Misunderstood Powers of President and Prime Minister of Azad Kashmir
by Dr. Syed Nazir Gilani

Article published in Weekly Nation London dated Friday 25 October- Thursday 31 October 2002 and Friday 1st November - Thursday7th November 2002.

For over a month the Government of the State of Azad Jammu and Kashmir has thrown up a serious debate on the powers of the Prime Minister and the President. The impulsive instincts of the two offices – of the President and the Prime Minister relate more to their own persons and scantly have any connection with public interest. The issue has been further complicated not for reasons of any academic debate or interpretations but on the basis of sheer ignorance by the speaker of AJ & K Assembly and his colleagues while addressing a Jang Forum in London, the details of which are published on Sunday 20 October 2002.

The speaker of AJ & K Assembly and his two colleagues holding offices of public trust under the Constitutional Discipline of AJ & K Constitution have committed a serious breach of trust. It is equally disappointing to note that a leading news -paper should allow its columns to be so abused and trashed with extreme ignorance of the Constitution.

The situation assumes a much more serious dimension – when speaker of a legislative assembly, a leader of the legislature, seems to have so superficial or in some cases no knowledge of the Constitutional Discipline at all, when he maintains that the President of Azad Jammu and Kashmir has no powers. As a jurist I would regard that by this statement he has blasphemed the constitutional trust and brought the prestige of the whole legislature to a big shame.

The members of the legislature of Azad Jammu and Kashmir have not only sold a trash of ignorance through the press to the people in the United Kingdom but unfortunately somehow through the routine channels have accessed the two houses of British Parliament and sold without an iota of shame the same ignorance to the very few available. It would be a leading joke of this century if our respected ethnic/Pakistani Press based in UK abdicates its responsibility and our distinguished representatives in the House of Lords and Commons yield to abet in this tragedy of ‘common sense’.

In view of this recent and an on going debate about the authority of the President and the Prime Minister in Azad Kashmir and as a follow up to Kashmir Conference on 25th August 2002 in Islamabad I have already delivered a communication to the President of Azad Kashmir on 17th October through my office in Rawalpindi. However, after reading the report of the Jang Forum on Sunday 20th October 2002 I have decided to address the subject in the interests of general public and in particular of those who have an eye on the affairs of Jammu and Kashmir.

My contribution around this issue dates back to December 1992 – April 1999, when I argued a constitutional writ petition for 7 years before the High Court of Azad Jammu and Kashmir. The office of the President keeps changing hands and Sardar Ibrahim Khan, Sardar Abdul Qayyum Khan, Sardar Sikandar Hayat Khan and General Hayat Khan have also remained holders of this office. My approach is not person-oriented. It is restrained to the jurisprudence of the two offices under the Constitution.

An understanding of a Constitutional Discipline rests at the core of a legitimate rule in any politically organized community. It is the constitutional discipline or a constitution that arranges and settles the difference between a ‘legal sovereignty’ and a ‘political sovereignty’. The legal sovereignty is based upon the belief that ultimate and final authority resides in the laws of the State. This is de jure sovereignty, supreme power defined in terms of legal authority. In other words, it is based upon the right to require somebody to comply, as defined by law.

A political sovereignty is not in any way based upon a claim to legal authority but is concerned simply about the actual distribution of power, that is, de facto sovereignty. Political sovereignty therefore refers to the existence of a supreme political power, possessed of the ability to command obedience because it monopolises coercive force.

However, although these two concepts can be distinguished analytically, they are closely related in practice. There are reasons to believe that on their own neither constitutes a viable form of sovereignty. In real terms, sovereignty always involves a claim to exercise legal authority, a claim to exercise power by right and not merely by virtue of force. The sovereignty in modern times is reflected in the supremacy of law.

In view of the recent and on going compelling desire expressed by the President and the Prime Minister to nudge for the scales of authority in the affairs of the State I shall restrain myself to discuss the jurisprudence of the powers of the President and the Prime Minister.

I continue to hold a well considered opinion that the leadership of Kashmir on either side of the line of control [cease-fire-line] does not have a reliable understanding of the jurisprudence of the Kashmir case. I would short list this ‘unreliable understanding’ and akin it to the office of the President and the Prime Minister of Azad Kashmir.

1.Prima facie according to Section 7 of Azad Jammu and Kashmir Interim Constitution Act 1974 the President ‘shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him’. However, a slice of constitutional wisdom that precedes this understanding and a lot more that exists in the Constitution securely overloads the President with special powers, more instructive and overwhelming than the powers of the Prime Minister in respect of the principal essential – the question of ‘self-determination’ and ‘Plebiscite’.

2.The Constitution of Azad Kashmir 1974 yields that “the future status of the State of Jammu and Kashmir is yet to be determined in accordance with the freely expressed will of the people of the State through the democratic method of free and fair plebiscite under the auspices of the United Nations as envisaged in the UNCIP Resolutions adopted from time to time”.

3. According to the Constitution of Azad Kashmir 1974 the Government of Pakistan has assumed the discharge of its responsibilities under the UNCIP Resolutions in Azad Kashmir. The Constitution of Azad Kashmir recognizes the authority of the President of Azad Kashmir in reference to UNCIP and Plebiscite.

4. The Constitution of Azad Kashmir under Section 11 recognizes the powers of the President as an exclusive, in reference to UNCIP and Plebiscite. It depends on the reliable understanding of the jurisprudence of the Preamble of the Constitution [which avows to advance a programme of action stipulated under UNCIP Resolutions], the ensuing understanding of the powers under Section 11 and the gregarious understanding of the provisional declarations of October 4 and October 24 1947, that a President could either distinguish himself in reference to his principal essential duty to self determination or err to cocoon himself in ignorance and suffer the indignity for not waking up to the jurisprudence of his exclusive powers.

5. The Constitution 1974 allows the President to take the lead on the principal essential [self-determination] and create as much authority in reference to UNCIP and in the exercise of his powers under Section 11 as he could reasonably think of. Prima facie it may appear as a single unitary power but in fact the President could use the wisdom of Section 11 to encompass a full-scale spread of his powers all the way from Muzaffarabad and through Pakistan on to the United Nations.

6. The Constitution in its Preamble has chartered the priorities and set the principal ‘Declaration of Intent’. Government of Azad Jammu and Kashmir, is a ‘provisional establishment’, ‘to provide for the better Government and Administration of Azad Jammu and Kashmir until such time as the status of Jammu and Kashmir is determined…. in accordance with the freely expressed will of the people of the State through the democratic method of free and fair plebiscite under the auspices of the United Nations as envisaged in the UNCIP Resolutions adopted from time to time’.

7. Section 11 in the Constitution recognizing the President of Azad Kashmir and Section 3 in Part II of the Truce Agreement in the 13th August 1948 Resolution of the Commission, are interchangeable in awarding the fundamental responsibilities and recognizing the role/and scope of the Government of Azad Jammu and Kashmir.

8. An aversion to the Constitutional priorities under Section 11, may safely point to the fact that other institutions – Legislature, Executive and Judiciary, may have remained ‘wanting’ in constitutional and legal sanctity/authority.

9. The office of the President over the years has failed in regard to Section 11, which concerns the rights and interests of the people of Jammu and Kashmir. It directs the President to perform a constitutional duty for public good. The non-exercise of a ‘Discretion’ – concerning rights and interests of public is an abuse of ‘Discretion’ and a non-use of Discretion after using it once is also an abuse of Discretion. President’s office has failed on all these counts of reasonableness and more so in the special context created since the start of resistance movement in Kashmir, the dereliction in the discharge of a basic duty is a serious matter.

10. It is important to state that Section 11 has been assented to by the Government of Pakistan and the exercise of powers under this Section are not repugnant to the constitutional partnership between Azad Kashmir and Pakistan. Any direction under Section 11 does not interfere in any shape or manner with the specifics under Sections 19 (2), 31 (3) and 56 of the Constitution. On the contrary a direction under Section 11 shall have to be understood, in conjunction with the rationale of article 257 of the Constitution of Pakistan and a reference to Azad Kashmir in UNCIP Resolutions.

11. The President’s offices, past and present, at Muzaffarabad have failed to understand that since the UN Resolutions apportion the Government based at Srinagar, the task to implement the UN Resolutions and to formally appoint a Plebiscite Administrator, who of course shall be a nominee of the UN Secretary General, Section 11 is the only exclusive power of the President which creates a pressing priority for the Government of Azad Jammu and Kashmir, to stake its title in the involvement around the ‘transfer of the free will’ of the people of Kashmir. Section 11 becomes operative and creates a duty concurrent with the cease-fire and the appointment of UN Observers [UNMOGIP].

12. The office of the President on the one hand pursuant to October 1947 Declaration, duties under Section 8 of 1970 Constitution and Section 11 of 1974 Constitution has derelicted in its one and only defined ‘principal’ obligation and on the other has acquiesced to many other self-serving indulgences of the Government. These indulgences have an overwhelming component of corruption.

13. One of these indulgences remains the sale of overseas seat in the Legislative Assembly to the highest bidder in the United Kingdom and the other is the creation of a self-serving and bogus electorate to elect the refugees against their 12 seats in the assembly. The overseas seat in the AJ & K Legislative Assembly and the seat on the National Kashmir Committee of Pakistan have been sold to a builder in UK. I appreciate that the two Sardars have many claims to good and decent political work in Azad Kashmir. But I have no hesitation to state that their conscious practice to auction the overseas seat of AJ & K Assembly washes all their virtues down the drain. It is a serious abuse of public trust.

14. Prime Minister of AJ & K, on the question of representation and vox populi, has to balance a moral dilemma caused under the Provisional Declaration of the AJ & K Government. According to it – “The Provisional Government, which is assuming the administration of the State is most emphatically not a communal Government. It will include Muslims as well as non-Muslims in the provisional Cabinet which will serve the people, the temporary purpose of restoring law and order in the State and enable the people to elect by their free vote a popular legislature and a popular Government”.

15. The President unlike the Prime Minister has to serve a more durable and a permanent purpose involving a broad spread of work around self-determination. The jurisprudence of ‘administration’ and ‘self-determination’ are two distinguishable features under the Constitution of 1974.

In the above regard the judgement of AJ & K High Court on the JKCHR Writ Petition No. 122/1992 announced on 2nd April 1999 and the reports of JKCHR remain a sufficient reference source for the office of the President to attune his understanding of the jurisprudence of his powers and the jurisprudence of the Kashmir case.

It is not encouraging to find that the Prime Minister and the President are pitched to assert their powers on issues far less important and non urgent on the one hand and on the other endure to perpetuate a deliberate non interest on the principal essential – the right of self determination of the people of Jammu and Kashmir.

It may be important to point out that the wisdom of Section 8 of 1970 Constitution and the wisdom of Section 11 of 1974 Constitution need not to be taken for ordinary literal and strained interpretations. They bear a radical intent and should be used to mean an institutional basis in an obvious and broader context of an inalienable right of a people. It is designed to further a national purpose. The President’s offices have derelicted since 1970 and have continued to fail to interpret their constitutional duties in the light of current social and political conditions at home and abroad.

A citizen of the State of Jammu and Kashmir has a constitutional right, to urge upon the President, duly recognized to use an exclusive power, under Section 8 of 1970 Constitution and Section 11 of the 1974 Constitution, to conjoin this wisdom and authority with the Chartered priorities and principal ‘Declaration of Intent’ in the Preamble and conjoin it with the jurisprudence of UNCIP Resolutions, to admit a sense of urgency and conscientiousness around the question of self-determination of the people of Jammu and Kashmir. The offices of all the Presidents for over 32 years since 1970 Constitution have failed to show fidelity to law.

I wish to conclude by inviting the learned attention of the reader to the fact that from the times of Socrates, Plato and Aristotle the quest for virtue – or goodness or justice under the law – has been a recurrent theme. Socrates, teacher and philosopher, was accused, tried and convicted by grand jury of Athens for corrupting youth with his teachings. Despite the possibility of escape, Socrates chose to accept the verdict of death, which had been imposed upon him in order to demonstrate his fidelity to law. When pressed by Crito to escape, Socrates considers the questions which would be put to him by the laws and constitution of Athens where he to succumb to the temptation to escape the penalty of the law:

Can you deny that by this act [of escaping] which you are contemplating you intend, so far as you have the power, to destroy us, the laws, and the whole State as well? Do you imagine that a city can continue to exist and not turned upside down, if the legal judgements, which are pronounced in it, have no force but are nullified and destroyed by private persons?

We all have a responsibility to demonstrate a fidelity to the rule of law. Let us play a conscious role in restraining ignorance and continue to create awareness around the issues of public interest.

The author is an advocate of Supreme Court and Secretary General of London based NGO JKCHR. The NGO is – in Special Consultative Status with the United Nations.

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