Hurriyat's Moving Goals

Nazir explains how the right may be there in principle but it has been sentenced to death in practice

(Dr. Syed Nazir Gilani, 59, is a jurist. He was born in Naranthal (Jalshree) village near Baramulla and was a student at the Government Degree College in Baramulla. Subsequently, he studied English Literature and Politics at the University of Kashmir, Law at the Sindh Muslim Law College in the Karachi-Pakistan, Islamic Law at the University of London School of Oriental and African Studies (SOAS), International Law at the Queen Mary University London, Victimology at Inter-University Centre Dubrovnik - former Yugoslavia, Peace Keeping/Humanitarian Operations & Election Monitoring from Scuola Superiore di Studi Universitari e di Perfezionamento S. Anna - Pisa Italy, and has a Ph.D. in the Jurisprudence of UN Resolutions and Kashmir Case. He successfully argued a constitutional writ petition in the High Court of Azad Kashmir from December 1992 to April 1999 on the question of self determination and duties of AJK Government. As a lead human rights advocate he has faced a sentence of 5 years imprisonment and 15 lashes and a death sentence during the Martial Law of General Zia in Pakistan. Dr. Gilani has introduced awareness around the title of the people of Jammu and Kashmir to a Rights Movement since 1877 and the respective sovereign claims of India and Pakistan since 1948.)

Death of Self Determination

Kashmiri leadership, in particular, Muslim leadership in the Valley, seem to have over done itself on the question of Self-Determination. The Right may be there in principle but it has been sentenced to death in practice. We all seem to be busy fooling each other and the public at large. If a majority of Kashmiri leaders represented in Hurriyat at one time, or having opted out of it at another, and others who have remained outside the fold, had won the elections in 1987, it would have been a way forward in politics under an oath.

The history of political wrangling may have been different, at least on the count that Right of Self Determination would not have died with the death of a generation. Keeping in view the Independence struggle of Quebec, we know inferiority of number caused by the loss of life in Kashmir and given the representative character of politics, may have sealed the success of Self Determination as a practical phenomenon for some time. Right of Self Determination may be alive in principle but is dead in practice for a serious loss of numbers.

On October 30, 1995, Quebec voted 51 to 49 percent to remain part of Canada –a switch of 25,000 votes would have led to a vote for separation. Some supporters of separation blamed non-French speaking minorities for voting to remain part of Canada - the 82 percent of Quebec's seven million residents who speak French mostly supported separation, while the 18 percent who do not speak French mostly opposed it. The Cree of Northern Quebec opposed the separation and declared that declaration of independence by Quebec would violate the Crees' principles of human rights, democracy and consent. They said that Parti Quebecois (PQ) and the Quebec National Assembly do not have the right to unilaterally proclaim that the Quebec people will exercise their vote on their collective future. They argued that the PQ cannot force them or their native neighbours to be part of the "Quebec people" for purposes of self-determination of secession.

The Cree believed they had a right to stay in Canada. They maintained that their territory will not be taken over or given to an independent Quebec without their consent; if Quebec leaves, the Cree wish to remain part of Canada. This action would show that Quebec uses unfair and undemocratic methods to carry out its wishes. The forcible inclusion of the Cree in an independent Quebec would go against international, Canadian, Aboriginal law and practice. The Innuit declared that they will use their legal rights to remain in Canada in the event of a Quebec separation.

Kashmir situation is no different than Quebec. Hurriyat has failed to keep to its constitutional programme of July 1993 which accommodated among many other things, the three opinions, namely pro Pakistan, pro India and pro Independence, only if pursued in accordance with UN resolutions. It would assure and retain the trust of minorities if followed in accordance with UN mechanism on Kashmir. It would put an end to the distribution of Kashmiri people and end an unfair control of Kashmiri people under three administrations.

Hurriyat does not qualify as a representative political leadership because in view of the plural complex of Kashmir UN has set a very clear test for representation. Hurriyat did not work to reduce this infirmity. Its political rerecord since 1993 away and outside the constitution too has made its representative ability for the cause of Self Determination weak and suspect.

The other more serious and real difficulty is the role of Kashmiri Pandit, Kashmiri Sikh, Kashmiri Dogra, Christian, Jew and many other faiths in the dispensation of self determination. They have the same case as Cree had in Quebec question of self determination or separation from Canada.

A switch of 25,000 votes would have led to a successful vote for separation of Quebec from Canada. The deficit killed the vote for separation. Our leaders are putting the death toll to over 70,000 (seventy thousand) and we see that the loss of life continues on the streets of Kashmir unabated. Even if, it is a militant, he is a State Subject and his death causes a deficit in the number to be called for in any future referendum.

Our leaders unlike mainstream politicians are under no oath. They seem having it all under no holds barred. A main stream politician elected to the assembly or the parliament could be taken to a court for any breach of oath or promise made during the election. The separatist leaders are born free and do not have any cause to answer under any oath. It is no disrespect to sensitise the call of common conscience and point to the constituency of information, that among the living youth a large number is educated unemployable, uneducated unemployable and an army is preparing to add to this waste. Without any hope, visible bench mark and programme not for the process but for the quality of life, Kashmiri youth has crossed once rigorously defended psychological barrier and have sought job opportunities in Indian army.

Do we need to label them traitors and cause a further deficit to our debilitated number for self determination or argue out that the right does not become defunct by joining the Indian army. We have narrowed down the constituency of our number and killed many ‘traitors’ and ‘non Tehreeki ‘people. The few moralists left behind have neither the ability to execute a political agenda nor the number to win the case of Self Determination. They may have accrued a criminal liability for some target killings and for failing in their duty to protect life.

How does it help to ask the people to boycott Parliament elections when the horses sit mid-stream after taking full part in Assembly elections? Even if people do not vote in full strength, there would a winner for the Parliament. He or she will be visible and if detached from people, would cause a serious disadvantage to the interests of our people, their children and to all spheres of life. It is a well known fact that elections or no elections, our leaders are always heard in India and Pakistan. They are well looked after and their children and in some cases their wives are favoured in utter disregard to equity and the moral ability required in representing the suffering and poorly people of Valley.

It is time to look beyond boycott and remain on the side of the people even after the elections are over. Life does not stop at a boycott and Self Determination does not face a threat from an election. Life stretches beyond self determination. A Kashmiri has to live and enjoy a protection of ‘life’, ‘honour’ and ‘dignity’. He has to have means to reconcile a day with a following night. The calendar would not stand still for him and his children.

The case is still at the UN, although in a degraded form, and India as a member nation of UN has a burden of responsibility under the Charter and UNCIP resolutions. Hurriyat leaders too should decide to be themselves and on the side of Self Determination and ask the Government of Pakistan to explain its failure in not raising Kashmir at the UN Security Council from November 1965 to August 1996, for a period of 30 years and 9 months. Hurriyat needs to explain its silence on the degradation of Kashmir case from a regular agenda item to becoming the subject of a risky annual ‘reminder’ rule. They have an explanation to offer for switching over from UNCIP resolutions and their own constitution to Musharraf’s four point formula.