THE Kashmir dispute remains one of the most sensitive and long-standing conflicts in the world and its unresolved nature continues to have grave consequences for the region’s stability. A key component of resolving this issue has always been the pledge made in the form of United Nations Security Council (UNSC) Resolutions that advocate for a plebiscite to be held in Jammu and Kashmir under UN supervision.
This would allow the Kashmiri people to determine their political future. The legal framework for this plebiscite has been established in various agreements, constitutional acts and resolutions. Still, significant failures have occurred in implementing these measures, particularly by the Government of Azad Jammu & Kashmir (AJK), entrusted with specific duties related to the plebiscite.
The Dereliction of Constitutional Duty by the Government of Azad Kashmir: The Karachi Agreement (1949) and the UNCIP (United Nations Commission for India and Pakistan) resolutions laid the foundation for a future plebiscite, providing the mechanism to allow Kashmiris to exercise their right to self-determination. The 1970 and 1974 constitutional acts further clarified the responsibilities of the AJK Government in facilitating the plebiscite process. Specifically, ∙ Article 8 of the Constitutional Act 1970: This article charged the AJK Government with the responsibility to ensure that actions related to the plebiscite were carried out in line with the UNCIP Resolutions. ∙ Article 11 of the Constitutional Act 1974: This article reiterated the importance of a framework for conducting a plebiscite, again emphasizing that the AJK Government had a duty to act in accordance with the agreed-upon principles.
In spite of these constitutional mandates, the Azad Kashmir Government has failed to establish the necessary institutional framework for organizing and overseeing a UN-supervised plebiscite, a failure that was directly addressed by the High Court of Azad Kashmir in April 1999. The court decision explicitly directed the Azad Kashmir Government to set up a Plebiscite Advisory Institutional Framework. However, to date, this framework remains non-existent. This failure amounts to a serious dereliction of constitutional duty because: 1. Legal Obligation Not Fulfilled: The failure to implement the plebiscite framework violates constitutional provisions laid out in Articles 8 and 11 of the Acts of 1970 and 1974. 2. Undermining International Agreements: By not establishing the institutional framework, Azad Kashmir failed to meet its obligations under the Karachi Agreement and the UNCIP Resolutions, further delaying the implementation of the plebiscite and the right to self-determination for the Kashmiri people. 3. Undermining Accountability: The lack of a structured framework means there has been little transparency or accountability in the process, which is crucial for determining the future of Kashmir. This failure to act has emboldened parties that seek to manipulate the situation for their own interests.
Encouraging India’s Action of 5 August 2019: India’s decision on 5 August 2019 to abrogate Article 370 of the Indian Constitution, which granted Jammu and Kashmir special autonomy, is often considered to be a drastic action aimed at solidifying India’s control over the disputed region. One of the key factors contributing to India’s confidence in this bold move was the lack of progress in fulfilling the plebiscite promise. If Azad Kashmir had established the Plebiscite Institutional Framework as mandated by its own court orders and constitutional duties, it could have provided a credible deterrent to India. The framework would have demonstrated the legitimacy and preparedness of the Kashmiris for the plebiscite and made it more difficult for India to assert unilateral control over the region.
The inaction of Azad Kashmir in this regard has sent a signal to India that the international community is divided and not united in the implementation of plebiscite commitments. India may have perceived the lack of action as a failure of the Pakistani side to fully implement the constitutional and international resolutions that support the right to self determination for Kashmiris. In this context, Azad Kashmir’s failure to implement a plebiscite framework was a missed opportunity that could have discouraged India’s actions in 2019 and maintained the momentum for a peaceful resolution of the dispute.
The Failure of the Government of Pakistan: The Government of Pakistan, as a party to the Karachi Agreement and the UNCIP Resolutions, also has a critical role to play in ensuring that the plebiscite process is followed through. While Pakistan has consistently raised the Kashmir issue at international forums, it has not sufficiently pressured or guided Azad Kashmir to fulfill its constitutional and legal responsibilities regarding the plebiscite process. By failing to intervene effectively, Pakistan allowed the situation to stagnate, which contributed to the ongoing lack of accountability in Azad Kashmir. Furthermore, the absence of a strong diplomatic and institutional push from Pakistan for the creation of the plebiscite framework reflects poorly on the nation’s commitment to its obligations under international law. The Government of Pakistan also failed to maintain coherence in its stance on the Kashmir issue, which weakened its case for a UN-supervised plebiscite. Pakistan’s own inconsistencies, coupled with Azad Kashmir’s failure to create the necessary framework, undermined the credibility of the Kashmir cause on the global stage.
Civil and Criminal Liabilities of the Azad Kashmir Assembly: The elected Assembly of AJK can be held liable for both civil and criminal negligence for its failure to adhere to constitutional and court-mandated responsibilities. By not complying with the High Court’s directive, members of the Assembly could be seen as neglecting their constitutional duties, and in the absence of an institutional framework, they may also face civil liability for any potential damages caused by the delay in resolving the Kashmir dispute. The failure to act as required by law could also result in criminal liability depending on the interpretation of the laws governing public office and the degree of negligence involved. This could be considered a dereliction of public duty as it has hindered the exercise of the Kashmiri people’s right to self-determination.
The Role of JKCHR (Jammu and Kashmir Council for Human Rights): The Jammu and Kashmir Council for Human Rights (JKCHR), as the petitioner in the case, plays a pivotal role in advocating for the enforcement of constitutional obligations. JKCHR can continue to push for legal accountability, ensuring that the Azad Kashmir Government fulfils its obligations as directed by the court. In the light of the ongoing failure of the Government of Azad Kashmir, JKCHR could now pursue legal actions against both the AJK and the Government of Pakistan for their collective failure to implement the framework required by constitutional law. Furthermore, JKCHR can appeal to the international community and UN bodies to hold both governments accountable for their neglect of the Kashmiris’ right to self-determination.
Conclusion: The failure of Azad Kashmir to create a Plebiscite Institutional Framework as required under the 1970 and 1974 constitutional acts and the court ruling of 1999 is a grave dereliction of constitutional duty, which has directly contributed to the weakening of the Kashmir cause. This failure, combined with the lack of action from Pakistan, has not only failed to deter India from its actions of 5 August 2019 but has also exposed the deep divisions and inefficiencies within the governance structures tasked with upholding the rights of the Kashmiri people. The legal and political ramifications for the elected Assembly of AJK are severe, and the JKCHR must continue to play an active role in seeking justice for Kashmiris and pushing for the realization of their right to self-determination.
—The writer is the President of the Jammu and Kashmir Council for Human Rights (JKCHR).
