Pakistan government seeks to amend the Constitution of PoJK to take away financial and administrative powers from the regional administration.
Pakistan-occupied Jammu and Kashmir (PoJK) has been grappling with a flurry of protests recently due to the Pakistan government’s plan to amend the region’s constitution to take away financial and administrative powers of the local government. This has resulted in a massive uprising in all the 10 districts of PoJK. Reports said that on July 1, a joint secretary in the Ministry of Kashmir Affairs in Islamabad sent a letter to the chief secretary of PoJK, informing that the Prime Minister of Pakistan Shahbaz Sharif has constituted a six-member committee to seek amendments in the interim constitution of PoJK. The letter has asked the PoJK government to nominate its three members to participate in the deliberations.
Pakistan government’s six-member committee that included ministers of law, defence and Kashmir Affairs will give a final shape to a draft which will be known as the 15th amendment to the Azad Jammu and Kashmir Interim Constitution. It is believed that Prime Minister of PoJK Sardar Tanveer Ilyas has nominated an additional chief secretary, secretary of law and secretary of agriculture to attend the deliberations with the leaders in Islamabad.
Protesters say that the PoJK government should have nominated political leaders cutting across the aisle as this amendment relates to curbing political powers of the local government and has wider ramifications.
The protesters say the decision to nominate bureaucrats to deliberate with the ministers of the Pakistan government is tantamount to surrendering before Islamabad. Publicly Ilyas and even opposition members have so far held the view that they will not allow implementation or legislation of this 15th amendment. Interestingly, the opposition parties in PoJK which are Pakistan Muslim League and the People’s Party are alliance partners in the government under Prime Minister Shabaz Sharif. Pakistan Tehreek e Insaf (PTI) of Imran Khan is the ruling party in PoJK.
A few years ago, under the 13th amendment, the PoJK government had secured rights to legislate on finance and administrative issues, which seems not going well with the political and bureautic class in Pakistan.
Former Prime Minister of PoJK Raja Farooq Haider, whose party PML is in power in Islamabad has stated that he will not allow this amendment to take place. This amendment involves scrapping the 13th amendment and restoration of the Kashmir Council to become a superimposing body above the PoJK government and the legislative assembly. 13th amendment had curtailed the powers of the Pakistan government and its officials on the affairs of PoJK. Pakistan had never allowed a proper set-up in the PoJK and as per the constitution it is deemed to be an interim arrangement, till the the status of the POJK is determined.Under the garb of this interim set-up and dreams of one Jammu & Kashmir State as a whole are trampled , Pakistani authorities have used every tactic to deny political rights to the people of PoJK.
Revival of unelected Kashmir Council
According to the details being drafted in the name of the 15th amendment, the powers of the unelected Kashmir Council will revive and it will play a crucial role in administrative and financial legislation. In the earlier structure, the Pakistan government used to get some Rs. 500 to 600 crore every year as taxes from PoJK. But after the 13th amendment, the money was disbursed to the PoJK government. Therefore, the Pakistan government wants to annul the 13th amendment by bringing the 15th amendment.
The Ministry of Kashmir Affairs and the Chairman of Pakistan parliament’s Kashmir Committee are seen as gravy trains by Pakistani politicians. Such is the rush to head the Kashmir Affairs Ministry in Islamabad that Mian Manzoor Ahmed Khan Watoo, who has been chief minister of Punjab and then industry minister had preferred to occupy the post of this ministry rather than seeking any other prominent role. Similarly, Maulana Fazlu Rahman always preferred to chair the parliamentary committee on Kashmir to get funds for his political and personal activities.
In the legislative scheme, there are 28 subjects, that the PoJK assembly cannot legislate which include defence, foreign affairs etc. In another set of subjects that include water sharing and electricity, the PoJK assembly is authorized to legislate, but with the consultations of the Pakistan government. Now the 15th amendment stipulates that both the subjects will be in the domain of the unelected Kashmir Council instead of the legislative assembly. If there is a need to impose an emergency in the region, it will not be done with the stamp of the PoJK president, but by the seal and signature of the Prime Minister of Pakistan after getting recommendations from the Council. Pakistan government is also authorised to appoint high court and supreme court judges, chief election commission, auditor general, chief secretary, police chief etc. The Pakistan government will also control the finances of PoJK.
Before the 13th Amendment, the council was very powerful. Headed by the prime minister of Pakistan as chairperson, the council was created under POJK’s Interim Constitution Act, 1974, “to serve as a bridge” between the governments in Islamabad and Muzaffarabad. However, it was widely alleged that this institution had assumed the role of a parallel government [for POJK]. The 13th amendment had taken away its powers. In the earlier version before the 13th amendment, there was no provision for it having its secretariat. Now the 15th amendment also calls for a separate secretariat for the Council. That means there will be a government over the government.
Under the interim constitution of PoJK, the Kashmir Council was an executive authority. Kashmir Council had responsibility for the tax collected from all over the state. All the income tax commissioners of the state were subordinate to the council. and all the revenue went directly to the council of which 80% is held by the PoJK government and 20% by the Kashmir council.
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Historic 13th Amendment
After the historic 13th Amendment to the Azad Jammu and Kashmir Interim Constitution Act 1974 in the PoJK Legislative Assembly, all powers of the Kashmir Council were transferred to the PoJK Government, the Legislative Assembly, and the Prime Minister of Pakistan.
It was passed by a majority vote in the joint sitting of the Azad Jammu and Kashmir Legislative Assembly and the Kashmir Council. In the joint sitting, 49 members of the Legislative Assembly, six members of the Kashmir Council, and the Federal Minister for Kashmir Affairs cast one vote. On June 1, 2018, the PML-N government passed this historic legislation with a majority of 35 out of 56 members.
Many changes have been made through this historic legislation. Article 6 used to convene a joint sitting in case of a no-confidence motion against the President, but now a one-third majority of the Legislative Assembly, i.e. 17 members of the Assembly, can move a no-confidence motion. Under Article 14 (1), the number of Ministers in the Legislative Assembly is fixed at 30% of the total members of the Assembly. The next government will not be able to have more than 16 ministers in the cabinet under this law. Under Article 14-A, the Prime Minister of PoJK will now be able to appoint five Parliamentary Secretaries and two Special Assistants or Advisers.
According to Article 17 (3), in the absence of the Prime Minister of PoJK, the senior minister would have been the caretaker Prime Minister. The no-confidence motion against the Prime Minister of PoJK will be able to form 25% of the total members i.e. 13 members of the Assembly. Earlier, a member of the Assembly could have moved the motion.
In Article 50, the Election Commissioner will be replaced by the Election Commission which will consist of a total of three members including one Election Commissioner and two more members. The Prime Minister, after consulting the Leader of the Opposition in PoJK, will send his name to the President, who will give his formal approval.
The significance of the PoJK Council after the thirteen Amendments is toothless, but according to United Nations (UN) resolution, Kashmir Council cannot be abolished in Pakistan and Indian Kashmir.
That the Muzaffarabad government has always taken diktats from Rawalpindi is an open secret. Tourism is the major source of bread and butter for Kashmiris. However, the Pakistani military’s taking over tourist hotspots and making a tourism development authority has incensed the local people. They are jittery about Pakistan’s efforts to gobble POK into its federation. By making the high-level committee prepare a draft for the 15th amendment it is believed that Pakistan is making serious attempts to integrate PoJK into its federation. The result has been massive widespread protests and demonstrations at Rawalakot, Bagh, Poonch, Muzaffarabad and Neelam Valley among other districts in Pakistan-occupied Kashmir.
Divesting liberty and rights
Opposition and treasury benches PoJK Assembly have vowed to resist any attempt aimed at divesting the liberated territory and its people of rights that they had gained through a landmark constitutional amendment some four years ago.
The rare consensus was demonstrated by them during a debate on an adjournment motion by PML-N leader and former prime minister Raja Farooq Haider, wherein he took strong exception to a recent letter from the Ministry of Kashmir Affairs in which nomination of three representatives from the PoJK government was sought for a subcommittee constituted to “examine and finalise the proposed draft of 15th amendment”.
“The letter has disregarded facts and attempts to undermine the honour of the legislative assembly. It has not only hurt the Kashmiris who have always braved India’s machinations but also runs the risk of creating misgivings between the Kashmiris and the government of Pakistan,” he said.
Haider recalled that this house had “restored the constitutional, legal, financial and administrative authority of the POJK government following the spirit of parliamentary democracy and the aspirations of Kashmiris” through the 13th amendment in June 2018.
He made it clear that as long as POJK remained in existence with the existing special status, the struggle for freedom of occupied territory would continue with vigour.
Most of his views were endorsed not only by Sardar Hassan Ibrahim of Jammu Kashmir Peoples Party and Bazil Ali Naqvi of Pakistan Peoples Party from the opposition benches but also by Minister for Education Deevan Ali Chughtai, Minister for Local Government Khawaja Farooq Ahmed and some other treasury members. Additionally, it was also widely accused that the council has become a hub of unchecked corruption and political wheeling and dealing ahead of every election in PoJK, largely evading scrutiny of its spending by any investigating or accounting body.
The council that enjoyed administrative control of the POJK Department of Inland Revenue, AG Office and the Directorate General of Audit, would retain 20 per cent of the income tax generated from the POJK territory as well as some other funds to meet the administrative expenditures of its inflated secretariat in Islamabad and some other miscellaneous heads, and also to carry out development activities in Pakistan and PoJK.
However, as the administrative control of all three departments stood transferred to the PoJK government after the 13th amendment, the council was left with no source of income, which, according to sources, had greatly upset the beneficiaries of the previous system.
Interestingly, according to a recent statement, revenue collection had substantially increased in the wake of the 13th amendment, even though the Covid-19 pandemic and an earthquake in the southern districts had affected business activities in PoJK in 2019-20.
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Relationship between Pakistan and PoJK
The relationship between Pakistan and PoJK has remained fluid over. Nothing concrete was laid out in the initial days of Independence to formalize the relationship. The people of PoJK and their leadership, strived hard to get a proper constitution and governance setup. Consequently, several legal and constitutional arrangements were introduced during the nineteen sixties and seventies. All these Acts provided for a Presidential form of Government. The 1970 Act gave full legislative powers to the POJK Assembly, as well as executive powers to POJK Government which enabled it to take major decisions.
In 1974 Azad Jammu and Kashmir Interim Constitution Act 1974 was introduced which governs the affairs of POJK till today. The 1974 Act made drastic changes such as switching to a parliamentary form of government and establishing a new forum called the Council, which was entrusted with significant legislative and executive powers. The formation of the POJK Council was perhaps intended to streamline the relationship between Islamabad and Muzaffarabad. However, the overwhelming feeling in Azad Jammu and Kashmir is that the Council has been unable to achieve the objectives for which it was established. The extent of its authority and performance remains debatable. It is widely believed that the Council’s executive powers drastically hamper the elected government’s ability to take key decisions related to finance, public policy and socio-economic development.
Ever since PoJK came into being in 1947, the Government of Pakistan has always had a strong presence in the region. It controls defence, security, currency, and foreign relations. Key officers of the Government are nominated by the Government of Pakistan. These officers are the Chief Secretary, the Inspector General of Police, the Finance Secretary, the Home Secretary, the Health Secretary, the Accountant-General, and (usually) the Additional Chief Secretary (Development). They are known as “Lent Officers”, and are not under the POJK Government’s control in matters of discipline or posting. Thus, they are a strong check on the exercise of powers by the President and Cabinet of POJK. The system of “Lent Officers” is a permanent feature, and has never been changed.
Without going into details, it can be said that the Government at Muzaffarabad was appointed and removed by – and acted under the control of – the Government of Pakistan. Few political rights were available to the people of POJK under this system. This form of government was presidential; while the Government Act 1960 provided a semblance of democracy, it did not include self-rule for Kashmiris. Even this was soon discarded.
In 1970, POJK was given an elected Government and a Legislative Assembly directly elected by the people. POJK was given powers which, in practice, had not existed in the preceding two decades. The POJK Government Act 1970 was promulgated to serve as the constitution of POJK. It provided that there would be a President, who would be elected directly by Kashmiris living in POJK and Pakistan. It empowered the POJK Assembly to amend the said Act. All executive powers were vested in the President, who was to be aided by a small cabinet of three ministers. Corresponding legislative powers were vested in the Assembly except in respect of defence and security, currency and the external affairs of Azad Jammu and Kashmir.
PoJK Interim Constitution
In 1971, the Assembly amended the Act (without having to seek prior permission from the Government of Pakistan) and gave fundamental rights to the people and writ jurisdiction to the High Court. An Apex Court was also created, in which appeals could be filed against the High Court’s judgments. The power to appoint judges to the superior courts lay with the President of POJK. Importantly, the subjects of foreign trade and foreign aid were included in the legislative and executive authority of the POJK Government which immensely raised internal autonomy to a new height.
In 1974, the elected Legislative Assembly repealed the 1970 Act and enacted the POJK Interim Constitution Act 1974. , The Government of Pakistan, discharging its responsibilities and approved the repeal of the 1970 Act and its replacement by this new Act. The draft was prepared in the offices of the Government of Pakistan. The party in power, led by the elected POJK President and all other major parties, obliged. The AJ&K Assembly consequently passed the POJK Interim Constitution Act 1974. This introduced a parliamentary form of government, and the powers of the AJ&K Government were drastically reduced.
Under the new scheme, powers in respect of 52 subjects, as well as some other important powers related to the appointments of High and Supreme Courts judges were taken away from the POJK Government and vested in the POJK Council. This body consists of elected members from POJK and nominated members from the Parliament of Pakistan.
The subjects falling under the POJK Council’s remit include electricity & Hydro Power Generation, tourism, population planning, banking, insurance, stock exchange and futures markets, trading corporations, telecommunication, planning for economic coordination, highways, miners, oil and gas, development of industries, newspapers etc. The major sources of income of the POJK Government, i.e. income tax and some other taxes, were transferred to the POJK Council, giving it greater control over POJK’s finances. In addition, powers to appoint Judges of the Supreme Court and High Court, the Chief Election Commissioner, and the Auditor General were also taken away from POJK Government and now vested in the Chairman of POJK Council.
According to section 21 of the 1974 Act, whoever is the Prime Minister or Chief Executive of Pakistan shall be Chairman of the POJK Council. All the executive powers of the Council are vested in the Chairman. Thus executive powers in respect of the 52 subjects, as well as powers to fill high offices, virtually stand transferred to the Government of Pakistan. POJK is therefore left with little autonomy or status.
Inherent defects
Some defects are inherent in the scheme of the POJK Council. The executive authority in respect of 52 subjects included in the Third Schedule as well as appointment and removal of Judges of Superior Courts, Chief Election Commissioner, Auditor General, etc, are vested in the Chairman, and the members of the POJK Council (elected or nominated) have no role to play in these matters. The Chairman is not an elected official and is not answerable to any POJK elected body about POJK affairs (even if, as an elected Prime Minister of Pakistan, he is answerable to the Pakistani electorate).
As is obvious, the Chairman is not an elected representative of the people of POJK nor is he answerable to them. Thus, democracy has little place in this system. It is an anomaly that in the setup at Muzaffarabad, executive authority (or whatever is left of it) is vested in an elected cabinet, which is answerable to the Assembly and the people of POJK, while in the POJK Council the opposite is true. This is inconsistent with the norms of a democratic polity in the present era. The political rights of the people of POJK, therefore, stand denied.
In the POJK Council, representation is separately given to Pakistan and POJK. On one side are the Prime Minister/Chief Executive of Pakistan and six Ministers/MPs who are nominated by the Chairman. On the POJK side, six members are elected by the POJK Assembly. This body legislates for POJK and also levies taxes. The composition of the Council is not representative but is heavily tilted in favour of the Government of Pakistan. This is because the Chairman and the six Ministers /MPs all belong to one political party/group, and therefore are more capable of uniting within the Council, while the six elected members are from two or three different parties. In practice, the role of these elected members, in the presence of the high personages representing the Government of Pakistan, is insignificant. Thus the elected representatives have a very insignificant role in legislating on the subjects vested in the POJK Council and levying taxes.