V. Restrictions on the Right to Participate in Elections and Related Abuses
No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against or take part in activities prejudicial or detrimental to the ideology of the States accession to Pakistan.
Part 7(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974
Successive Pakistani governments have asserted that Kashmirs political future must be determined in accordance with the wishes of its people. Yet its own constitutional provisions preclude all political choices to Kashmiris except to support its accession to Pakistan. Shamshad Hussain Khan, an Azad Kashmir Supreme Court lawyer, summed up the situation arising from the constitutional framework:
The document referred to as the constitution of Azad Kashmir is a sham. Its a biased document. These laws and practices are in contradiction to the pledges made by the government to the international community and the U.N. On the one hand, the Pakistan government says that U.N. Security Council resolutions must apply. On the other, the constitution prohibits it. We have been and are being persecutedthrough arbitrary arrests, torture, curbs on movement, and by being barred from seeking higher education or employmentfor simply demanding a third or even a second option for Kashmir. The stance and the legislation are simply irreconcilable.59
As noted in Chapter III, the constitution of Azad Kashmir was drafted by the Pakistani government, as opposed to being framed by the elected representatives of Azad Kashmir themselves. It spells out fundamental rights, but inserts a crucial caveat: No person or political party in Azad Jammu and Kashmir shall be permitted to propagate against, or take part in activities prejudicial or detrimental to, the ideology of the states accession to Pakistan.60 Thus, the constitution poses major impediments towards genuine democracy as it bars all those parties and individuals from participating in the political process that do not support the idea of Kashmirs accession to Pakistan.
To guard against the possibility of circumventing the constitutional bar, the Azad Kashmir electoral law expands on the theme. A person shall stand disqualified for running for elective office if [h]e is propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan, the ideology of the States accession to Pakistan or the sovereignty, integrity of Pakistan or security of Azad Jammu and Kashmir or Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the Judiciary of Azad Jammu and Kashmir or Pakistan, or who defames or brings into ridicule the Judiciary of Azad Jammu and Kashmir or Pakistan, or the Armed Forces of Pakistan.61
As a result, political groups such as the JKLF and the APNA that do not support Kashmirs accession to Pakistan are barred from contesting elections. When their members have attempted to field candidates, as they did in the 2001 and 2006 elections to the AJK Legislative Assembly, the authorities have sought to suppress them, including in 2001 through the use of arbitrary arrest often accompanied by ill-treatment.62
The APNA and JKLF decided to attempt to participate in the 2001 elections and fielded thirty-two candidates, each of whom refused to support accession to Pakistan. Sardar Mohammad Sagheer Khan, secretary general of the JKLF (Amanullah Khan Group), who has been on Pakistans exit control list since 1992, described his experience to Human Rights Watch:
During the scrutiny [in 2001], I asked the returning officer why my basic rights were being violated. There were twenty to thirty policemen in the returning officers chambers. The police immediately arrested me and hundreds of our workers outside were tear gassed and baton charged. The ISI had seen that we had public support during the nomination filing process earlier, as I had been accompanied by over a thousand supporters. I was arrested, beaten with batonsI received head injuries, I was bleeding and my left arm was dislocated during the beating.
I was then thrown into the police van alone and half an hour later, I was taken to Rawalakot police station where I was beaten with batons, abused and humiliated. My other colleagues joined me about thirty-five to forty minutes later.
Three nights later, we were shifted to Kotli Jail. We were classed as common criminals in jail and kept alongside criminals. We were not criminals and we were kept with them purely to humiliate us. A mentally unbalanced person was also placed in my cell along with a mass murderer. But we managed to maintain the peace despite the best attempts of the police to create a violent situation. The problem was that we were not allowed any family visits. On the direct intervention of influential friends, one or two people were allowed a brief meeting with relatives.
When we were released, we were met by crowds all over. After that we tried to launch a mass contact movement but Rawalakot was placed under unofficial curfew and our meetings were not allowed. The district Poonch and district Kotli administrations were placed on high alert and kept under tight surveillance to prevent us from mobilizing. In the run up to the elections, at least eight hundred people were arrested across Azad Jammu and Kashmir. 63
Sardar Naseem Iqbal is an Azad Kashmir Supreme Court lawyer and former secretary general of APNA. His party allegiance lies with the JKLF (Rauf Kashmiri Group). Iqbal told Human Rights Watch that APNA decided in May 2001 to file nominations from across Azad Kashmir and for refugee seats. He was a candidate in Poonch. His and his colleagues nomination papers were promptly rejected for being in violation of the Azad Kashmir election laws and constitution. Sardar Naseem told Human Rights Watch what followed the rejection of his nomination papers:
The nomination was rejected on June 7. The same day, we were called for discussions by the Poonch deputy commissioner, Dr. Mehmoodul Hassan, at his office in Rawalakot. [Five colleagues] and I went. When we got there, a major from the ISI was present. I dont remember his name. He said, Just wait outside my office. When we emerged from the office, we were surrounded by police. Around one hundred police officers. Our supporters were demonstrating in other parts of the city and the police was spread all over. The deputy commissioner ordered our arrest. As soon as he said this, the police started baton charging us. We did not resist arrest and raised our hands, but they continued to beat us, regardless. They threw us in the nehr [stream]. [Name withheld] sustained more serious injuries than the others.
They took us to Rawalakot police station. One of our colleagues and fellow candidates from JKLF (Amanullah Khan Group) had already been arrested and taken there. We were locked up for three days and not even presented before a judicial magistrate. No one was allowed to meet us for three days. We were cut off from the outside world. In the station the police were pressured by the ISI. The police know us. I am a lawyerthey may have arrested us, but they would not have held us incommunicado without ISI pressure.
During the time we were in the police station, our colleagues who demonstrated outside the police station for our release would also be arrested. We were then shifted to District Kotli Jail four hours away. This was on June 11 at 1 a.m. By the time we were moved to the jail, around twenty-five of us had been arrested. We were kept in jail for one month. For one month there was no paperwork. Others were released a month later, but six to eight of us remained in jail and were served with extension of remand under the Maintenance of Public Order act for another fifteen days. Once the election was over on July 5, the case was withdrawn but only after they told us to deposit bail bonds and we refused.
I dont understand this. Even under their own laws, we may not be able to contest elections. But we surely are allowed to vote. But clearly, the government did not allow us to be part of the political process in any way. Is this not discriminatory? Is this not a gross violation of our rights? Do we have any rights at all?64
Arif Shahid, current chairman of the APNA and JKLF secretary general, told Human Rights Watch,
Two days before the nominations closed, the ISI began its surveillance of us. My young nephews returning from school on June 4 were asked, Where does your uncle sleep? I know the ISI was wanting to arrest or kidnap me, so I stayed away from home.
I was arrested on June 7 when the Deputy Commissioner Poonch Dr. Mehmoodul Hassan, lured us to his office in Rawalakot. Naseem Iqbal has described what happened. We did not resist arrest but that did not prevent them from baton charging us and beating us up. That should indicate the attitude of the authorities. They arrested me though I was not even a candidate in the election. I was just the secretary general of the Alliance. The details are irrelevant. There was no reason to arrest me. This is commonplace. Mohammad Abid, my apolitical relative, brought me a change of clothes to the police station. He was also arrested.65
Zahid Habib Sheikh, a prospective JKLF candidate, told Human Rights Watch,
I filed my nomination papers on June 1, 2001. On June 7, the papers were rejected because I had not signed the declaration supporting accession to Pakistan. The matter could have ended there. But the army was tense about our mobilizing public opinion against the election and engaging in political activity. On July 4, one day prior to the July 5 elections, we were all arrested. All JKLF candidates across Azad Kashmir and senior office bearers were arrested because we announced a boycott of the election.
On July 4 at 2:30 a.m. the local authorities headed by SHO [Station House Officer] Zahid Mirza entered my house. They jumped over the walls and into my house. They said, We will tell you the reason for your arrest at the police station. About fifty police officers from the City Police Station Muzaffarabad were present.
I was taken to the police station and taken to the lockup and handcuffed. We are political activists but we were put in the same cells as common criminals. Once there, I discovered that there were seven other JKLF members present. In the morning, we were told by the police that the arrests had been made on orders of the GOC [corps commander in] Murree and the question of bail did not arise!
They said no FIR [First Information Report] would be filed and no arrest warrants were needed as the general had ordered the arrests. In the morning we were shifted to Muzaffarabad Central Jail along with criminals. We were released five days later. Even now, we are constantly under surveillance. They keep asking my neighbors what I am up to. Why? I am not a criminal.66
Ashiq Gillani, another prospective JKLF candidate, told Human Rights Watch,
On July 3, 2001, at 4 a.m., police vans and one ISI car came to my house. The police were in uniforms and the ISI in plainclothes. They surrounded the house and knocked on the door. There were about forty personnel in all. My mother was saying her fajr [early morning] prayers behind the door. She opened the door, and they pushed her, causing her to fall and injure her hand. Then they asked for me. She said I was present and asked them to wait a minute or so in order for the women of the house to remove themselves, but they ignored her. My mother came and woke me up, and the police came and dragged me out, hitting me with rifle butts and kicking me. They bundled me barefoot and clad in only my nightclothes into the van. They were abusing and swearing at me. They took me to City Thana [police station] in Muzaffarabad. They locked me up with various dangerous criminals. They told me that this was an order from their superiors. I was there for four or five hours. Then, I was handcuffed along with others and taken to Muzaffarabad Jail where I was locked up. I was released a month later without charge.67
Mir Afzal Suleri, a Kashmiri nationalist, also described his experience in the run-up to the 2001 election:
They raided my house but I was not present. I was arrested on July 4 from Upper Adda [Main Chowk] of Muzaffarabad. Police and army intelligence arrested me because I was leading fifty to a hundred protestors against the crackdown on the JKLF and other nationalist parties. Our protest was raided by the police and baton charged. I was arrested and taken to the City Thana, from where I was taken to the Central Jail. I was also released after five days. They arrested me the first time for chalking pro-independence slogans on walls in 1999. It is really strange. And they keep re-arresting me under the wall-chalking charge whenever it suits them. But of course, the jihadi groups, Lashkar-e-Toiba, Jaish and others can write whatever they want. No one ever arrests them. They [Pakistan] say they are our friends and India is our enemy. I agree India is our enemy but with friends like these who needs enemies?68
About sixty pro-independence candidates belonging to the Jammu Kashmir Liberation Front, the All Parties Nationalist Alliance and some smaller groups filed nomination papers for the July 11, 2006 elections. All were barred from the contest by election authorities.
The elections that ensued resulted in the Islamabad backed-Muslim Conference maintaining power with an absolute majority of thirty-one members in a house of forty-nine, despite the incumbents and their backers in Islamabad having suffered tremendous political damage due to their mishandling of the post-earthquake situation. The elections were widely regarded as rigged to favor Islamabad-backed candidates: this view was shared by all opposition political parties including the pro-Pakistan opposition, and by independent observers and analysts. Demanding an impartial probe into alleged rigging and manipulation in these elections, former Pakistan-backed AJK Prime Minister Sultan Mehmood Chaudhry said,
Despite rigging, manipulation, use of force and violence and a carrot and stick policy, the ruling party secured far fewer votes than the Opposition parties who take the identical stance that these were bogus elections
We demand the establishment of a powerful investigation authority that should comprise human rights activists, lawyers, journalists and international observers.69
Pakistans national opposition echoed these claims. Chief of the Islamist Jamaat-e-Islami, Qazi Hussain Ahmad, argued that the results of the rigged election in Azad Kashmir highlighted what was to come in the general elections to be held under President Pervez Musharraf next year .70
Pakistans highly regarded daily newspaper Dawn summed up the 2006 elections as follows:
To no ones surprise, the ruling Muslim Conference (MC) has emerged as the largest party in Tuesdays elections in Azad Kashmir. Given the widespread charges of poll rigging and the fact that the party is known to enjoy the favours of the establishment in Islamabad, the results would have been easily predicted
Even more questionable was Islamabads long established practice of disqualifying parties two of them this time which do not uphold Kashmirs accession to Pakistan. This approach has been challenged by international human rights groups.
Whatever might be said about Azad Kashmirs politics, it is no secret that it is closely intertwined with the political ups and downs in Islamabad. It is no coincidence that the party in power in Muzaffarabad enjoys the blessings of the rulers in Islamabad
In the present situation, the challenge for Islamabad is to ensure an effective and stable coalition government in Azad Kashmir while enacting the charade of an independent political process there. How much it helps the intra-Kashmir peace process is not very clear.71
Rigging of elections in Azad Kashmir generally follows the same pattern as in Pakistan. It generally occurs in two stages. Pre-poll rigging involves ensuringthrough transfers and postingsthat bureaucrats, election administrators and law enforcement officers sympathetic to government-backed parties are in place in positions of authority well before a campaign gets underway. These officials are expected to put hurdles in the way of opposition parties campaigning, such as denying them permission to hold rallies. On election day, these officials often instruct transport workers not to take opposition supporters to polling stations. Often polling stations in opposition strongholds are moved at the last minute and voter lists disappear, leaving voters unable to cast ballots. More traditional forms of poll rigging such as ballot-stuffing also take place when polling closes and ballots are taken away by government officials for counting.
All of the above constituted some of the allegations leveled about the conduct of the 2006 Azad Kashmir Legislative Assembly elections. Most crucially, through the above mechanisms, the government of Pakistan ensures that the twelve refugee seats that are voted for in Pakistani cities invariably are held by government-backed candidates. While it is often difficult to prove allegations of large-scale rigging, to date no party in Azad Kashmir that does not enjoy the backing of Islamabad has won an election, regardless of its apparent popularity or the evident unpopularity of the government-backed party that emerges as the winner.
Though the July 2006 elections were unrepresentative because of the ban on those refusing to support accession to Pakistan and there were widespread claims of poll rigging, physical abuses against candidates and their supporters were not in evidence. While there were threats of violence, which had to be taken seriously by recipients, there were few allegations of unlawful arrests, mistreatment and torture that have been previously used as part of government efforts to ensure election results to its liking. The post-earthquake international presence in Azad Kashmir acted as a deterrent to the use of violence usually employed by Pakistani authorities in dealing with the opposition. Amanullah Khan, leader of a faction of the JKLF that attempted to field over thirty candidates in the election, explained to Human Rights Watch,
Though we were still banned from taking part in the election, this time we have not been beaten and illegally detained. We were [candidates] threatened with beatings and arrests by the local administration but when the time came, the threats did not materialize into action. The reasons are quite evident. Post-earthquake Kashmir is less repressive than before simply because the organizational wherewithal for traditional levels of repression is still not in place. Also there are appearances to be maintained in front of donors and international actors engaged in relief and reconstruction. The fear is that the international community will leave and Pakistan will completely re-erect its control mechanisms. And Azad Kashmir will return to worse from bad. This is bad but what happened to us in 2001 was much worse and unless the world decides to remain engaged, we may return to the harassment, beatings and torture of the past. We were let off this time because they knew the world was watching. But what if the world moves on?72
The Universal Declaration of Human Rights proclaims that everyone has the right to take part in the government of his country, directly or through freely chosen representatives, and has the right to equal access to public service.73 In its General Comment on participation in public affairs and the right to vote, the Human Rights Committee stated,
Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation [emphasis added].74