honorarium of an MNA in an enlarged parliament should not exceed the maximum salary of a Grade 19 officer in the federal government. A similar reduced salary scale should apply to Senators. A political ethic should be promoted that they are the leaders of the country who are there to serve, and not to profit or seek privileges and perks. There is also no need to start constructing huge buildings to accommodate the additional members of the enlarged parliament under one roof. The existing infrastructure of the National Assembly and the Senate in Islamabad is sufficient to accommodate a large number of representatives on benches arranged in the Westminster style seating instead of the current First Class airport lounge type seats, which are ideal to relax but totally unfit for public service. A robust committee structure will also mean that all MNAs or Senators will not be required to meet frequently and when they do, a full house session can be convened at the Islamabad Convention Centre where they can make use of all the audio-video and conference facilities available to them at parliament.

A large legislature would also increase the size of the wish list for development projects each constituency would expect its representative to deliver. This expectation is but natural and also happens in the present parliament where people expect the ruling party to deliver on its electoral promises. The case for finding project finance can be turned around by making the larger legislature enact laws and oversee policies, which do not benefit only a privileged section of the population but generate income and growth using the untapped potential of human and natural resources and their clever management and allocation in each of the constituencies.

A parliament comprising over 1000 members can never be a rubber stamp parliament, nor it is possible to do horse trading with its members if they have been elected through adult franchise in a multi-party political system. The strongest argument in favour of having a larger parliament in Pakistan is the political and social conditions in the country, which have dramatically changed from the time when the 1973 constitution was adopted to run a truncated country emerging from the dark shadow of the 1972 breakup of East and West Pakistan. The phenomenal increase in population in which vote-eligible young persons form the majority, the emerging regional voices that need to be heard and given weight and the necessity of looking after the needs of a diverse and frustrated pluralistic society demand that the composition of the National Assembly and the Senate should be increased to at least three times it present membership through a constitutional amendment in the 1973 Constitution. In fact, the National Assembly and Senate seats in Pakistan are fit to serve a country of 42 million, not 200 million population.

Of course the argument of increasing the size of the parliament will be meaningless if more of the same representatives are added to these hallowed chambers for the sake of representation, legislation, ratification of signed international treaties, their enactment into local laws, budgetary allocations and oversight of high-level public appointments & functioning of government ministries and departments. A fundamental reform of the way party workers are nominated and given tickets by political parties also needs to be written into law. We have seen that the affirmative action for women representation has brought many women to high political and decision-making levels but not necessarily improved the quality of parliamentary performance except satisfying feminist groups about gender statistics. We have also seen how money politics has made the entry of good political material into parliament impossible, resulting in same faces and families taking turns at every election under the same or different party flags. In fact the term ‘electable’ used for such persons in the 2018 general election of Pakistan forced a popular reform party to change its electoral strategy and give them preference over its own political workers for grant of electoral tickets.

This reform can be implemented by a constitutional amendment expanding the seats in the National Assembly from 342 to 1026 to be contested generally against single constituencies, and in the Senate from 104 to 520 seats, representing 100 seats for each of the four provinces, 50 seats for AJK representation, 50 seats for Gilgit-Baltistan representation and 20 seats for Islamabad federal capital. The representation of AJK and GB may require further amendment of the Constitution in Article 257, which needs to be reviewed. Some current practices also need to be replaced by other good practice such as abolishing quotas for women, technical experts and non-Muslims for representation in parliament and replacing these by making it mandatory for political parties to nominate at least 33% women; 10% non-Muslims; 10% ex-military officers, 3% handicapped and 2% khwajasaras from their party platform for the general seats. Where political parties lack such diverse membership, they should be assisted by the Election Commission to start a broad based party recruitment drive.

With a larger pool of Senate seats it should be possible to allocate all the seats to a wider section of the population representing various professions and diverse interest groups comprising political workers, fishermen, miners, ex-MNAs & MPAs, farmers & farm workers, trade union members, retired judges, barristers & bar members, bankers, financial experts, academics, media persons, doctors, nurses, social workers, businessmen, vendors & traders, ulema, youth representatives, retired military officers, senior citizens over 70 years of age, transporters, builders, engineers, general contractors, hoteliers, IT professionals, retired bureaucrats, ex-diplomats, scientists, artists, poets & writers and housewives. Political parties must be obliged to nominate at least 3 persons from each of the above professions/group for the Senate elections to make up the total of 100 seats allocated to each province.

The Election Commission should also follow this up by changing some of the electoral rules for political parties. For example, multiple-constituency candidacies for general election should be made illegal as it usurps the right of other deserving political workers to become candidates because an influential person in the political party gets nominated against multiple constituencies. A political party, not meeting the electoral requirements should be heavily fined, including the possibility of it’s de-registration for consistent violation of electoral rules.

These changes will make the country’s legislature more effective in representing the diversity of the people through their chosen political parties and enable this important state institution to exercise an efficient and qualitative legislative and oversight function freely within the existing constitution and political system. However, to do so the parliament will also need to manage its large size effectively, and given the necessary political space and provided the required technical, IT and administrative support to enhance its capacity.

25 December 2019

*The writer is an ex-diplomat, an election expert and a political analyst for South Asia region.

Kashmir’s Instrument of Accession: Separating Myth from Reality

Syed Sharfuddin

This paper examines the chronology of accession of Kashmir with a view to finding answers about the timing and authenticity of the instrument of accession signed by the ruler of the State of Jammu & Kashmir on 26 October 1947, which is the date of accession according to official Indian account. Some scholars have refuted this stand and relied on the evidence that the Maharajah of Kashmir signed the instrument of accession after Indian troops landed in Srinagar on the morning of 27 October 1947. This leads to the question would such accession be valid in law if it were extracted through blackmail and duress.

On the eve of the partition, there were 565 officially recognised princely states in British India, which covered 40% of land and 23% population of the Colony. The Government of India Act 1935 had provided the establishment of an all India federation, subject to 50% of the princely states joining it to be effective. In the event, the princely states did not join and the federation never materialised.

Subsequently, in January 1946, provincial elections were held in British India to ascertain the wishes of the people in regard to the creation of the new successor dominions of India and Pakistan. Princely states did not take part in these elections.

The British government had introduced the concept of Paramountcy in the governance of princely states which established the authority of the ruler over his subjects. Princely states were excluded from the partition of British India. Their rulers were given the option to accede to the successor dominions of either India or Pakistan. Unlike the Government of India Act 1935, the option of claiming independence was not explicitly given to the princely states in 1947.

The Paramountcy principle ran contrary to the democratic principle of the 1946 provincial elections of British India. According to this principle, the ruler was supreme in deciding the fate of his state. Vallabhbhai Patel opposed this principle because he feared that after the British left India, the rulers of princely states would declare independence instead of joining the successor dominions. It is, however, ironic that while India benefited from the Paramountcy principle in Kashmir, it opposed its application in Junagadh and Hyderabad. In Kashmir, what suited India was the Paramountcy of the ruler but in the other two states India chose instead, the Paramountcy of “popular interests and welfare.”

This explains the motif behind India’s annexation of those princely states which opted to remain independent against the wishes of the Indian Viceroy Lord Mountbatten and Prime Minister Jawaharlal Nehru. The states, which were subsequently taken by India, were: Hyderabad (annexed in 1948 along with Junagadh), Pondicherry (1951), Goa, Daman & Diu (1961), Sikkim (1975) and occupied Jammu & Kashmir (2019). The only exception was Bhutan but to remain independent it had to surrender part of its sovereignty to India in the Indo-Bhutan Treaty of Friendship 1948.

In July 1947 the Indian States Department despatched a draft Standstill Agreement to all the rulers of princely states in India suggesting its finalisation at a conference to be held in Delhi on 25 July 1947. The Standstill Agreement provided for the continuation, for the time being, of all existing agreements and administrative arrangements in matters of common concern between the acceding state and the successor dominion. The Government of India made the acceptance of Standstill Agreement conditional on accession by the concerned states.

At the July 1947 meeting, which was chaired by the Viceroy, Lord Mountbatten, a proforma draft Instrument of Accession was also distributed and agreed by the rulers. Most rulers agreed to the Standstill Agreement. They also agreed to accede to the successor Indian dominion on 15 August 1947.

The Hyderabad police action, carried out on the direction of Sardar Vallabhbhai Patel with the knowledge of Nehru (II) resulted in the deaths of 40,000 Muslims.

The fighting in Kashmir cost an estimated 100,000 Muslims dead and refugees in the Jammu massacres and about 20,000 Hindus and Sikhs in the Mirpur massacres.

These numbers are far greater than the murder of 2000 Muslims in the Gujarat riots in 2002 and the earlier killings of 3000 Sikhs in the 1984 Delhi riots.

Maharajah Hari Singh’s State of Jammu & Kashmir was not a stable political entity. Long before partition, he had lost control of Gilgit Agency and Northern areas, which were leased out to the British from 1935 to 1947. Maharajah Hari Singh’s writ in Poonch, Bhimber and Mirpur was marred by popular dissent and hatred, caused due to his discriminatory treatment of his subjects, high taxes and humiliating treatment of the descendants of his grandfather’s family of Dhian Singh. His subjects in these areas did not consider Hari Singh as the “spiritual heir” to his predecessor Maharajah Pratap Singh who died issueless and without a son. Maharaja Hari Singh’s loyal subjects were concentrated in Kashmir, Jammu and Laddakh. In the Srinagar valley most of his subjects were Muslims who were supporters of either National Conference of Sheikh Abdullah or Muslim Conference of Chaudhry Ghulam Abbas.

Faced with these circumstances, the Maharajah needed time to decide the future of his state. In a telegram sent to the successor dominions of India and Pakistan on 12 August 1947, Prime Minister Ram Chandar Kak wrote: “Jammu & Kashmir Government would welcome Standstill Agreements with India/Pakistan on all matters on which these exist at present moment with outgoing British India Government. It is suggested that existing arrangements should continue pending settlement of details.” Pakistan agreed to sign the Standstill Agreement in the hope that the Maharajah will make the popular choice of acceding to Pakistan. India invited the Prime Minister to visit Delhi to negotiate the agreement. In October 1947, Maharajah Hari Singh replaced Ram Chandar Kak with Mehr Chand Mahajan. The Standstill Agreement was never signed by India.

There were two reasons which made Pakistan hopeful that the Maharajah, if he could not keep Kashmir as an independent state, might join Pakistan: the Maharajah distrusted Congress leaders, including Nehru and Patel and felt no Hindu affinity toward India because he was himself a non-practicing Hindu. He had also placed Sheikh Abdullah in jail. (VI). Hari Singh’s sole interest was to save his position and his state.

Indian historians have stated that Pakistan violated the Standstill Agreement by sending tribal militias to Kashmir, thereby provoking India to react in the manner it did on 27 October 1947. But in reality, Jinnah had no information about the tribal rebellion(VII).

What was happening in the State of Jammu & Kashmir following the partition of India was an internal struggle for power, which involved only Maharajah’s subjects. The governments of Pakistan was not involved. In fact Pakistan was so careful in maintaining its neutrality in Kashmir that when Major William Brown sent a cable to his commanding officer in Rawalpindi informing him that Gilgit had acceded to Pakistan, Col Iskandar Mirza wanted him disciplined for stepping out of his responsibilities as CO of Gilgit Scouts. How Gilgit and Baltistan got out of Kashmir is another story we will discuss on some other occasion. The Government of Pakistan also kept quiet on the requests of accession of Hunza and Nagar for weeks until Liaqat Ali Khan was told that if Pakistan did not accept their accession they would seriously consider joining Russia.

The command of the Indian and Pakistani army in the early days of the independence was in the hands of British military officers who were under strict orders from their Supreme Commander, Field Marshal Sir Claude Auchenleck not to commit their officers in any situation. The people in Poonch, Gilgit and the North West were outside the control of the Pakistan state.

When M A Jinnah leant about the Indian intervention, he made a radio broadcast on 28 October and declared that “the Government of Pakistan cannot recognise accession of Kashmir to India, achieved as it has been by fraud and violence”.

While things were deteriorating in Kashmir,

I have come across criticism that while things were deteriorating in Kashmir,Muslim League leaders in Pakistan made no effort to cultivate Sheikh Abdullah or the Maharajah. (VIII).  But it is a fact that Pakistan made attempts to engage with Maharajah Hari Singh over the question of accession. But his Prime Minister gave cold shoulder to the envoy of M A Jinnah, Major A S B Shah who visited Kashmir in October 1947 to negotiate the terms of Kashmir’s accession to Pakistan. Maharajah’s officials not only refused to give Major Shah a meeting with the Maharajah but also told him to get lost.

But India was busy sending wireless equipment, arms and ammunition to the Jammu & Kashmir State to bolster Maharaja’s fighting capacity. In September 1947 India also sent a military Adviser to Jammu & Kashmir State. He was a serving member of the Indian army. The new Prime Minister of Maharajah Hari Singh, Mehr Chand Mahajan was a friend of India. He was also a member of the Punjab Commission whose Chairman Sir Cyril Radcliffe connected Kashmir to the Indian Punjab by awarding Batala and Gurdaspur to India which according to the partition formula of June 1947, should have come to Pakistan. According to Professor Pervaiz Iqbal Cheema, Lord Mountbatten was concerned about India remaining in the Commonwealth after independence, and therefore he influenced Sir Cyril to provide India access to Kashmir through Punjab.

It is said that Maharajah Hari Singh would not have rushed to accede his State to India, had there been no large scale Muslim tribal invasion of his State from the west. This is only party true. The Maharajah had already made up his mind to join India and not Pakistan, unless he found a way out to remain independent. He was gradually losing control over his State so much so that by October 1947 he was sure Srinagar would fall, forcing him to flee to Jammu.

The Poonch uprising had its roots in the historical hatred of the locals toward the Maharajah. A similar uprising had taken place in Poonch in 1830 during the reign of his grandfather Gulab Singh. In the NWFP, the tribal Pathan advance toward Kashmir was in retaliation for the death of thousands of Kashmiri Muslims in Jammu at the hands of Dogra army on the eve of the partition.(IX)

Chronology of Accession

The chronology of the instrument of accession revolves around four days – from 24 to 27 October 1947.

24 October 1947

On 24 October Maharaja Hari Singh sent his Deputy Prime Minister R L Batra to Delhi to discuss his terms for conditional accession. On the same day, the tribals cleared many road blockades to continue their advance toward Srinagar. Hari Singh fled in panic to Jammu.

Lord Mountbatten felt that if Kashmir fell, a large tract of territory, which he thought ought to go to India would end up in the lap of Pakistan. Mountbatten did not like M A Jinnah and did not want him to appear victorious over Kashmir

25 October 1947

The next day, on 25 October 1947, Indian Defence Committee met and concluded that if nothing was done, Srinagar will fall to the rebels and Kashmir will be lost to Pakistan.

Lord Mountbatten felt that if Kashmir fell, a large tract of territory, which he thought ought to go to India would end up in the lap of Pakistan. Mountbatten did not like M A Jinnah and did not want him to appear victorious over Kashmir. Moreover, he did not want Nehru to be thrown to the hawks in the Congress such as Vallabhbhai Patel who had been saying all along that Kashmir should be taken by India in the same way as they took Hyderabad.

Nehru played his cards smartly. On 25 October he sent a telegram to Prime Minister Clement Attlee in London, highlighting the geo-political implications of a lost Kashmir for India, and by implication, for Britain and the Western world. The telegram read: “Kashmir’s northern frontiers … run in common with those of three countries – Afghanistan, the Soviet Union and China. The security of Kashmir … is vital to the security of India”. By referring to the great game politics of the region, Nehru ensured British acceptance of the military action India was going to take to stop the advance of Azad Kashmiri militia for liberating Kashmir. It also satisfied Mountbatten who was concerned about the safety of about 450 British subjects living in Kashmir.

On 25 October, Secretary V P Menon flew to Srinagar to meet the Maharaja and other Kashmiri Pandits such as D P Dhar and Dwarkanath Kachru. He returned to Delhi with Kashmir’s Prime Minister Mehr Singh Mahajan and a couple of Indian army and air force officers who had done their recce of the Valley to finalise Indian counterattack in Kashmir. Sheikh Abdullah also flew to Delhi and stayed at the residence of Jawaharlal Nehru.

All that was left now, was to get the Maharajah to sign the instrument of accession. His Prime Minister and Deputy Prime Minister were in Delhi to conduct negotiations.

In principle, Mountbatten did not want India to send troops in Kashmir without the signed letter of accession by the Maharajah. But the gravity of the situation forced him to approve Indian deployment prior to receiving the signed instrument.

26 October 1947

On 26 October 1947, several sets of negotiations took place in Delhi involving Sheikh Abdullah, Mehr Chand Mahajan, V P Menon, Lord Mountbatten, Jawaharlal Nehru and Baldev Singh, Minister of defence. The agenda of these meetings was India’s military action, future relationship between the State of Jammu & Kashmir and the Indian Union and relations between Hari Singh, Sheikh Abdullah and Mehr Chand Mahajan.

Mehr Chand Mahajan demanded from Nehru unconditional Indian military help. In return, Nehru wanted concessions from the Maharajah comprising a signed instrument of accession and Sheikh Abdullah becoming the Chief Minister of the State. Mahajan said if Indian army did not help, he would go to Lahore and seek help from Jinnah. The agreement did not take long to reach but it was subject to the approval of the Defence Committee.

The Maharajah who was in Jammu was unaware of the bargain his Prime Minister had made in seeking Indian military help in return for inclusion of the National Conference of Sheikh Abdullah in the governance of the State.

Later that day, the Indian Defence Committee met and received a report from V P Menon on the advance of the rebels. Menon reported that things were so bad that the rebels could reach Srinagar in the next 12 hours and there could be a bloodbath in the Valley involving Muslims and Hindus and Sikhs. Lord Mountbatten was extremely angry. He felt that Jinnah masterminded this advance to get Kashmir for Pakistan.(X)

In principle, Mountbatten did not want India to send troops in Kashmir without the signed letter of accession by the Maharajah. But the gravity of the situation forced him to approve Indian deployment prior to receiving the signed instrument.

Nehru asked Mehr Chand Mahajan and V P Menon to fly to Jammu and inform the Maharajah what had been agreed, and obtain his signature on the instrument of accession. Mahajan refused to leave until if was confirmed to him from his sources in Srinagar that Indian troops had landed in Kashmir. In his estimation, Mahajan had accomplished what Maharajah had instructed; get India’s help without the signature of the Maharajah on the instrument of accession.(XI)

In his memoirs, V P Menon claims that he travelled from Delhi to Jammu on 26 October and returned with the instrument of accession signed by Hari Singh. But according to another record, V P Menon told the British Deputy High Commissioner in Delhi on 26 October that he will fly to Jammu next day. From three other sources, namely, Nehru’s letter to Maharaja dated 27 October, Mehr Chand Mahajan’s autobiography and Maniben Patel’s memoirs it is confirmed that Menon did not arrive in Jammu before 27 October well after the start of the Indian military operation in Srinagar. (XII)

From these documents, it is clearly established that in the night of 26 October when arrangements were being finalised for Sikh soldiers to reach Srinagar by the break of dawn, there was no letter of accession in the custody of India. At a dinner with the English reporter of the Calcutta Statesman, Lord Mountbatten also confirmed that: “the Maharajah’s formal letter of accession was [still being] finalised”.(XIII)

According to Indian records, Hari Singh wrote a letter to Lord Mountbatten on 26 October 1947 with which the signed instrument of accession was attached. This was probably the letter V P Menon drafted for the Maharajah in Delhi on 26 October and got him to sign it on 27 October. Alastair Lamb finds it hard to believe that the Maharajah, having fled from Srinagar in a hurry and worried about his future, would have retained his wits to write such a letter himself on 26 October. The letter said: “it was my intention to set up an interim government and ask Sheikh Abdullah to carry out the responsibilities in this emergency with my Prime Minister”. Alastair Lamb questions as to how the Maharajah could have accepted Sheikh Abdullah, who he had imprisoned until a month ago, to be involved with the setting up of the interim government in Jammu & Kashmir. Lamb also points out that for many years the Government of India did not make public the signed instrument of accession, which was “attached” to Maharaja’s letter.(XIV)

It is possible that Mountbatten was aware that the instrument of accession and the cover letter which bore the date 26 October 1947 was eventually going to be signed by the Maharajah on 27 October, irrespective of whether it preceded or followed the Indian military deployment in Srinagar on the day. What was important for all sides at that time – India, Maharajah, Sheikh Abdullah and Mountbatten – was to save Srinagar before it was run over by the desperate bands of the Pathan tribes and soldiers of Major Khurshid Anwar and Colonel Akbar Khan.

27 October 1947

There are various Indian accounts about the signing of the instrument of accession on 27 October. Alastair lamb writes that the first Indian batch of Sikh soldiers landed in Srinagar at 9:00 am. According to one account, the Maharajah signed the instrument of accession before the Indian troops landed in Srinagar. Another account says the instrument was signed at “first light” on the morning of 27 October.(XV)

The India White Paper on Jammu & Kashmir says that on 25 October 1947 the Government of India directed the preparation of plans for sending troops to Kashmir but troops were sent on 27 October following the signing of the instrument of accession. (XVI)

Neither the proposal for  going to the UN nor holding a plebiscite in Kashmir came from Pakistan.

28 October 194

Lord Mountbatten could not envisage a truncated India, which depended on Pakistan for the source of its riparian waters. He went along with the false Indian narrative of “troops deployment following the accession” knowing that Pakistan could react in retaliation and a situation of an inter-dominion conflict could arise in the Commonwealth resulting in a major crisis, involving King George VI as Head of the Commonwealth. In fact when M A Jinnah leant about the Indian intervention, he made a radio broadcast on 28 October and declared that “the Government of Pakistan cannot recognise accession of Kashmir to India, achieved as it has been by fraud and violence”.

Jinnah proposed sending Pakistani soldiers to Kashmir, but he was prevented from doing so by Field Marshal Sir Claude Auchinleck. Auchinleck suggested that if Jinnah insisted on this course of action, he would ask General Gracey to withdraw all British officers from Pakistan armed forces.

On 28 October 1947, Lord Mountbatten replied to the Maharaja’s letter of 26 October 1947 which said: “it is my government’s wish that as soon as the law and order have been restored in Kashmir and her soil cleaned of the invaders, the question of the State’s accession should be settled by a reference to the people”.

Following Mountbatten’s suggestion, Prime Minister Clement Attlee wrote to Prime Minister Nehru on 30 October 1947 proposing a detailed plebiscite plan for Kashmir.

On 1 & 2 November 1947, Jinnah and Sheikh Abdullah accepted the plebiscite idea. Nehru also said that his government was committed to organising a plebiscite in Kashmir (XVII)

On two occasions, following the accession of Kashmir, Nehru avoided a direct contact with Jinnah in order not to commit himself to the mechanism and date of the plebiscite. (XVIII)

Part of the blame for the Kashmir tragedy goes also to the leaders of two main Kashmiri political parties. On the question of accession, there was no interaction between Sheikh Abdullah of National Congress and Chaudhary Ghulam Abbas of Muslim Congress.

The British government made 7 attempts to mediate in the Kashmir conflict but Nehru managed to stay away from any meaningful discussion on any proposal.

On 1 January 1948, India took the Kashmir issue to the UN Security Council appearing before the world body as the victim of aggression by Pakistan. The same policy seems to be directing India’s present foreign policy on Kashmir: to present itself to the international community as the victim of attacks by Pakistan based terrorists.

Conclusion

Accession of Kashmir to India was achieved by fraud and violence and, as such, was illegal and unacceptable. The letter of accession has never been made officially public by India. In 1971 it appeared in the printed letters of Vallabhbhai Patel in 1971. In 2016 an Indian researcher Venkatesh Nayak posted true images of the signed copy of the instrument of accession kept in the National Archives of India [https://thewire.in/history/public-first-time-jammu-kashmirs-instrument-accession-india/amp/].

Indian military action in Kashmir on 27 October 1947 preceded the signing of the instrument of accession which made its status in Kashmir one of occupying force. There is no information available until now about the conditionalities attached to Maharajah Hari Singh’s signed instrument of accession. The Maharajah signed the same proforma instrument, which other rulers signed when acceding to India. Therefore, it does not stand to reason why Kashmir was treated differently from Hyderabad or other former princely states? Was Sheik Abdullah bribed to accept accession in return for the special status of Kashmir provided in Articles 35A and 370 of the Indian Constitution which lasted 70 years. And if those statutory protections are now gone, doesn’t Kashmir get back falling in the same position as existed on 26 October 1947. These are questions arising out of India’s own record on Kashmir.

If the process of accession was complete in the case of Kashmir, as claimed by India, it is not understood why Lord Mountbatten, only a day after the Indian intervention in Kashmir called for the “question of accession to be settled by a reference to the people”. Prime Minister Clement Attlee also supported the plebiscite.

Part of the blame for the Kashmir tragedy goes also to the leaders of two main Kashmiri political parties. On the question of accession, there was no interaction between Sheikh Abdullah of National Congress and Chaudhary Ghulam Abbas of Muslim Congress. The lack of trust between them encouraged V. P. Menon to paint a grim picture of Srinagar and claim that it was sliding toward a civil war. This influenced Mountbatten to review his earlier stance that ‘accession should precede intervention’ in order to authorise the despatch of Indian troops to Srinagar on the morning of 27 October 1947 to avert a bloodbath of the civilians.

It should be realised that while going to the UN and calling for a plebiscite in Kashmir may keep the Kashmir dispute alive internationally, none of the two options is ever going to materialise.

Neither the idea of going to the UN nor holding a plebiscite in Kashmir came from Pakistan. However, while the initiators of these ideas (India and Britain) have abandoned their support for these options, Pakistan has strongly clung to them as possible solutions for the Kashmir problem. It should be realised that while going to the UN and calling for a plebiscite in Kashmir may keep the Kashmir dispute alive internationally, none of the two options is ever going to materialise. The UN will never be able to force India to accept international mediation on Kashmir. Similarly, there will never be a plebiscite in Kashmir because the preconditions for its conduct will remain controversial and never be met by either country fully.

A solution will need to be found in establishing Pakistan’s own historical, constitutional and political claim on Kashmir.

Historically, Pakistan should use the formula of partition, which took into account the principle of majority view when determining the accession of the princely states, notably in the case of Junagadh, Hyderabad and Kashmir. On the basis of this principle, Kashmir belongs to Pakistan and not India.

Constitutionally, Pakistan needs to amend the 1973 Constitution in regard to Kashmir and change Articles 1 and 257 by two third majority of the constituent assembly to establish its claim on Kashmir in law.

Politically, Pakistan should integrate Gilgit-Baltistan, Azad Kashmir and the Occupied Kashmir as the 5th, 6th & 7th provinces in the federation. The 7th province should be inducted when conditions are conducive for its inclusion in the federation of Pakistan.

Let me also make a reference to a sensitive subject, which no one wants to touch for the time being. It is the option of Independence for Kashmir. Lord Mountbatten and Prime Minister Jawaharlal Nehru were both opposed to the option of independence of princely states. The states, which did not join India on the eve of partition and instead opted for independence did not remain independent for long and were sooner or later annexed with India. Therefore the question of accession to be settled by a reference to the people of Kashmir, if it is ever allowed, will be to either to join with India or Pakistan. The third option does not exist in the context of the historical precedence of princely states.

London: 1 October 2019

About the author:  Mr Syed Sharfuddin is a former diplomat and a former Special Adviser in the Commonwealth Secretariat, London. He specialises in South Asian politics, conflict resolution and election observation.

Notes:

i. Alastair Lamb, Kashmir: Birth of a Tragedy 1947, Roxford Books, UK 1994; Andrew Whitehead, A Mission in Kashmir, Chapter 5, Penguin India, 2008; Mr Abdul Majid Zargar, Kashmir Accession Document Shrouded in False Myths, zargar271013.hm, www.countercurrents.org; Dr Abdul Ahad, Kashmir: Triumph and Tragedies, Chapter 23, Gulshan Books, India, 2012.
ii. According to the Sunderlal Committee’s report, which was not released until 2013, the number of Muslims who died during or after police action in Nizam’s State ranged between 27-40,000. According to another report, the number was 40,000. Pankaj Mishra, India at 70: The Passing of Another Allusion. New York Times, 11 August 2017.
iii. Christopher Snedden, Understanding Kashmir and Kashmiris, Oxford University Press, 2015.
iv. Das Gupta and Jyoti Bhusan, Kashmir and Kashmiris, Springer 2012.
v. Hari Singh’s love of western clothes and a liberal lifestyle was one of the reasons why Maharajah Pratap Singh, who was a devout Hindu, did not name Hari Singh (his nephew) as heir to the throne of Jammu & Kashmir. Instead, Maharajah Pratap Singh named Jagat Dev Singh from the Dhian Singh’s family line from his grandfather side as his “spiritual heir”. The British Indian States Department, however, overruled Pratap Singh’s Will and appointed Hari Singh as the Maharajah of Jammu & Kashmir, possibly because they could exploit his weaknesses about which they had ample information during his student period in London.
vi. Neither the Northern tribesmen nor the Gilgit Scouts were under Pakistan’s control, although, according to the Governor of NWFP, Sir George Cunningham, the officials of the Pakistan government were of two minds – either to turn a blind eye to the developments, or to express concern that this will precipitate the Maharajah to act in panic and join India.
vii. Safeer Ahmad Bhat, Jammu and Kashmir on the Eve of Partition- A Study of Political Conditions, South Asian Studies: Vol. 32, No. 2, July – December 2017, pp.285 – 295-
viii. Ibid
ix. Ian Stephens, Pakistan, London 1963.
x. M C Mahajan, Looking Back, London 1963.
xi. V P Menon, The Story of the Integration of Indian States, 1956.
xii. V P Menon, Ibid; LP&S/13/1845b,ff 283-95-India office records; M C Mahajan page 154, op cit; Nehru’s letter of 27 October to Maharajah Hari Singh, India office records; Ian Stephens, op cit; and Noorani-Frontline 24th March 1995.
xiii. An instrument of accession bearing the signatures of the Maharajah and Mountbatten was included in the collected correspondence of Sardar Patel. The text of instrument is the same as was approved for all princely states in the meeting of rulers on 25 July 1947. Sardar Patel’s Correspondence 1945-50 Vol I, Durgadas, New Light on Kashmir, Ahmedabad, 1971.
xiv. J Korbel, Danger in Kashmir, Princeton 1966.
xv. India White Paper on Jammu & Kashmir, New Delhi, 1948
xvi. The idea of plebiscite first came from Nehru on 30 September in the context of Junagadh whose Muslim leader had acceded to Pakistan.
xvii. Nehru did not accept Jinnah’s proposal to convene a special conference on Kashmir in Lahore on 29 May even though Mountbatten had agreed to it. Criticising Nehru, Sardar Patel said: “for the Indian PM to go crawling to Jinnah when we are the stronger side and in the right, would never be forgiven by the people of India.” Mountbatten tried again by joining the meeting with the meeting of the Defence Committee in Lahore on 1 November but Nehru again stayed away feigning this time, diplomatic illness. At this meeting, Mountbatten tried to assure Jinnah that the Maharajah had signed the letter of accession to India but His Majesty’s government wanted the people to decide the fate of the state through a plebiscite.

Also see:
https://www.countercurrents.org/zargar271013.htm
https://core.ac.uk/download/pdf/32578917.pdf
https://link.springer.com/chapter/10.1007/978-1-349-11556-3_10
https://www.academia.edu/385642/HISTORICIZING_PAKISTAN_S_KASHMIR_POLICY
https://thewire.in/history/public-first-time-jammu-kashmirs-instrument-accession-india

Thomas Cook: Obituary of an Institution

By Syed Sharfuddin*

This week the good old Thomas Cook, the travel and tourism company founded 178 years ago breathed its last after failing to raise £200 million demanded by its creditor banks by Sunday midnight on 23 September 2019. Thomas Cook was bailed out once before 8 years ago, but it continued to face financial and administrative problems, including loss of core travel revenue from sales of package holidays, as well as travel insurance and foreign exchange trading.

The company had read the writing on the wall for its collapse a year ago and in July had come up with a business plan identifying the money required for a complete overhaul of the business. However, it turned out that in addition to the £900 million needed as additional funding, another £200 million were required for the implementation of the plan. This under estimation, combined with the bills to be paid by Thomas Cook to its travel partners at the end of the 2019 summer season forced the banks to demand that the company come up with £200 million urgently to prove that it was able to carry on trading on the stock market. Failure to do so would risk bankruptcy.

Although Thomas Cook had successfully negotiated a partial rescue deal with a Chinese investment firm FOSUN and cut down on the number of high street shops in cities, these measures were not sufficient to raise the required sum to give Thomas Cook a new lease of life.

The company had a very loyal and committed staff force. On an average the Thomas Cook staff did not hop ropes from one employer to another but stayed with the company for more than twenty-five or thirty years

The company website listed three customer promises: Quality, Service and Reliability. Its 24 hour hotel promise said: “if your hotel isn’t what we described, we’ll sort it out within 24 hours of you contacting us, or move you to another hotel. If we can’t fix it, you can continue your holiday and we’ll give you a voucher for 25% of the total amount paid, or take the next available flight home, and we’ll refund the cost of your holiday”. Thomas Cook staff received regular training in customer service, due diligence and multi tasking, combining different roles to provide a well-rounded experience of travel industry. The company had a very loyal and committed staff force. On an average the Thomas Cook staff did not hop ropes from one employer to another but stayed with the company serving for more than twenty-five or thirty years. It is deeply disappointing that with such a strong focus on customer service and a loyal staff base, Thomas Cook went down under with a reputation and standing which few businesses today aspire for, and only some are able to achieve.

Thomas Cook was a quintessentially British institution, which had seen the British Empire rise and fall and take to the seas and air, spreading the good and glorious English language and the rich Anglo-Saxon values and cultural heritage to the colonies and the rest of the world

In the weeks before its collapse, the company identified a number of factors for its low performance in the volatile international travel market which included, among others, stiff competition from internet based travel services suppliers, a weak Pound, the long hot summer affecting sales and adverse travel advisories on some of its popular destinations. But the biggest factor responsible for its downfall was poor leadership and management and absence of an innovative and competitive business model adapted to the changing travel industry landscape. Thomas Cook also neglected expanding its loyal customer base by not cultivating young urban and internet-savvy professionals who are as passionate about going on holidays as a Christian about pilgrimage.

The company was founded in Market Harborough in Leicestershire in 1841 by an English businessman, Thomas Cook. His son joined him in the business and Thomas Cook became Thomas Cook and Son. Taking advantage of the affluence brought by the industrial revolution and the interest shown by the rich and noble in the colonies ruled by Britain, the company grew rapidly selling train journeys, travel equipment, travel guidebooks and hotel coupons. It specialised in bookings for overseas stays offering airline connections, sunny destinations, sandy beaches and city breaks.

In the early days of independence, Thomas Cook Travellers Chequers were the only secure alternative to cash US Dollars or Pounds. These were warmly accepted and duly honoured by the local airlines, hotels and banks in India and Pakistan

As Thomas Cook grew in England, it also began to reach out to the colonies. The company established branches in the newly independent former colonies. I was told by my father that when he travelled from Pakistan to India to get married in the former Princely state of Hyderabad in 1952, he took with him a couple of hundred Thomas Cook Travellers Cheques which were warmly accepted and duly honoured by the local airlines, hotels and banks in both India and Pakistan. In those days, Thomas Cook Travellers Chequers were the only secure alternative to cash US Dollars or Pounds. Years later in 1982, when I travelled from Islamabad to Washington to join work, I too carried a bundle of Thomas Cook Travel Cheques, although American Express Credit Card and Amex Travellers Cheques had also come in the market as strong competitors of Thomas Cook’s financial services. For a long time in the Commonwealth countries, Thomas Cook remained the top travel agent and the most trusted travel partner of officials and businessmen travelling abroad.

It is interesting that Thomas Cook and the Colonial Office went hand in hand without any formal arrangement. Almost everyone who served the Raj, whether British or recruited from overseas for the military or civil services, never abandoned Thomas Cook. Even the children of this privileged class followed their parents in using the services of Thomas Cook for their private and official travel requirements for many years.

By the start of the millennium, Thomas Cook operated its own charter flights to over 60 destinations in 16 countries with a staff of 22000 trained personnel. The travel company made sales of £9 billion, serving 19 million customers annually. It facilitated half a million tourists (150,000 of whom British) staying in its signature hotels in Europe, Africa, Asia, Australia, New Zealand and the Americas per day in the peak holiday months. Thomas Cook also took tourists to China and Cuba.

Thomas Cook won’t be around when travel agencies will start taking their first bookings for the moon, if they still exist by then.

Thomas Cook was not just any British company doing business to make money for itself and its shareholders. Until its share price slumped this year, Thomas Cook was trading strong in the stock market. It was a quintessentially British institution, which had seen the British Empire rise and fall and take to the seas and air, spreading the good and glorious English language and the rich Anglo-Saxon values and cultural heritage to the colonies and the rest of the world. The Government should not have treated Thomas Cook like just another business. It is sad that the government ignored the calls from within the business and political circles to come to Thomas Cook’s rescue by taking an equity share of £200m to save this glorious British flag carrier from collapse, putting 9000 workers out of job in these challenging times. RIP Thomas Cook. It would not be around when travel agencies will be taking their first bookings for the moon, if they still exist by then.

*Syed Sharfuddin is a former special adviser in the Commonwealth Secretariat London and writer of a book: Islamabad Travel Guide. http://www.commonwealthexperts.co.uk
Although his wife worked for the company, Mr Sharfuddin had no connection with Thomas Cook. sharfuddin@commonwealthconsultants.co.uk

London: 23 September 2019

Did Imran Khan miss his CMC moment and lose Kashmir?

By Syed Sharfuddin*

If the 1999 Kargil war was the botched Bay of Pigs invasion for Islamabad, the unprecedented step taken by New Delhi on 5 August 2019 to annex and divide the occupied state of Jammu and Kashmir was no less than the U2 plane discovery about USSR placing nuclear missiles inside Cuba in 1962 only 150 miles away from the US mainland.

For a change let us place the current Indo-Pakistan tensions in the setting of the cold war years of 1960s between two nuclear rivals, the US and the former USSR, each of which embraced the doctrine of mutually assured destruction wholeheartedly in the belief that this was the only mad way to avoid the annihilation of human race the world should never see. In that uncertain decade, both countries jealously guarded their respective zones of influence: the US in South America and the former USSR in Central Asia. Both countries also courted other countries, especially in Eastern and Western Europe respectively and the newly independent former colonies as a measure of their foreign policy success.

If the 1999 Kargil war was the botched Bay of Pigs invasion for Islamabad, when Pakistan’s military command failed to recapture the territory lost to India in the 1971 war, the unprecedented political step taken by New Delhi on 5 August 2019 to annex and divide the occupied state of Jammu and Kashmir was no less than the U2 plane discovery that USSR was placing nuclear missiles inside Cuba to bring its attack capability only 150 miles away from the US state of Florida.

Back then in 1962, it was a decisive event in the history of the US-USSR relations. President John F Kennedy had to take the tough decision to either allow it to happen but with a strong diplomatic protest and UN and international pressure to keep Moscow away from any misadventure, or call Nikita Khrushchev’s bluff by threatening to go to any extent, including the prospect of a nuclear war against the USSR. In this nerve wrecking display of brinkmanship backed by military will and a determination not to give up, the USSR blinked first and agreed to remove its missiles from Cuba, provided the US did not attack Cuba. Nikita Khrushchev also demanded that the US withdraw its nuclear missiles from Turkey, which posed a threat to the USSR. The Kennedy administration agreed to the first Soviet condition publicly, but decided to meet their second condition quietly. The world breathed a sigh of relief that the crisis, which started on 16 October was over after 13 breath holding days on 28 October 1962.

Could it be that India’s far reaching measure in the disputed territory of Jammu and Kashmir on 5 August 2019 was no less than the Cuban Missile Crisis (CMC) moment for Prime Minister Imran Khan, which tested his ability to act decisively in times of extreme crisis and also checked out if Pakistan had the resilience and courage to challenge India in the same tone and manner as the US had done the USSR in 1962?

Could it be that India’s far reaching measure in the disputed territory of Jammu and Kashmir on 5 August 2019 was no less than the Cuban Missile Crisis (CMC) moment for Prime Minister Imran Khan, which tested his ability to act decisively in times of extreme crisis and also checked out if Pakistan had the resilience and courage to challenge India in the same tone and manner as the US had done the USSR in 1962? The reaction time for this response was short, lasting only few days when Indian political opposition, as well as Indian public opinion was deeply divided on the BJP government’s surprise action in Kashmir. The jailed and house-arrested J&K National Conference leadership, which had since 1947 consented to stay with India as part of the accession agreement, signed by Maharaja Hari Singh on 26 October 1947 with reservations, was regretting its decision to have discarded the two-nation theory. The world anxiously waited to see how Pakistan would react to this development in a disputed territory with India on which it has never compromised both diplomatically and in the battlefield. Even within the BJP leadership there were fears that this action was too precarious and may start a war with Pakistan, coming soon after the show of nerves in the aftermath of the downing of two IAF planes by PAF on 27 February and the return of the captured Indian officer on 1 March as a gesture of goodwill by Pakistan.

There were clear messages on social media pointing to India’s action on Kashmir following the 2018 tweet of Subramanian Swamy, which was re-tweeted by Indo-Israel Friendship Association.

As days passed, it became clear that India’s fears were misplaced. Pakistan did not read the signs of what was to come on 5 August and that the annexation of J&K was going to become a reality. Pakistan also did not have a contingency plan which could be unrolled hours after the ordinance was signed by the President of India revoking the special status of the disputed state of J&K guaranteed under Articles 35-A and 370 of the Indian Constitution for 69 years. Pakistan was also unprepared to call India’s bluff with a hard call of going to any extent on Kashmir and demanding a roll back of India’s action. Prime Minister Imran Khan and his Foreign Minister were late in the joint session of the Pakistan parliament to condemn the Indian move, which was a tell tale sign that they were busy in emergency meetings convened to discuss how to react to the new development.

The Prime Minister was overheard in parliament asking the opposition leader: “what do you want me to do?” “Should I declare war against India”? This said everything about what Pakistan was going to do about the illegal annexation of Kashmir by India – anything but war.

The Prime Minister was also overheard in the parliamentary session asking the opposition leader: “what do you want me to do?” “Should I declare war against India”? This said everything about what Pakistan was going to do about the illegal annexation of Kashmir by India – anything but war. The meeting of the National Security Committee confirmed on 7 August that Pakistan will use diplomatic means, multilateral diplomacy, trade boycott and high pitched protests to react to the situation but it will do nothing practical to claim the entire state of J&K as Pakistan’s territory in its constitution, or use the nuclear card credibly to force India through the international community to reverse this step and find a bilateral means of resolving the dispute without changing he status quo of the state of J&K.

While Imran Khan weighed the economic cost of war for Pakistan, he ignored the fact that it was the only credible threat he could get away with internationally because Kashmir remains a flash point between India and Pakistan.

Exercising the CMC moment would have meant Prime Minister Imran Khan addressing the Parliament on 6 August and calling on India to immediately retract its steps in Kashmir or be ready for Pakistan to go to any extent, including the prospect of a nuclear war to restore status quo ante. This could have been followed by PAF resuming flight patrolling, movement of a couple of infantry divisions from the western to the eastern border, and Pakistan test-firing a long-range and a short-range missile capable of delivering nuclear payload. Such demonstrable steps would have resulted in all the major powers sending special envoys to Islamabad calling for restraint and forcing New Delhi to reverse its steps in Kashmir. The prospect of a mushroom cloud hovering over their tall business empires and commercial and tourism sites would have sent all the Gulf states in panic, preventing them from conferring any national awards to the Indian Prime Minister and suggesting that they back him on Kashmir.

Under these tense conditions, the UNSC would have acted loudly with a resolution on Kashmir calling on both India and Pakistan to resolve the Kashmir dispute peacefully, failing which they could themselves authorise the UN to intervene in Kashmir under Chapter VII of the UN Charter. In the negotiations brokered by an ever ambitious President Trump, India would have agreed to withdraw its troops presence from the state of J&K on the condition that Pakistan also do likewise from Azad Kashmir. A demilitarised conflict territory would then be amenable for a referendum to decide the future of the Kashmiri people by Kashmiris themselves. But that was not to be.

While Imran Khan weighed the economic cost of war for Pakistan, he ignored the fact that it was the only credible threat he could get away with internationally because Kashmir remains a flash point between India and Pakistan and the world is not ready for a nuclear war between the two enemy countries.

After three weeks of noisy media statements; hundreds of social media posts; a routine meeting of UNSC members on the situation in Kashmir, which released no statement and no call for another meeting; three international human rights organisations objecting to the gross human rights violations in Indian Held Kashmir but stopping short of questioning India’s occupation of the territory in violation of the UNSC resolutions; deep divisions within the OIC block in responding to Kashmir’s annexation; silence of the Commonwealth and G7 on the new development; and Pakistan’s own admission that Pakistan does not desire a war with India but will deliver full response in responding to an aggression, India is emerging more confident and assertive on Kashmir and might start the next phase of changing the social fabric of Kashmir by rounding off the Kashmiri opposition using electronic surveillance, relocating RSS cadres and continued armed repression in Kashmir.

What stopped the government from taking its own constitutional route to claiming the whole of J&K as Pakistan territory in defiance of the dubious instrument of accession of October 1947?

Some searching questions remain, including the title of this essay, which asks: Did Imran Khan miss his CMC moment and lose Kashmir? Are wars won with weapons and men or with strategy and good timing? Did his army chief tell the Prime Minister that Pakistan was not ready for a war on Indian held Kashmir? Was there an intelligence failure to foresee the action of 5 August 2019 and prepare contingency planning? There were clear messages on social media pointing to this action following the tweet of Subramanian Swamy, which was re-tweeted by Indo-Israel Friendship Association on 22 June 2018. What stopped the government from taking its own constitutional route to claiming the whole of J&K as Pakistan territory in defiance of the dubious instrument of accession of October 1947?

Or is it that Pakistan’s CMC moment will come only if the integrity of Azad Kashmir is threatened. Or it may never come because this is another time and another world-order in which economic interests overtake foreign and security policy, including principles, rule of international law and old historical records and unfulfilled international commitments.

London 27 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser for Asia in the Political Affairs Division of the Commonwealth Secretariat, London, UK (2000-2006).

Post August 2019 Status of Jammu & Kashmir and Options for Pakistan

By Syed Sharfuddin*

Following the 5 August 2019 action by India withdrawing the special status of the Indian Held Kashmir granted under Article 370 of the Indian Constitution and declaring it as two Union Territories on 6 August 2019, there was a strong reaction in Kashmir, as well as in Pakistan but also a national consensus that despite the serious implications of India’s illegal action on the future of the disputed territory, Pakistan would not go to war with India on this action as a first option. The retaliatory but non-belligerent measures agreed by Pakistan’s National Security Committee under the Chairmanship of the Prime Minister on 7 August 2019 following an angry joint session of the Pakistan Parliament were as follows:

1. Downgrading diplomatic relations with India;
2. Suspending bilateral trade with India;
3. Reviewing bilateral arrangements with India
4. Matter to be taken to the UN, including the Security Council;
5. Pakistan Independence Day on 14 August to be observed in solidarity with the brave Kashmiris and their struggle for the right of self-determination;
6. 15 August which is India’s Independence Day to be observed as a Black Day in Pakistan.

In addition to these measures, the Prime Minister of Pakistan also directed that:

1. All diplomatic channels be activated to expose the brutal Indian racist regime’s design and human rights violations;
2. Pakistan Armed Forces to continue vigilance;
3. The Special Parliamentary Committee on Kashmir to remain seized with the issue.

The measures did not include Pakistan closing its airspace for all international civilian and cargo traffic bound to/from India. The airspace was opened on 15 July after it remained closed since 26 February following India’s failed airstrike in Balakot. The Kartarpur Corridor for Sikh pilgrims was also not affected by these measures.

The problem with these measures is that these have a short shelf life and will soon be forgotten. In a couple of months the world will get tired of news about Kashmir and move on to discuss other problems. This changed status-quo of the IHK would become the new norm in India-Pakistan relations. Having lost the IHK to India forever, Pakistan will start hearing bolder and more aggressive Indian claims on Azad Kashmir and Gilgit-Baltistan.

On social media, a number of other suggestions were circulating. These suggested that following India’s action, the Line of Control had ceased to exist and the border between India and Pakistan had reverted back to the old ceasefire line. It was suggested that Pakistan should unilaterally abrogate the 1972 Simla Accord and deny India the opportunity to take the position that India-Pakistan disputes cannot be taken to the UN and should be discussed bilaterally between the two countries.

A more daring suggestion was that Azad Kashmir government should unilaterally declare independence in consultation with Pakistan on behalf of the entire State of Jammu and Kashmir as it existed at the time of the Partition in 1947. Following this move, Azad Kashmir should apply for membership of the UN and the OIC, supported by Pakistan and other countries such as Turkey, Malaysia and Saudi Arabia. The social media posts went on to say that the Muslim leadership of IHK, including Hurriyat Conference leadership was deeply concerned about its future and would readily support cessation from India. At the international level, the nature of an inter-state dispute involving two countries would change from a bilateral matter to that of self-rule for the Kashmiris, forcing the UN Security Council to intervene. A new independent State of Azad J&K can sign a defence pact with Pakistan to defend it against any Indian aggression.

These suggestions hardly make any difference to the shifting status quo in Kashmir. The problem with abrogating the Simla Accord is that at least it provides a fig leaf for considering the disputed Kashmir issue bilaterally, especially in the absence of any new international mediation or peace initiative on Kashmir. The BJP Government in India will be only too happy to bin a Congress-negotiated agreement and abandon this platform for holding a dialogue with Pakistan on Kashmir. Secondly, Azad Kashmir declaring full independence will mean giving encouragement to separatists elsewhere in Pakistan. The suggestion is also unworkable globally. The Turkish Republic of Northern Cyprus, Western Sahara and Kosovo have been standing in the queue for international recognition for a long time and not succeeded. More recently, Barcelona declared independence after a referendum but its declaration was shot down by the EU. It won’t happen at all in the case of Azad Kashmir.

But thinking loud and out of the box is good because conventional approaches have not forced India to sit with Pakistan to resolve the Kashmir dispute. These have got Pakistan nowhere in the past 7 decades and are unlikely to improve the situation in the future except bring grief and more coffins.

A rather unconventional but democratic and non-Jihadi option, which might strengthen Pakistan’s claim on Kashmir in the long run is to bring Kashmiri leadership and people from all parts of Kashmir to met in a Grand Congress in the UK. In exercise of their political will in lieu of the long denied plebiscite, they should pass a people’s resolution overturning the Maharajah’s arbitrary and unfair accession to India with their democratic and popular accession to Pakistan. Following this, the Azad Kashmir Assembly should meet and pass a similar resolution and give Pakistan a clear mandate to claim the entire State of Jammu and Kashmir through a constitutional amendment in the 1973 Constitution, defining its status as the 6th province of Pakistan in Article 257 and showing its territorial boundaries as existed at the time of partition in 1947 in Article 1.

It may be recalled that in its ruling of 17 January 2019 on the granting of fundamental rights to the people of Gilgit-Baltistan, including the right to self governance, the Supreme Court of Pakistan did not allow the federal government to grant a provisional provincial status to Gilgit-Baltistan, pending a final settlement of the Kashmir dispute. It only allowed the government to  promulgate an Ordinance which was duly vetted by the Court. The Court was concerned that nothing in its judgement should affect the disputed nature and status of Kashmir.

India’s unilateral annexation of IHK may be used by Pakistan to invoke the well known international principle of rebus sic stantibus related to fundamental change of circumstances and claim the disputed state of Kashmir as Pakistan’s territory. This principle allows states to withdraw concessions or commitments made prior to the fundamental change of circumstances. Recently, President Trump has withdrawn from a nuclear agreement with Iran to which US was a state party along with Iran and the EU.

Using this principle, the federal government can also approach the Supreme Court of Pakistan to review its January 2019 ruling in regard to Gilgit-Baltistan becoming the 5th province of Pakistan on the basis that by its action of 5 August 2019, India has disregarded all norms of international law and UN resolutions concerning settlement of bilateral disputes, thereby freeing Pakistan of its obligations to regard Gilgit-Baltistan as a disputed territory.

There is a possibility, even though unlikely, that India’s Supreme Court might strike down the action of BJP government on the annexation of Jammu and Kashmir and find the process ultra vires, including the Jammu & Kashmir Reorganisation Act, which goes against the spirit of Article 370, if it is restored by the Court in India. However, it should not prevent Pakistan from going as far as India has already gone in its constitution in claiming the state of Jammu and Kashmir to give parity to its claim.  India’s claim was incorporated in the Indian constitution as early as 1949 following the alleged instrument of accession by the Maharajah of Kashmir which was challenged by the tribal people of Jammu and Kashmir, including Northern Areas, as well as Pakistan.

This is a democratic and constitutional solution, away from violence and agitation of the last 7 decades, but it will require patience and hard work to reach fruition. This is also the path, which the country’s founding father, Quaid-e-Azam Mohammad Ali Jinnah would have taken, if he were alive today.

For details of this recommendation, also see India’s Illegal Annexation of Kashmir Opens New Opportunities for Pakistan

London 9 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser for Asia in the Political Affairs Division of Commonwealth Secretariat London (2000-2006).

India’s Illegal Annexation of Kashmir Opens New Opportunities for Pakistan

By Syed Sharfuddin*

Executive Summary

Contrary to the general feeling in Pakistan that India’s unexpected action of 5 August 2019 has sealed the fate of the Indian Held Jammu and Kashmir (IHK), the move has opened new opportunities for Pakistan and Azad Kashmir, which were not possible to avail prior to 5 August. Rather than copying India’s action in Azad Kashmir or pursuing a military solution, Pakistan should follow a constitutional and democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of democratic steps without going to war with India.

It is time for the Kashmiri People living inside and outside Kashmir to adopt their own ‘23rd March Resolution’ to accede to Pakistan. It is time that Article  257 of the 1973 Constitution is amended by two-third majority of a Constituent Assembly in Pakistan to claim the whole of Kashmir as part of Pakistan. It is time that the Supreme Court of Pakistan allows the Federation of Pakistan to officially name Gilgit-Baltistan as the fifth province of Pakistan using the principle of fundamental change of circumstances. It is time that all this is accomplished swiftly to strengthen the constitutional and legal case of Pakistan on Kashmir before the dust settles and the current most significant development in IHK becomes the new normal in India-Pakistan relations.

Text

While exposing the hypocrisy of the world’s so called largest democracy in illegally applying the annulment clause in Article 370 of the Indian Constitution to withdraw the special status of Indian Held Jammu & Kashmir, and rushing through a J&K Reorganisation Bill in Rajya Sabha and Lok Sabha on 5 & 6 August respectively to bifurcate J&K into two Union Territories, this action has also highlighted several challenges and opportunities which may have serious implications for peace and security in the Sub-Continent.

Instead of annexation, Kashmir’s accession to Pakistan should follow a democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of steps without going to war with India.

As Pakistan’s Prime Minister Imran Khan said in Muzaffarabad on 14 August 2019, in the event of a breakdown of peace in the Subcontinent, the responsibility for not acting in time to restrain India will rest solely on the shoulders of the peace keeping organs of the United Nations  whose mandate includes upholding  the rule of international law, protection of human rights of minorities by ethnic cleaning and genocide and maintaining inter-state peace.

Challenges:
India’s illegal action will embolden the hawks in the BJP and act as a cue for Hindu extremists to harass Kashmiri Muslims. They will increase the Indian state sponsored repression on the Kashmiri Muslims with a view to making them flee their homes in the same way as Israel has done to the Palestinians in order to illegally acquire their lands through forced purchases, as well as armed intimidation. The process of ‘Hinduaisation’ of Kashmir will begin with a heavy Hindutwa agenda applied in education, jobs and businesses to the disadvantage of local Muslims.

The Indian State may invite non-Muslim families presently residing in Jammu and Ladakh to move to the Kashmir Valley to change the demography of the present Muslim-majority region. It may also provide financial incentives to those Kashmiri Hindus who left Kashmir in the past decades to return to the Valley and settle there in order to change the numbers of Kashmiri population.

The action of BJP Government on 5 August 2019 in regard to the State of Jammu and Kashmir has changed the seventy-year old status quo on the disputed territory on which India and Pakistan have gone to full-scale war twice and exchanged artillery fire on the Line of Actual Control without a single week passing peacefully.

The Indian State many also allow Dalai Lama and his followers to settle in Ladakh to create a buffer between India and China. Although China will not like this resettlement but it won’t be able to do anything about it because after 6 August 2019, Ladakh has effectively become a Union Territory without any legislature. If China does not challenge India’s action in Ladakh, it will mean whatever India does in Ladakh in the future will be its internal matter.

Having swallowed up the Sate of J&K in the Indian Union by repeating the pattern of earlier mergers such as Hyderabad, Junagadh and Manawadar, the Indian State will move next to claim Pakistan’s side of Kashmir, including Gilgit and Baltistan. This will effectively place Pakistan in a defensive position and make it hard to save its own part of Kashmir.

Contrary to the general feeling in Pakistan that India’s action of 5 August 2019 has sealed the fate of Jammu and Kashmir, the abrogation of IHK’s special status by India opens many opportunities for Pakistan and Kashmiris, which were not possible prior to 5 August.

Opportunities
Ironically, India’s action has given a timely opportunity to Pakistan, as well as to the people of Kashmir to revisit their strategy on Kashmir. This was not possible to be done prior to 5 August 2019.

Until now India had used Article 370 of its Constitution to fool those Kashmiris who had co-opted with the Indian State to exercise their autonomous status and have their own Legislative Assembly to enact laws for the people of Indian held Jammu and Kashmir. The withdrawal of the special status of IHK by India on 5 August 2019 has ended the delegated powers which the institutions of the State of J&K enjoyed on behalf of the people. In the absence of an autonomous State and dissolution of their own Assembly under Article 370, these delegated powers have returned back to the people of Indian held Kashmir.

The people of IHK are now free to convene a Grand Congress of Kashmiris living on both sides of the border in any neutral place, such as London, Oslo, New York or Toronto to pass a resolution expressing their political will to reject Indian rule and accede to Pakistan. Such as resolution will be no less historic than the 23rd March resolution of 1940 adopted in Lahore in favour of Pakistan.

Unlike the Indian Constitution, which claims the State of J&K as part of India with its territory immediately before the commencement of the Constitution on 26 January 1950, the 1973 Constitution of Pakistan makes no such claim about J&K, nor sets the boundaries of its territory. The only reference to J&K in the Pakistan Constitution appears in Article 257 which states that: “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State.” Of course, this is not a legislative oversight but a deliberate omission by the drafters of the 1973 Constitution to keep the high moral ground on Kashmir for a plebiscite in accordance with UN Security Council’s resolutions and India’s erstwhile promise to the international community to implement these resolutions. But as India’s illegal behaviour subsequently proved, in the ruthless exercise of power morality is never the winner.

The 5th August action by India has ironically opened up a golden opportunity for Pakistan to make a formal claim on J&K in the Pakistan Constitution. Through a Constitutional amendment of two-third majority of both Houses of Parliament, Pakistan can now claim the entire state of J&K, including the territory held by India as the territory of Pakistan just as India has done in its Constitution. Pakistan’s Constitution should also define the territorial limits of the entire State of J&K as has ben done in the First Schedule of the Indian Constitution.

This amendment could not have been possible prior to 5 August 2019 as India would have taken a serious view of it and even regarded it as an unfriendly act worth undoing by force. However, following its own illegal action in IHK, Pakistan is legally entitled to make these amendments in its Constitution and state that while it claims the entire state of J&K as part of Pakistan, the part occupied by India is challenged by Pakistan and will be acquired at an appropriate time which suits its national interest.

Annexation of Azad Kashmir to Pakistan following India’s illegal action in a tit for tat reaction will not only play into the hands of the BJP government’s strategy which may want Pakistan to do just that but it will also seal the fate of Kashmir to a permanent status quo along the line of actual control. It is also possible that President Trump’s offer to Pakistan’s Prime Minister last month for the US to mediate in resolving the Kashmir dispute may have this scenario in mind. Furthermore, annexation is not the answer because two wrongs cannot make a right. Instead of annexation, Kashmir’s accession to Pakistan should follow a democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of democratic steps without going to war with India. These steps are as follows:

Democratic Step 1:
All expatriate Kashmiris living outside India and Pakistan should convene a Grand Congress in a Western country and adopt a people’s resolution asking the Azad Kashmir Government (the only neutral Kashmiri administrative unit left after the annulment of the special status of IHK) to consider their accession to Pakistan as its 6th Province (the 5th Province already decided by the Parliament of Pakistan is Gilgit & Baltistan). Kashmiri leaders inside IHK who are able to travel or send video messages should support the convening of this Grand Congress and even address it electronically from their homes where they are under house arrest, if possible.

The UK will be an ideal location for holding this Grand Congress as a large number of expatriate Kashmiris live in this country and also because the UK was the colonial empire of the Sub-Continent India and Pakistan, which masterminded the messy partition of 1947, including the disastrous decision that Princely States of the Raj will decide their own accession to either India or Pakistan without realising that India could apply double standards to Hyderabad on the one hand and Kashmir on the other. No other country is more aware of the historic injustice done to the people of Jammu and Kashmir than Britain.

There is only a small window of time available to convene the Grand Congress. If it is delayed, the opportunity will be lost and the momentum to drive all sections of the Kashmiris to agree to accession will lose steam. Pakistan should provide moral and logistical support to the Kashmiri expatriates to meet and adopt a resolution addressed to the Azad Kashmir government and its legislature.

It is time for the people of Kashmir to adopt their own 23 March 1940 Resolution to accede to Pakistan

Democratic Step 2:
Following the passage of a resolution by the people of Kashmir meeting to decide their future in a neutral and independent country, the AJK Government should take note of the free expression of the political will of the people of Jammu & Kashmir and adopt a resolution of accession to Pakistan as the 6th Province of the Federation of Pakistan and request President Masood Khan of Azad Kashmir to consent it to and forward their request to the Government of Pakistan.

It is time that Article  257 of the 1973 Constitution is amended by two-third majority of a Constituent Assembly in Pakistan to claim the whole of Kashmir as part of Pakistan.

Democratic Step 3:
Upon receipt of this request from the President of Azad Kashmir, a joint session of Pakistani Parliament should be convened to consider the accession request and declare the whole of J&K, including IHK as the territory and jurisdiction of Pakistan.

It is time that the Supreme Court of Pakistan allows the Federation of Pakistan to officially name Gilgit-Baltistan as the fifth province of Pakistan using the principle of fundamental change of circumstances.

Democratic Step 4:
The Joint Session of the Pakistan Parliament should convert into a Constituent Assembly meeting in a Special Session to amend the Constitution of Pakistan to give effect to the changes required in declaring the whole of J&K, comprising Azad Kashmir and IHK as an integral part of Pakistan. There should neither be an annexation of Azad Kashmir nor any departure from the above steps to ensure that the entire process is democratically followed to its logical conclusion.

It is time that all this is accomplished swiftly to strengthen the constitutional and legal case of Pakistan on Kashmir before the dust settles and the current most significant development in IHK becomes the new normal in India-Pakistan relations.

Democratic Step 5:
In the final step, all countries, including the UN Security Council’s five permanent members should be briefed by Pakistan on the democratic steps taken by Pakistan to ensure that Pakistan’s reaction to India’s illegal annexation of IHK in violation of international law and UN Security resolutions is proportional, peaceful, and in accordance with the wishes of the people of Kashmir and the people of Pakistan as reflected by the decisions taken by their representative bodies.

This should be done before the dust settles and the current most significant development becomes the new normal in India-Pakistan relations.

Also see related article Post August 2019 Status of Jammu & Kashmir and Options for Pakistan

London 7 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser on Asia in the Political Affairs Division of the Commonwealth Secretariat, London from 2000 to 2006.

To Honour the Political Will of the People of AJK & IHK, Pakistan should enact Legislation to make Kashmir the 6th Province of Pakistan and then talk Peace with India.

By Syed Sharfuddin*

Executive Summary
In the aftermath of India’s revocation of Article 370 of the Indian Constitution on the disputed territory of Indian Held Kashmir, it is no longer feasible for Pakistan to maintain the status quo on Kashmir along the UNMOGIP observed Line of Control. As an immediate first step, Pakistan should honour the wishes of the Kashmiri people from Azad Kashmir, as well as from Indian Held Kashmir, to join Pakistan by convening an extraordinary session of the two Houses of Parliament to discuss Kashmir and amend the 1973 Constitution to make Kashmir the 6th Province of Pakistan comprising the present Azad Kashmir and the entire Indian Held Kashmir minus Ladakh. Of course, the process will start from a Congress of the Kashmiri people from both parts of Kashmir meeting in a neutral capital, such as London or Norway, or a city in the USA, and passing a resolution, similar to the historic 23rd March resolution of 1940 in Lahore, to reject India’s occupation and join Pakistan. Acting on this resolution, the Azad Kashmir Assembly should meet and pass a resolution on behalf of the people of Azad Kashmir and the people of Indian Held Kashmir requesting Pakistan to accede to their demand. This will trigger Pakistan’s own response by convening a joint session of the federal Parliament and amending the 1973 Constitution to make Kashmir the 6th province of Pakistan whose territory shall comprise the present Azad Kashmir and the territory of Indian Held Kashmir minus Ladakh. A further provision will be added in the Constitution to reflect this in the international boundary of Pakistan and suggest that the new boundary will take effect from the day Indian occupation terminates in the occupied territory. Having taken this action, Pakistan should negotiate with India a pacific settlement of the Kashmir dispute with or without international mediation from a big power guaranteeing the full implementation of the peace accord. By taking away the special status of Kashmir under duress, India has returned the delegated people’s power from the abrogated Assembly back to the Kashmiri people to decide their future without a plebiscite outside of India.

On 5 August 2019, India surprised its citizens and the outside world by revoking the autonomous status of the Indian Held Jammu & Kashmir (IHK) provided under Article 370 of the Indian Constitution, and by enacting a new Jammu and Kashmir (J&K) Reorganisation Bill to make the disputed State two separate territories. Under the new arrangement, J&K will become a part of the Indian Union and have a Legislative Assembly, and Ladakh will become a part of the Indian Union without a Legislature. Prior to presenting the Bill in Rajya Sabha on 5 August 2019, which was carried by a majority vote of 125, with 61 against and 1 abstention, India’s Home Minister Amit Shah said that the decision on Ladakh was taken in view of the “long pending demand of the people of Ladakh to give them the status of a Union Territory to enable them to realise their aspirations”. For J&K he used a different yardstick, promising that peace will return to J&K in a short period (five years), without answering the criticism from the opposition Indian National Congress that the ruling BJP did not hold any consultation with the political parties, as well as the Kashmiri leadership, most of whom are locked up in jails or are under house arrest.

But the Indian action on Kashmir is no surprise to India watchers. Having failed in their attempt to silence the surge in the indigenous struggle for independence by a heavy armed presence, and causing almost every household in the Valley to bury their young dead lads chanting Pakistan Zindabad and Kashmir Baneyga Pakistan, it was not unforeseen that the new BJP government would carryout its long-standing pledge to formalise Kashmir’s merger in the Union by repealing its constitutionally protected special status and opening the disputed territory to Indians from the rest of the Union to buy property and businesses and change the demographics of IHK and ‘Indianise’ the disputed Muslim-majority Pro-Pakistan State according to the BJP text book of Hindutva.

It is also not surprising that the majority of Kashmiris feel cheated for the second time in their national struggle to free themselves form Indian occupation in three successive generations.

It is also not surprising that the majority of Kashmiris feel cheated for the second time in their national struggle to free themselves form Indian occupation in three successive generations since the messy partition of India overseen by the British in 1947. Through its latest action, the Modi government has removed the fig leaf of J&K as a disputed territory and made the people of J&K victims of tyranny of majority by using the heavy hand of the Indian Union’s democratic institutions comprising the Executive and Parliament. There is little doubt that the 5 August action taken by India in regard to IHK will be reversible even if a constitutional petition is filed at the Indian Supreme Court against today’s vote. As stated in Rajya Sabha today, the government would take the position that it will hold fresh elections in J&K and ask the new Legislative Assembly to sign a fresh instrument of accession by J&K to join the Indian Union.

With a curfew fully in place in the IHK, its past and current Muslim leadership under arrest, its democratically elected Legislative Assembly suspended and the people of Kashmir having no human rights and no say in the new reorganisation their State, the Indian Union’s theatre of the absurd in the Parliament lacks political legitimacy and is short of civilised democratic norms. However, it is a historic motion because it formally divides the Muslim-majority J&K from the Buddhist-majority Ladakh.

India could, in the future, find it easy to negotiate with the Kashmiri leadership a political settlement, which could be acceptable to them, as well as to Pakistan while keeping Ladakh out of the equation.

This development also gives Pakistan an urgent one-time opportunity to rethink its response and strengthen its position toward negotiating a final deal on J&K with India in the future.

What gives Pakistan and Kashmir a permanent advantage over India is the undeniable fact, proven by the last seventy years that until Kashmiris and Pakistan agree on a peace deal, there can be no peace in the Sub-continent, which India badly needs to keep its economic development at par with the other emerging economies in the G15.

Having binned its own political arrangement put in place to do away with the plebiscite, which supposedly placed the voice of the people of IHK in the hands of an elected Legislative Assembly deriving its so called ‘legitimacy’ from Article 370, the political power delegated by the people of Kashmir to their representatives has returned to them. They are now free to express their political will outside the Indian political process and demand independence from India and express their desire to join Pakistan from any platform. A Congress of Indian Kashmiri expatriates held in any European capital such as London or Norway, or even in the US can provide a substitute for their lost Assembly. They can invite IHK’s Kashmiri leaders online or through messages sent by them to pass a resolution condemning the failure of the previous governments in India to fulfil Jawaharlal Nehru’s commitment for holding a UN-supervised plebiscite in Kashmir; and they can reject the action of the present Indian government for annulling Kashmir’s special status and its reorganisation through a parliamentary act on 5 August 2019. Through a simple majority resolution such as the historic 23 March resolution of Pakistan, the Indian Kashmiris can declare that as a substitute for the plebiscite, they have now decided that the J&K territory in the IHK is now a part of Pakistan.

The Azad Kashmir Assembly can request the State of Pakistan to grant the people of Azad Kashmir, as well as the Kashmiri people of IHK the status of a separate and full Province in Pakistan with all the rights, as enjoyed by the constituent parts of the Federation of Pakistan.

Responding to this resolution from the Congress of the people of IHK, the Legislative Assembly of Azad Kashmir on the Pakistani side of the Line of Control can convene an emergency session and pass a resolution expressing their solidarity with the people of IHK and take a positive view of the resolution passed in their Congress. The Azad Kashmir Assembly can further request the State of Pakistan to grant the people of Azad Kashmir, as well as the Kashmiri people of IHK the status of a separate and full Province in Pakistan with all the rights, as enjoyed by the constituent parts of the Federation of Pakistan.

Article 257 of the Constitution of Pakistan states that “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State”. In pursuance of this provision, the Senate and National Assembly of Pakistan should meet in an extraordinary joint session to consider the request of the Azad Kashmir Assembly to make Azad Kashmir as well as IH Kashmir a new province in the Federation.

In pursuant of Article 257 of the Pakistan Constitution and to respond to the resolution of the Azad Kashmir Assembly expressing the combined wish of the people of Kashmir on both sides of the LOC to accede to Pakistan, the Senate and National Assembly of Pakistan should meet in an extraordinary joint session and declare that the whole of Kashmir on both sides of the LOC, as far as its territorial limits extend, is a new province in the Federation of Pakistan. Article 1 of the Constitution should also be accordingly amended by two-third majority and a provision should be added that Pakistan’s borders shall comprise, in addition to its present international boundaries, the area of the disputed Indian Held J&K as shown on the present world map, whenever it becomes free from Indian occupation.

Pakistan Constitution should be accordingly amended by two-third majority and a provision should be added that Pakistan’s borders shall comprise, in addition to its present international boundaries, the area of the disputed Indian Held J&K as shown on the present world map, whenever it becomes free from Indian occupation.

On the face of it, to some people it may appear that the suggestion to recognise Azad Kashmir as the 6th province of Pakistan is walking right into the BJP strategy where India would probably want Pakistan to do the same with Azad Kashmir and settle the long standing Kashmir dispute on the basis of the status quo on the Line of Actual Control. It is possible that when President Trump offered US mediation on Kashmir to Prime Minister Imran Khan last month, he was referring to settlement of the Kashmir dispute along the LOC. However, in the step-wise action plan outlined in this paper, which I call the Sharfuddin Formula, Pakistan will be officially claiming the entire Kashmir, both Azad Kashmir as well as the IHK as the territory of Pakistan without having to go to war with India. A constitutional claim by Pakistan would not have been possible in the absence of current Indian provocation and would have elicited serious retaliation by India. But ironically, the BJP government has presented Pakistan this opportunity on a platter. Having claimed the entire territory of Kashmir as the 6th Province of the Federation in the country’s Constitution through a constitutional amendment, Pakistan can go about doing its business as before but when in the future Pakistan’s economy and defence is strong, it can always get back to India with the dictating position that India’s occupation is not acceptable in Pakistani territory.

Pakistan’s response to India’s action along the above lines, also carries several tactical advantages:

1) It will give Pakistan a new boundary which will be extended beyond the LOC to include the entire territory of IH J&K leaving Ladakh to India. Even though Jammu may have Hindu majority, keeping it together with Kashmir Valley is important for negotiations because the two regions are intrinsically linked with each other.

2) By breaking the IHK into two administrative territories India has already acquiesced in the existence of a Muslim-majority Kashmir and a Buddhist-majority Ladakh. It will be easy for Pakistan to press its case for getting Kashmir back from India instead of playing the role of an interested party that supports the Kashmiri cause politically and morally.

3) The popular resistance in IH Kashmir will find a new ray hope under the present most depressing circumstances where some people are seeing this act by the Modi government as the last nail in the coffin of resistance. By declaring the entire IH J&K as part of Pakistan constitutionally and politically, the indigenous resistance will grow stronger and ruin the chances of India hoping to gulp it down as it did other princely states in the past, notably Hyderabad. It will also give encouragement to those pessimists in Pakistan who are saying it is too late to do anything because they think that India’s ‘master stroke’ is so good, it cannot elicit a befitting counter-response.

4) The people of Kashmir will have their representatives sit in Pakistan’s Executive and Parliament and take part in the political process as Pakistani citizens with equal rights and responsibilities. Pakistan’s foreign and security policy will include their voice and provide a fresh blood in the direction of the country in settling this long-standing dispute with India on its terms.

5) Outside powers, including Pakistan’s friends do not fully understand the administrative arrangements of Azad Kashmir. The voice of Azad Kashmir gets muted abroad when Pakistani diplomats representing Pakistan speak for Azad Kashmir. Azad Kashmir’s President and Ministers are not given meeting appointments because of the complex rules of international recognition of countries. The new province will make greater impact on third countries interested in international mediation or supporting bilateral negotiations for peace in the Subcontinent.

6) It will unite different political parties and interest groups on one cause and bring a huge improvement in the current governance structures by adding focus and purpose in the national and provincial agendas.

It is worth reviewing the contingency plan and response in the light of the fresh opportunity this action has provided Pakistan and given it an opening, which was closed to it in the last 70 years for reasons which have now been overtaken by events.

The time to act on a solid long term counter strategy is now. I am sure Pakistani policy makers must have thought of this Indian development long before it was materialised by the BJP government on 5 August 2019. I am also sure that a proper response and contingency plan exists as to how the government should move next in rolling out its counter strategy. But it is also worth reviewing the contingency plan and response in the light of the fresh opportunity this action has provided Pakistan and given it an opening, which was closed to it in the last 70 years for reasons which have now been overtaken by events.

London 5 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser for Asia in the Political Affairs Division of Commonwealth Secretariat London (2000-2006).

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