All posts by Syed Sharfuddin

Mr Syed Sharfuddin is a student of political science and international relations resident in London UK. He has written extensively on democracy and good governance and served in many senior positions as a diplomat, as an international civil servant, as a humanitarian and as an NGO worker. During his career he has held a number of posts. he was previously CEO of Muslim Aid UK www.muslimaid.org; Special Adviser, Political Affairs Division, Commonwealth Secretariat, London, UK www.thecommonwealth.org and a Civil Servant and Diplomat, Pakistan Foreign Service, Government of Pakistan, www.mofa.gov.pk

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).

A Critique of the ICJ Ruling of 17 July 2019 on the Case of Commander Kulbhushan Sudhir Jadhav, Indian Navy, cover name, Hussein Mubarak Patel, Businessman

By Syed Sharfuddin

In May 2017, India filed an application against Pakistan at the International Court of Justice (ICJ) in the Hague, maintaining that Pakistan had breached its obligations under the Vienna Convention on Consular Relations of 1963 (the Convention) to provide a fair trial to its national, Kulbhushan Sudhir Jadhav, who was arrested in Pakistan in March 2016 on charges of espionage and was awarded death sentence by a Pakistani military court in April 2017. 1

The ICJ admitted India’s application under Article 1 of the Optional Protocol to the Convention concerning Compulsory Settlement of Disputes to which both India and Pakistan are signatories. In admitting the Indian application, the ICJ dismissed the objections of Pakistan to India’s application citing abuse of process, abuse of rights and unlawful conduct by India.

The ICJ jurisdiction was limited to “providing reparation only for the injury caused by the internationally wrongful act of Pakistan that fell within the Court’s jurisdiction, namely Pakistan’s breach of obligations under Article 36 of the Convention and not of the International Covenant on Civil and Political Rights”. 2

In admitting India’s application for a hearing, the ICJ disregarded a well established rule of customary international law that normally a complaint of a State against another State regarding its national is not considered until the accused has exhausted the legal remedies available under the law of that State. In this case, ICJ did not ask India to wait for the appellate remedy available to the Jadhav to be fully exhausted in Pakistan.

The 149 paragraph verdict, given by a panel of 16 distinguished judges, including the sole dissenting ad-hoc judge from Pakistan, Justice (Retd) Tasadduq Hussain Jillani, has been claimed by both State parties as vindication of their respective legal positions.

The ICJ accepted India’s assertion that Pakistan was in breach of Article 36 of the Convention and asked Pakistan for the continued stay of the sentence pending finalisation of the proceedings in the light of the ICJ ruling.

The ICJ did not accept India’s position that the reparation of the injury should annul the decision of the Pakistani military court and ask Pakistan to free Jadhav.

The ICJ accepted Pakistan’s submission that the appropriate remedy in this case was the effective review and reconsideration of the conviction and sentence of the accused .3

The ICJ did not accept Pakistan’s position that Article 36 did not apply to persons arrested on charges of espionage 4.

Legal experts agree that the ICJ could go only as far as it has gone; that the Court had no mandate to annul the decision of the military court, within the scope of its jurisdiction, having acknowledged that Pakistan and its criminal justice system were fully compliant with due process. 5

Ruling
The full summary of the ICJ ruling announced on 17 July 2019 is contained in paragraph 149 of the decision. 6

The ICJ found that “Pakistan acted in breach of its obligations under Article 36 of the Convention: firstly, by not informing Mr. Kulbhushan Jadhav of his rights; secondly, by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and thirdly, by denying access to Mr. Jadhav by the consular officers of India, contrary to their right, inter alia, to arrange for his legal representation”.

The ICJ acknowledged that Pakistan notified India on 25 March 2016 of the arrest and detention of Mr. Jadhav, as required by Article 36, paragraph 1B, of the Convention. 7

However, the fact that the notification was made some three weeks after the arrest, constituted a breach of the obligation to inform “without delay”, as required by Article 36, paragraph 1B of the Convention. 8

The ICJ held that Pakistan’s breach of paragraphs1A &1C of Article 36 of the Convention constituted “internationally wrongful acts of a continuing character”. 9. Pakistan was therefore “under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1B, and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraphs 1A and 1C.”

The ICJ ruled that “the appropriate remedy in this case for Pakistan” was to undertake an “effective review and reconsideration of the conviction and sentence of Mr. Jadhav” by giving this process “full weight” to the “effect of the violation of the rights set forth in Article 36 paragraph 1 of the Convention, and guarantee that the violation and the possible prejudice caused by the violation are fully examined”.

The ICJ took full cognizance of the fact that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”.

The ICJ left the choice of ways to Pakistan for performing its obligation to provide effective review and reconsideration of the case but it noted that “freedom in the choice of means is not without qualification”, which is that the “obligation to provide effective review and reconsideration is an obligation of result, which must be performed unconditionally”. Therefore, “the violation of the rights set forth in Article 36, paragraph 1, of the Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed; that Pakistan take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation; and [observe] a continued stay of execution which is an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav” 10.

Observation 1
In May 2017 the ICJ admitted the application of India under Compulsory Settlement of Disputes without allowing the appellate process in Pakistan to be completed.

Yet two years later, in its ruling on 17 July 2019 the ICJ took cognizance of the fact that the “Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available” to persons under consideration 11.

Observation 2
In its July 2019 ruling, the ICJ said that Pakistan consistently maintained that Article 36 did not apply to Jadhav who was not just an Indian national but also a spy. The ICJ therefore inferred from this position that under Article 36:1A, Pakistan breached its obligation to inform Mr. Jadhav of his rights under that provision”. 12

On the other hand, under Article 36:1B, the ICJ did not infer that since the concerned Indian national was doing espionage on behalf of his government, his arrest and detention in Pakistan (which was not his normal place of residence on duty) should have come to the knowledge of India on the same day on 25 March 2016 when his phone went unanswered and messages stopped coming, thereby invalidating the obligation of the receiving State to inform the sending State of the arrest of its national without delay.

Observation 3
The ICJ further stated that it will interpret the 1963 Convention according to customary rules of treaty interpretation, as reflected in Articles 31 & 32 of the 1969 Vienna Convention on the Law of the Treaties in order to remove any ambiguity or obscurity in the 1963 Convention. India has not signed the 1969 Convention. Pakistan has signed the 1969 Convention but not ratified it.

It is interesting that while the Court declined to consider Pakistan’s plea for declining India’s request for admissibility of the case on the basis of customary law, the ICJ did not mind recourse to customary law in the interpretation of the 1963 Convention.

Observation 4
In considering the provisions of the bilateral agreement of 2008 between India and Pakistan, which covers “cases of arrest, detention or sentence made on political or security grounds” and commits each side to “examine the case on its merits” 13, the ICJ noted that it does not take away the right of the accused to have consular access under Article 36 of the Convention.

The ICJ accepted that under Article 73 paragraph 2 of the Convention, the 2008 Agreement is consistent with the Convention, as it confirms, supplements, extends or amplifies the provisions of the Convention and regulates matters not covered by the Convention. Yet, the ICJ did not direct the two State parties to resolve this matter in accordance with the bilateral Agreement of 2008 15.

It may be recalled that since 1972, India has consistently maintained that the Kashmir dispute should be resolved between India and Pakistan bilaterally in accordance with the provisions of the Simla Agreement between the two countries. The two State parties, the UN and the international community have supported the bilateral option, but never said that the Simla Agreement should be disregarded and the dispute should be resolved on the basis of the UN Resolutions on Kashmir calling on India to hold a plebiscite in the disputed territory.

Observation 5
The ICJ noted that if the signatory State parties to the 2008 Agreement “had intended to restrict in some way the rights guaranteed by Article 36, one would expect such an intention to be unequivocally reflected in the provisions of the Agreement.

The ICJ ruled that Article 36 of the Convention does not exclude from its scope persons suspected of espionage, despite the clear omission of espionage in the Convention, as opposed to a bilateral agreement between two sovereign countries which explicitly provides a framework for arrest, detention or sentence made on political or security grounds and calls for consideration of cases falling under this provision on merit.

Observation 6
In regard to the breach of Article 36 paragraphs A & C of the Convention, 14, the ICJ did not accept Pakistan’s submission that Pakistan had asked for vital information such as confirming the passport details and activities of the accused to verify his nationality and profession, which were not provided by India.

In rejecting the notion of any conditionality attached to right of the accused for consular access and the right of the State of the accused to arrange legal representation for him, as provided under Article 36:1A, the ICJ did not take into consideration the facts that the accused was an employee of an Indian spy agency and his alleged terrorist activities in Pakistan had made India complicit in the crime and created a direct conflict of interest, not foreseen in the Article at the time of the drafting of the Convention. The ruling also did not mention that Pakistan partially implemented Article 36 paragraph 1A by allowing the family of the accused to meet him in person.

As for the intent of the drafters of the Convention to include espionage in Article 36, it is correct that espionage was a well known state instrument when the Convention was negotiated, but it is also correct that state-sponsored terrorism and deploying spies as terrorists’ handlers in enemy states had not been invented.

Observation 7
In considering India’s complaint, the ICJ focused its attention on Article 36 of the Convention. It did not take into consideration Article 55 of the Convention, which obliges the officers of the sending state to respect the laws and regulations of the receiving state. Although the Article is about immunities and privileges of the consular officers of the sending State, it implicates all Indian consular officers posted in Pakistan as an extension of the Indian state, which appointed Kulbhushan Jadhav to carry out espionage activities in Pakistan, and also issued him a genuine Indian passport under a false alias.

Conclusion
The ICJ ruling of 17 July 2008 adds the following to the international case law:

1.The ACJ can disregard the established principle of customary international law which states that local remedies be fully exhausted before a State brings a case to the ICJ for consideration.

2.Irrespective of the provision in Article 36 paragraph 1B which states that “if he [the accused] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” about his arrest, it is now established by ICJ that the request of the accused, even if not expressed, is always implied under paragraph 1B. 16

3.A State arresting a foreign national is obliged to unconditionally observe Article 36 paragraphs 1A, 1B and 1C of Vienna Convention on Consular Relations (1963) regardless of the nature of the accusation, including terrorism and espionage.

Suggestions for Pakistan

While giving full effect to the detailed ruling of the ICJ in its judicial process for the Jadhav case, Pakistan should consider taking the following additional steps with the relevant national and international bodies:

1.Propose to the UN to convene a comprehensive review of the 1963 Convention and its Optional Protocol in the light of the changed nature of international relations, which include, inter alia, misuse of consular premises by sending States to undertake anti-state activities in the receiving State; State-sponsored terrorism through contracted intelligence officers and civilians posing as journalists, businessmen and INGO personnel; spread of terrorism and hatred though social media; inter-state cyber wars; and, cross border illegal financial transactions.

2.Pakistan can also, should it so wish, submit a reservation or declaration to the 1963 Convention stating that it will not consider Article 63:1B binding on the State in instances of foreign nationals arrested for proven terrorist activities or espionage, pending completion of its internal investigation. Such as resolution or declaration should first be passed by the Parliament.

Notes:
1. ICJ ruling. Paragraph 25. Full Text: The remedies requested by India in its final submissions have already been set out (see paragraph 19 above). In summary, India requests the Court to adjudge and declare that Pakistan acted in breach of Article 36 of the Vienna Convention on Consular Relations. Pursuant to the foregoing, India asks the Court to declare that the sentence of Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, and that India is entitled to restitutio in integrum. It also requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, to direct Pakistan to release Mr. Jadhav and to facilitate his safe passage to India. In the alternative, and if the Court were to find that Mr. Jadhav is not to be released, India requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence awarded by that court. In the further alternative, India asks the Court to direct Pakistan to take steps to annul the decision of the military court. In either event, it requests the Court to direct a trial under ordinary law before civilian courts, after excluding Mr. Jadhav’s confession and in strict conformity with the provisions of the International Covenant on Civil and Political Rights, with full consular access and with a right for India to arrange for Mr. Jadhav’s legal representation.
2. Ibid. Paragraph 135
3. Ibid. Paragraph 130
4. Ibid. Paragraph 147
5. Ibid. Paragraphs 139 & 145
6. Ibid. Full Text of Paragraph 149. The Court, (1) Unanimously, Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017; (2) By fifteen votes to one [and in all other subsequent paragraphs], Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible; (3) Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision; (4) Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations; (5) Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations; (6) Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations; (7) Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment; (8) Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.
7. Ibid. Paragraph 111
8. Ibid. Paragraph 113
9. Ibid. Paragraph 134
10.Ibid. Paragraphs 141 & 149
11. Ibid. Paragraph 145
12. Ibid. Paragraph 102
13. Point vi of the Agreement on consular access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India. Islamabad, 21 May 2008.
https://treaties.un.org/doc/Publication/UNTS/No%20Volume/54471/Part/I-54471-08000002804b7dde.pdf
14. ICJ ruling. Paragraph 96
15. Text of Article 36: Communication and contact with nationals of the sending State.
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
16. Ibid. Paragraph110

London: 18 July 2019

Okey, We Bought Imran Khan’s Dream last July but What’s Next!


By Syed Sharfuddin

Last July I was packing my bags and tidying up my papers to fly to Pakistan. The assignment was to accompany the Commonwealth Observer Group for the 2018 General Election as an independent Political Consultant. While in Pakistan I observed that the dream PTI leader Imran Khan sold to the public for a Naya Pakistan had made deep impact on the mindset and imagination of the middle class, especially women and young persons and those entering the job market. PTI was winning and the electoral campaign said so clearly. Imran Khan had his critics too, most of whom belonged to powerful feudal dynastic families in Sindh and Punjab. They feared for the loss of their own power and privileges in the political Tsunami that was overtaking the length and breadth of the country. The second and third tier of rival politicians who were considered electable in their constituencies, jumped ship and joined PTI. Some of them even got tickets to contest election from PTI platform and some who were not that lucky stood as independents.

I also noticed that the military, which was not interested in manipulating the elections or changing the results of the ballot on the night of the count, and the judiciary which found itself unwillingly caught between the devil and the deep sea with high profiled corruption cases, were both covertly pleased that finally Pakistan was going to take a breath of fresh air with the victory of PTI. The opposition’s allegations of military rigging the election under the pretext of providing security cover were eventually proved false.

The road to PTI victory was not smooth. Coming very lose to election date, and often incomplete, judicial verdicts on the corruption cases of the outgoing Prime Minister Nawaz Sharif and his family members and a covert externally-funded global cyber campaign to link the Pakistan military with PTI’s campaign had soured the electoral atmosphere and divided the media which fuelled controversies and conspiracy theories in the traditional fashion of singing the tune of whoever gave them political advertisements and stuffed their pockets, euphemistically called lifafas. Pakistani social media also contributed to this senseless blitz without realising the damage they were doing to the reputation of the country. In this unfortunate discourse Imran Khan unwittingly painted Pakistan as a corrupt and misgoverned country. In the first few months of his Prime Ministership he continued to harp on this narrative in his meetings with foreign dignitaries and overseas investors, little realising that the image that went out to them was of a country they should not trust and stay away from by a barge pole.

Not only the campaign was bitter and conveyed the impression of absence of level playing field, in the night of the poll count the disappointing performance of the results management system which was jointly built by NADRA and ECP, left a bad taste in the mouth regarding Pakistani politicians who remained true to the reputation of not conceding their electoral defeat gracefully.

Following the elections, PTI emerged as the largest party in the National Assembly but it could not secure outright majority in the House, which was another proof that the elections were not rigged. The talk of selected Prime Minister therefore appears both irresponsible and undemocratic indicating lack of faith in the political process which is the result of a parliamentary consensus by politicians themselves. In the provinces, PTI won Punjab and KPK but needed coalition partners in Sindh and Baluchistan to form majority governments.

Since coming to power last year, the government of Prime Minister Imran Khan has discovered that governing a country like Pakistan is no mean task. It has also learnt the importance of doing thorough homework before making any political promises because it is only after being in government that a leader comes to appreciate the true state of affairs and the pressures that decide the common denominator in taking national decisions. A perfect example of this is the electoral promise of PTI that it will not go to the IMF for emergency financing, or the claim that the looted money which was illegally sent abroad by corrupt politicians will be repatriated to Pakistan with the help of friendly countries and the international anti-money laundering bodies.

In the last 12 months in which two and a half budgets were given by the government, including the one just passed in the National Assembly, revenue collection has been less than forecasted, inflation is rampant and foreign debt is higher than ever in the history of the country. Despite large injections of cash Dollars amounting to 9 billion, 3 billion each from Saudi Arabia, China and the UAE, the foreign exchange reserves of the country have not been able to prevent the steep fall of the Pakistani Rupee vis-a-vis the US Dollar. The recently signed IMF agreement has come with tough conditionalities calling for radical restructuring of the economy, an overhaul of the revenue collecting apparatus, expansion of income-tax base and putting an end to government subsidies on utilities and food items designed to be poor friendly. The restructuring is taking a toll on the ordinary public, as well as the business sector which has been hit hard by low investments, high import tariffs and a bearish stock market behaviour. Manufacturing has suffered due to high costs of production and utilities, rising interest rates, cuts on export credits, low export yields and disappointing results in the exploration of oil and gas reserves in the country’s potentially promising subterranin fields. Many from the middle class and the poor who expected a quick change in their circumstances are disenchanted and think they made a mistake voting for PTI. The opposition is also not quiet. It keeps flogging the government for every word they say and every bill they bring to parliament to debate and enact.

In this situation, the  military has found a firm place for itself in the major decision-making institutions of the country by becoming members of the country’s key economic bodies, the National Development Council and Economic Advisory Committee. The military is also represented or has visible presence in the National Security Council, National Counter Terrorism Authority, National Disaster Management Authority, Civil Aviation Authority and Airport Security Force which is quite understandable given the security and defence challenges Pakistan faces internally, as well as on its external borders. But while their representation in civilian and political institutions may be good-intentioned and tactically helpful, in the broader context of democratic governance it is an overkill. The reason is because the military enjoys the status of a neutral, non-partisan and credible institution which could act like an A&E call to 911 when needed by civilian government. The military should always stay invisible in the background as a final deterrent to caution inept politicians, and in times of crisis call on them to put things right or else face a mid-term election. The military’s formal institutional presence in the political decision making forums of the country undermines their role as a neutral arbiter and as an insurance policy against disaster.

A number of Pakistanis think that the military is actually running the country from the shoulder of Imran Khan who is Prime Minister only in name. They point to the present harmony in the civil-political relations not as a sign of stability but as the capitulation of civilian authority by the military. These people draw their inspiration from liberal civil society, anti-military and anti-Islam lobbies and friends of India and the Sharifs, some at home (muted) and many overseas (vocal). Irrespective of their intentions, their argument holds ground to the extent that while the military is excellent as a rescuer in a disaster situation, it is unhelpful in governing the country by proxy and taking decisions which dominate, if not bypass, national and provincial political processes in a federation. The hybrid semi democratic rules of Generals Ayub, Zia and Musharraf are seen by many as democracy’s dark periods, each of which kicked Pakistan back into the past instead of leading it to the future.

In many ways Pakistan is today re-living the political history of Bangladesh in the years 2006-2008 during which an extended interim government, covertly supported by the Bangladesh military, cleaned up the mess left by the government of outgoing Prime Minister Begum Khaleda Zia and paved the way for Awami League to win the December 2008 election and form a government in January 2009. The example of Bangladesh may not be perfect because in Pakistan the interim government lasted only over 2 months and not 2 years. It took office on 1 June 2018 and resigned on 18 August 2018 when Imran Khan was sworn in as Prime Minister. But the fact remains that in the present Pakistan government, which is the third democratic civilian government since General Musharraf gave up power, a press release from DG ISPR carries more weight than a press release from the Ministry of Information or the Prime Minister’s Office. There is no country in South Asia other than Pakistan where the military leadership is given more space in the country’s electronic and print media for news, photos and statements. Even foreign envoys and visiting overseas dignitaries find it necessary to pay a courtesy call on the COAS after calling on the PM or FM. The powerful religious lobby ‘bows’ to no one except the military. DG ISPR’s Twitter account which comments on developments ranging from sports events to development projects, which are purely civilian matters, is run in parallel with the Tweets of some of the more energetic and media-savvy Ministers of the present Cabinet whose job is to keep PTI in the public eye. At least in Bangladesh, after the initial hiccups, the government of Sheikh Hasina took full control of the political process from the military and cleaned up corruption and graft using the parliament and judicial institutions, leading to political stability, investor confidence, rapid economic growth and elimination of extremist voices. Could Pakistan do the same using its elected political capital with precision and come out clean from the muddy waters?

But Pakistan is not Bangladesh. It has its own security threats, political processes and developmental paradigm. It has its friends and its enemies. In a nutshell, Pakistan is personified by its national cricket team which is capable of touching the zenith of success in one match and in another match falling to the ground like a busted missile which is going nowhere. Interestingly, this unpredictability gives Pakistan a unique advantage. Neither its public nor the international players who are interested in this country can completely write off the present government, or the country for that matter, nor can they embrace it fully until the results are final.

It is fair to say that having completed one year out of the mandated five years in its electoral term, it is too soon to judge any government’s performance, let alone that of the PTI government in Pakistan. Therefore the dreamers will have to go on dreaming for at least another couple of years to see whether the austerity measure and resulting economic reforms are working for the country, and whether a Naya Pakistan is finally coming to take shape. While the critics of PTI may continue to boo the government for its shortfalls or gaffes, and while the supporters of this government may continue to applaud every step it takes for better or worse, Prime Minister Imran Khan and his government must be given space and time to do the right things this country needs. After all, Pakistan is only 72 years old in the journey of a thousand years.

7 July 2019.

Background Note:
1. On 28 July 2017, the Pakistan Supreme Court while ruling on the petitions of PTI Chairman Imran Khan, MNA Sheikh Rashid Ahmed and other political leaders, disqualified ex-Prime Minister Nawaz Sharif from politics and directed NAB to file three references — Avenfield Properties, Al-Azizia and Flagship Investment — against Nawaz Sharif and other members of his family in the NAB accountability court. 2. On 6 July 2018, an Accountability court of Judge Mohammad Bashir convicted ex-Prime Minister Nawaz Sharif in the Avenfield Properties reference and sentenced him to 10 years in prison. 3. On 24 December 2018 another Accountability court of Judge Mohammad Arshad Malik convicted Nawaz Sharif in the Al-Azizia reference and awarded him 7 years’ imprisonment, besides imposing fines of Rs1.5 billion and $25 million on the former PML-N leader. 4. In January 2019 the Ex PM’s  legal team filed an appeal, as well as a petition against the decision in the Al Azizia steel mills case. 5. In July 2019 the family of PML(N) which includes the top leadership of the party alleged that the Accountability Court’s Judge Arshad Malik was blackmailed to give a verdict against the ex-Prime Minister under duress. They produced a video clip and an audio recording in support of this allegation. The allegations were refuted by Judge Arshad Malik as false, and based on doctored evidence.

Mr Syed Sharfuddin is a political analyst and a former Pakistani diplomat. He was Special Adviser in the Political Affairs of Commonwealth Secretariat in London from 2000 to 2006, and CEO of Muslim Aid UK from 2010 to 2014.

Pakistan Electoral System: Multiple Constituency Candidatures and their Impact on By-Elections

Syed Sharfuddin

On 14 October 2018 over 5 million voters will be going to the polls again to elect public representatives for the vacant 35 seats in the federal National Assembly and Provincial Assemblies of Pakistan. According to Pakistan Election Commission, over 300 candidates are contesting in the forthcoming bye-elections. Only last July, these seats were contested in the 2018 Pakistan General Election and voters freely exercised their right to vote. However, this exercise went waste because the candidates who won, had also won in other constituencies and decided to opt out of these constituencies resulting in fresh vacant seats.
The revised 2017 Electoral Law and 2017 Election Rules which allow citizens to contest elections from multiple constituencies need to be reviewed by the Parliament and the Election Commission of Pakistan in the light of good international practice. In a developing country like Pakistan, this second exercise is a waste of scare economic resources and a blatant abuse of democracy. Multiple candidacies mean depriving other candidates of their fair chance to get elected in the primary ballot in the first place at the time of the General Election. We all know that the incumbency factor plays a major role in the by-elections which are not held under a neutral caretaker administration which is mandated by the constitution for the conduct of a General Election.
The argument in favour of multiple-constituency candidacies is undestandable in the context proportionality. It is meant to protect the right of individual candidates to contest elections within the stipulated timeframe of the Election Commission’s published schedule of elections. If any candidate gets disqualified by an RO in a district for some reason which is disputed before an electoral tribunal, or if elections are postponed in a constituency for some reason where s/he is a candidate, s/he can still contest from another constituency where s/he is a double candidate. But at the last General Election in July 2018 there were popular politicians contesting from not just two but as many as four constituencies in order to “protect” their chances of becoming MNA or MPA. This is the height of enthusiasm you might say. At the end of the day, it was this devouring ‘yahan bhi woh, wahan bhi woh’ tendency which resulted in 35 fresh vacancies for the 14 October by-elections, enough to cause an upset in a delicately balanced Parliament if the ruling party and/or its allied parties do not win most seats.
The arrest of the opposition leader in the current circumstances immediately before the by-elections lends weight to the outcry of the opposition parties that for the second time round, they are being victimised on the eve of an important poll.
It is a matter not just for the Parliament to reflect but also for the ECP which brings good international practice in the management of elections. The custodians of democracy individually and institutionally must try to improve the electoral system irrespective of their personal preferences for systems, parties and candidates.
Any comments on the reform of multiple constituency nominations system are welcome.

13 October 2018