A Jammu and Kashmir Settlement: “Idhar Hum, Udhar Tum”?

A Jammu and Kashmir Settlement: “Idhar Hum, Udhar Tum”?

Sushant Sareen

Over the last decade or so, after every few months reports start appearing of Pakistan planning to change the status of Pakistan-occupied Ladakh (PoL) and make it into its fifth province. Some of these reports relate to announcements made by Pakistani politicians – for instance, on the eve of ‘elections’ in PoL (Gilgit Baltistan) last November, Imran Khan announced that his government had decided to give provisional provincial status to the region; others are calculated leaks to gauge public reaction, if you will, trial balloons; still others are speculative reports based on some source.

After the recently concluded ‘election’ in Pakistan-occupied Jammu and Kashmir (PoJK), once again there are reports that the Pakistan government is finalising legislation to amend the constitution and give provisional provincial status to PoL.

While in and of itself such an amendment will be extremely controversial, the fact that it might not be limited to only PoL, but could also include PoJK is something that could lead to three possible outcomes: one, it could blow in the face of Imran Khan’s ‘selected’ regime; two, it could lead to a final settlement of the Kashmir on the basis of India and Pakistan keeping what they have i.e. Line of Control as an International Border; or three, these changes make no difference on ground and the conflict between India and Pakistan either worsens or stays the way it is.

There are actually two drafts of the proposed constitutional amendment doing the rounds in Pakistan. The first one is what has appeared in Pakistani press and is limited to only PoL; the second one has been circulating on some social media platforms and includes PoJK. While normally stuff circulating on social media needs to be taken with a pinch of salt, what lends some credence to the draft that includes PoJK is the fact that during the recently concluded election campaign, the opposition had alleged that Imran Khan was going to make the region into a province. Of course, Imran Khan denied that he had any such intentions but given his track record for making U-turns, no one is taking anything he says very seriously.

Both the drafts that are circulating, try to not fall foul of the now all but defunct UN resolutions on Jammu and Kashmir. As such these drafts keep repeating that the “final disposition” of the erstwhile state of J&K will be in accordance with the UN resolutions and that Pakistan will endeavour for a plebiscite under the auspices of the UN.

But other than this ‘promise’ which is basically a sort of fig leaf to keep the fiction of plebiscite alive in the public perception, Pakistan is virtually annexing the two parts of Jammu and Kashmir under its illegal occupation. Among the amendments being made, the current Article 257 of Pakistan’s constitution will be somewhat similar to the Article 370 of the Indian constitution as it was before the amendments made on 5^th August, 2019.

As per the draft law, only those provisions of the constitution will apply to PoL and PoJK “as the President may by order specify” and both the Pakistan-occupied regions will be treated as provinces only for the “purposes of those provisions of the constitution that apply to them”. What is more, it is provided that the Presidential order will be issued only with the ‘concurrence’ of the governments of the occupied territories.

The sleight of hand is clear: it is not the assemblies but the executive arm of the so-called ‘provinces’ that have to concur with the Presidential orders. Given that the ‘governments’ in both the Pakistan-occupied parts of Jammu and Kashmir are puppets that are installed through rigged elections and are run by deputy secretary level officials beholden to Islamabad and Rawalpindi, it means that Pakistan can do what it wishes without any check or balance.

A glaring omission in the proposed amendment to Article 257 of Pakistan’s constitution is the promise made repeatedly by Imran Khan that after a plebiscite under the aegis of the UN, there will be a second referendum in which people of both parts of Pakistan-occupied Kashmir will be given a choice between independence and becoming part of Pakistan.

Imran’s cronies have justified this promise by referring to Article 257 which says that “when the people of the state of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that state shall be determined in accordance with the wishes of the people of that state”. Nowhere is the ‘future relationship’ deemed to mean a choice between independence and Pakistan. But neither Imran Khan nor his selectors in the military, and certainly no other politician has any intention of keeping this promise. Because if indeed Imran was serious about giving a choice between independence and Pakistan, then this was an ideal opportunity to enshrine it in the proposed constitutional amendment.

The draft law also makes a distinction between PoL and PoJK by treating denizens of PoL as ‘citizens of Pakistan domiciled in PoL’ while those of PoJK are treated as ‘state subjects’ of Jammu and Kashmir state. The rest of the nomenclatures in the two regions remains what they are. This means PoJK will continue to have a PM and President, while PoL will have a Governor and CM.

Both regions will be given representation in Pakistan’s National Assembly and Senate – PoL will get 3 and PoJK 5 seats in National Assembly and both will get 5 seats each in the Senate. The allocation of seats in the Senate suggest that these ‘provisional provinces’ will be treated as inferior to the other provinces which have 23 seats each. Some of the other constitutional and administrative changes have relatively less salience – the abolishing of the Supreme Appellate Tribunal in PoL (thereby extending jurisdiction of Supreme Court of Pakistan to the occupied territory), or merging the Election Commission of PoL with the Election Commission of Pakistan.

Clearly, whether Pakistan goes for annexing just PoL or also includes PoJK in its plans, it will completely blow apart whatever little case Pakistan continues to make on the UN resolutions and plebiscite in the erstwhile state of J&K. For one, this will be a unilateral move which goes against the UN resolutions especially since unlike India which has always insisted that J&K is an integral part, Pakistan’s stand has been that the parts of J&K under its illegal occupation are not a part of Pakistan and their final status has to be determined.

By annexing these parts, Pakistan will be effectively rubbishing the UN resolutions. Secondly, Pakistan accused India of bifurcating the state into J&K and Ladakh. But Pakistan will now be formally bifurcating the parts of the state under its occupation. Clearly, this is not a tenable proposition and completely undermines whatever case Pakistan was trying to build against India after 5 August 2019.

Third, any such move by Pakistan will puncture the balloon of the Islamists and separatists in India, as also of the ‘nationalists’ in the Pakistan occupied portions of the state. The separatists will be left with no feet to stand on, and the so called ‘temporary provisions’ – “pending the final disposition of the state…” – isn’t going to convince anyone of Pakistan’s bona fides in this matter. If anything, it could backfire badly, especially in PoJK as also in the Union Territory of Jammu and Kashmir.

Fourth, Imran Khan is already being accused by the opposition parties in Pakistan of selling out Kashmir to Narendra Modi, of having done a back-room deal on basis of “idhar hum, udhar tum” – the evocative phrase used by Zulfikar Ali Bhutto to signal a de facto division of East Pakistan (now Bangladesh) from what is now the rump Pakistan. Any such constitutional change that annexes one or both parts of Pakistan occupied regions of Kashmir will only fuel these allegations further.

Fifth, it is possible that Pakistan might only annex PoL. This will primarily be to satisfy the Chinese who have been insisting that the status of the region be made clear because their investments are involved. At one level, such a move will only reaffirm Pakistan as a client state of China. But at another level, it will muddy the waters in the whole of the erstwhile state to a point that Pakistan will be left with no case at all in international forums.

As far as India is concerned, anything Pakistan does in the occupied portions doesn’t change India’s stand that the entire state of Jammu and Kashmir is an integral part of India and the only thing to be decided is the modalities of Pakistan vacating its illegal occupation. In other words, any change in the status of the occupied territories will be completely unacceptable to India.

And yet, there is a tantalising possibility that such a move could eventually lead to making the de facto border – Line of Control – into an International Border and a final settlement of the vexed issue of Jammu and Kashmir.

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Author

Sushant Sareen is Senior Fellow, Observer Research Foundation and Consultant Editor, Chanakya Forum. He is an expert on Pakistan and Terrorism, his published works include Balochistan: Forgotten War, Forsaken People (2017), Corridor Calculus: China-Pakistan Economic Corridor & China’s Comprador model of investment in Pakistan (2016).