Kashmir and the Alands

It is possible to find a solution to the Kashmir issue on the lines of the Agreement on the Aland Islands between Finland and Sweden, which was an international accord settling a territorial dispute on the basis of the status quo.

ANY settlement of the Kashmir dispute between India and Pakistan will necessarily involve a guaranteed special status for both halves of the State of Jammu and Kashmir, recorded in solemn compacts between the two states as also between them and the representatives respectively of Kashmir on both sides.

That conditions in Pakistan-Occupied Kashmir (POK) are far worse provides no consolation; for it is the wanton, deliberate wreckage of Article 370 of the Constitution of India by its tallest leader, Jawaharlal Nehru, that alienated the people of the State and rankles in their minds. It will continue to do so until fullest restitution is made. Article 370 was devised to provide guarantees for the autonomy of Kashmir. It was used shamelessly to destroy it. A Union Home Minister, G.L. Nanda, admitted as much using a picturesque metaphor. He assured Parliament on December 4, 1964, that Article 370 would be used to serve as "a tunnel (sic.) in the wall" in order to increase the Centre's powers over Kashmir.

That process was initiated by Prime Minister Nehru at two levels, political and legal. On November 27, 1963, he confidently told Parliament: "It [Article 370] has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated... . We feel that this process of gradual erosion of Article 370 is going on. Some fresh steps are being taken and in the next month or two they will be completed. We should allow it to go on. We do not want to take the initiative in this matter and completely put an end to Article 370. The initiative, we feel, should come from the Kashmir State government and the people. We shall gladly agree to that. The process is continuing... ." He knew, of course, that the State government had no right to accord that consent constitutionally; quite apart from the fact that it was installed through elections rigged by New Delhi.

Article 370 is truly unique. It is the only provision in India's Constitution which was negotiated. It recorded a solemn pact between the leaders of the Union of India and a State. Formal negotiations began at the residence of Deputy Prime Minister Vallabhbhai Patel in New Delhi on May 15, 1949. Nehru participated, as did the Prime Minister of Kashmir, Sheikh Abdullah. They ended five months later on October 17, 1949, when the Constituent Assembly of India adopted Article 370. Patel altered it unilaterally behind the Sheikh's back. His furious protests, once he learnt of it, were of no avail.

On July 24, 1952, came the famous Delhi Agreement between Nehru and Abdullah to extend some Union institutions to the State. Explaining its terms to the Constituent Assembly of Kashmir on August 11, 1952, in a carefully prepared statement, Sheikh Abdullah pointed out: "Whatever modifications, amendments or exceptions that may become necessary either to Article 370 or any other Article in the Constitution of India in their application to the State of Jammu and Kashmir are subject to the decisions of this sovereign body," the State's Constituent Assembly; not the State government.

He warned that "any suggestions of altering arbitrarily this basis of our relationship with India would not only constitute a breach of the spirit and letter of the Constitution, but it may invite serious consequences for a harmonious association of our State with India" (emphasis added, throughout). The hint of secession was thinly veiled. He had a point. As Prime Minister of India, P.V. Narasimha Rao, candidly admitted on June 12, 1996, "Abrogation of this Article [370] is just not possible, unless you want to part with the State".

Nehru used a different technique. He got Abdullah dismissed as Prime Minister of the State and had him imprisoned on August 9, 1953, on false charges. New Delhi installed stooges as Chief Minister of Kashmir who readily consented to the extension of the Union's powers to the State. The Constituent Assembly of Kashmir drafted the State's constitution, with Abdullah behind the bars, and dispersed on November 17, 1956. Lacking legitimacy after the Sheikh's arrest, it now ceased to exist. The Government of India used the consent of the State's Chief Executive to amend the Constitution of India in its application to Kashmir; a constitutional obscenity that existed nowhere else in the world. The President of India, Rajendra Prasad, warned Nehru against this, in vain.

Kashmir's governors were selected by the Union. One of them, B.K. Nehru, was honest and recorded in his memoirs: "From 1953 to 1975, Chief Ministers of that State had been nominees of Delhi. Their appointment to that post was legitimised by the holding of farcical and totally rigged elections." (Nice Guys Finish Second; pages 614-5). The only inaccuracy is the terminal year, 1975. The process continued well beyond 1975 with the exception of the 1977 elections to the State's Assembly.

For aught we know, had Nehru contented himself with reneging only on his promises to Pakistan and the United Nations on plebiscite in Kashmir he might have "got away" with it. But he broke also his promises to his friend Sheikh Abdullah and to the people of the State with consequences that are there for all to see.

Kashmiris have no reason now to trust New Delhi's word. Every Union institution failed them, not least the Supreme Court of India. In 1959, it ruled that the consent of Kashmir's Constituent Assembly was necessary for the extension of the Union's powers to the State. In 1968, it ruled to the contrary without citing the earlier ruling though Justice M. Hidayatullah was a member of both the benches (Frontline, September 29, 2000). It was the triumph of "nationalism" over judicial rectitude. As Justice Cardozo remarked, "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by" (The Nature of the Judicial Process; Yale; page168).

Article 370 can be retrieved from its wreckage only by a new compact between Delhi and Srinagar, which is itself an integral part of a pact between Delhi and Islamabad - something on the lines of the Agreement on the Aland islands between Finland and Sweden, which the Council of the League of Nations recorded and endorsed on June 27, 1921. This is the point at which the two cases of the Alands and Kashmir meet; an international accord which settles a territorial dispute on the basis of the status quo but with a vital qualification whereby the claimant acquires a juridical interest in the autonomy of the territory. This was the basis of the Irish settlement and the South Tyrol settlement ("Irish lessons for Kashmir", Frontline, April 11, 2003 and "The South Tyrol model", Frontline, December 17, 2004). Significantly Pakistan President Pervez Musharraf proposed "maximum self-governance" for Kashmir, in the context of an India-Pakistan settlement, in his speech to a South Asian Free Media Association (SAFMA) conference in Islamabad on May 20.

This writer's analysis concentrated on the external dimension ("The Alands model", Frontline, January 28, 2005). Here is a territory, overwhelmingly Swedish, which is under Finnish sovereignty. Sweden accepted the status quo once Finland agreed to international guarantees of its autonomy. It proceeded thereafter to widen, not restrict, the scope of that autonomy. Sweden is not a bit sorry that it agreed to the arrangement. Alanders are proud to be Swedish in culture and Finnish by nationality. One had read the cold texts of pertinent documents. A visit to Aland last month, during which this writer met a host of people, from the Governor downwards, brought home the vibrancy of this remarkable autonomy and the pride which the people take in providing the world an inspiring example of conflict-resolution in a manner acceptable to the two disputant States and the people of the disputed territory.

This became possible because Finland did not adopt any of the sophistry which the Indian establishment has deployed for nearly six decades - there is no dispute; it is a symptom of a wider malaise; India held free elections in Kashmir; there is no alienation, only terrorism; it is a domestic matter and a closed chapter, anyway. The chatter continues still, pitting India against the rest of the world, which does not accept any of the lies so assertively retailed by Nehru and his successors. On this issue as on the boundary with China, academia and most in the media follow the official line; TV channels compete with one another in this game and revel in chauvinism.

When the dispute with Sweden erupted after the First World War, Finland's Parliament enacted on May 6, 1920, an autonomy law for Aland in order to fortify its case before world opinion. Prime Minister Rafael Erich and two colleagues went to the Island's capital, Mariehamn, to persuade delegates of the communes to accept the law. They were snubbed. The people demanded a plebiscite. The League of Nations' Rapporteurs ruled in favour of Finland. But they said the alternative to secession was cast-iron guarantees of autonomy and suggested amendments to the law. They concerned property rights of "the natives", voting rights of immigrants and crucially "nomination of a Governor who has the entire confidence of the people". In 1965, Kashmir was deprived of its right to elect its own Governor. New Delhi has never trusted even its stooges in Srinagar.

The Accord of June 27, 1921, comprised seven points as Finland's "guarantee" for "the preservation of the language, culture" and local Swedish traditions of the people. It undertook to add six precise guarantees to its Autonomy Law - the Islands would not be obliged to support schools in which the language of instruction was not Swedish. Schools established by Finland would teach Swedish as well; the Finnish language would not be taught in State-aided primary schools except with the permission of the commune; curbs on transfer of land to persons not domiciled in the islands; Finnish immigrants would acquire voting rights only after five years of legal domicile; the Governor would be nominated by the President of Finland in agreement with the President of the Landsting (Assembly) of Aland. In the event of disagreement, the President would select a person from a panel of five nominated by the Landsting. The islands would be entitled to use for their needs 50 per cent of the revenues. Finally the Council of the League of Nations "shall watch over the application of these guarantees". Finland would forward to the Council, "with its observations", complaints from the Landsting regarding the application of the guarantee. The Council would consult the Permanent Court of International Justice at The Hague "in any case where the question is of a juridical nature" (International Treaties and Documents Concerning Aland Islands 1856-1992; page 23). (This writer is much indebted to Mrs. Lilian Norring-Ohman, Librarian of the Landsting Library for copies of important documents.)

Finland proceeded promptly to enact these guarantees as part of its domestic law in the Guarantee Act enacted on August 11, 1922, "to supplement and amend" the Law of 1920. It is a measure of Finland's good faith that the Law not only incorporated the guarantees almost verbatim, but added one more - the decisive veto: "This law shall be neither amended, clarified, or repealed, nor shall exceptions to the law be made except with the approval of the Aland Landsting and in accordance with the procedure prescribed for the enactment of constitutional legislation." In the same spirit, Finland enacted, successively, two more Autonomy Laws - on December 28, 1951, and on August 16, 1991, which came into force on January 1, 1993. If India had acted in the same spirit, history would have taken a different course.

The 1951 Law conformed to the Accord of 1920 and met the Alanders' concerns on all the important points that had arisen since - appointment of the Governor; citizenship and domicile, land rights, language, the flag; powers of the Assembly; veto on amendments, provision for arbitration on disputes with Helsinki. The 1991 Law, now in force, fortifies the law of 1951 and removes all ambiguity. Alanders rightly lay much store by the fact that it is they who select the Governor (Section 52). Helsinki appoints him formally. Aland uses its own flag and coat of arms. "State officials" (that is, of Finland) fly the national flag.

Section 28 lays down that no law could be enforced in Aland relating to "the principles governing the right of a private person to own real property or business property in Aland without the consent of the Legislative Assembly." Swedish shall be used in communications between Aland and State officials based on the Islands.

The Autonomy Act can be amended "only by consistent decisions of Parliament of Finland and the Legislative Assembly" of Aland. A unique body arbitrates on disputes between Helsinki and Mariehamn, "the Aland Delegation". It comprises two representatives each of both sides with the Governor as Chairman.

The 1991 Law gives Aland a voice on treaties "on matters of special importance" to it. No treaty can amend the Autonomy Law except with the consent of the Landsting. On October 16, 1994, Finland voted in a referendum to join the E.U. by a 51.9 per cent majority. Aland followed suit on November 20 by a 73.6 per cent majority. It had the option not to join the E.U. It joined it of its own accord. Amendments were made to the Autonomy Law on December 31, 1994, conferring on the Islands the right to "formulate the national position of Finland relating to the application of Common Policy of the European Union in Aland". Aland is entitled to participate in discussions in the E.U., which affect matters within its powers. It can nominate "one of the representatives of Finland in the Committee of the Regions of the European Community". But its representative does not figure among the 14 members of the European Parliament elected in Finland.

The division of powers between Helsinki and Mariehamn is neat with some play at the joints. Nuclear energy is a "state subject", that is, a national matter. But Aland has a right to veto construction of a nuclear power plant on its soil. "Public order and security" belong to Aland as do "the postal service and the right to broadcast by radio of cable in Aland". A law of 1996 provides for state radio and television.

The most important thing is that the Law enjoins consultation between the national and the Island's authorities and their joint participation in many matters (Section 30). The Government of Aland must be consulted by the Finnish government before issuing directions on matters that concern Aland (Section 33).

But there is a flip side to the E.U. membership, as Elizabeth Naucler, Director-General of the Aland government (head of administration), points out: "The Aland autonomy has expanded over its 80 years of existence, but through joining the European Union the Aland Islands surrendered competence to Brussels, as did Finland. The E.U. only knows states as full members, and has a way of compensating them for their loss of power and influence, i.e. they obtain seats in the European Parliament and they can appoint one Commissioner each. In the case of a jurisdiction such as the Aland Islands, not being an independent state, there is no such mechanism. The Aland Islands received just one seat in the Committee of Regions, a body consisting of a variety of local authorities, some with and some without legislative authority. The Committee exercises purely advisory powers... ."

In an interview to this writer on May 23, she called the process a "competence leakage"; leakage not only to the E.U. but also to Finland. It can be checked only by including an Aland representative among the 14 members of the European Parliament from Finland.

Aland sends an M.P. to the Finnish Parliament. He is Roger Jansson of the conservative Aland Centre party. Its seven members are in coalition government with the Social Democrats (6) and Moderates (4). The Liberals (7 seats) are in opposition. In an interview he made much of the fact that, for the first time, a pro-independence party, Aland's Future, has won seats in the 30-member Landsting; albeit only 2. He attributed this to growing unilingualism in Finland although its Constitution recognises Swedish as an official language along with Finnish. There are, however, no advocates of union with Sweden; for good reason. Autonomy will be lost in that union and Finland has respected autonomy all these 80 years.

Anna-Lena Sjolund, legal adviser to the Landsting, said that though culturally closer to Sweden, Alanders feel Finnish and value their identity within the Finnish nation. The issue now is development of the autonomy. Finnish parties have no presence on the Islands.

Roger Jannsson made an important point. He is respected as an M.P. and there is constant negotiation between Helsinki and Mariehamn; partly because it is enjoined by the Autonomy Law of 1991, but mostly by convention. His worry centres on unilingualism and Finland's powers over taxation.

Barbro Sundback, a social Democrat, is Deputy Speaker who is expected to become Speaker before long. She is also Chairperson of The Aland Islands Peace Institute. Its Director, Robert Jansson, is a committed scholar. The Institute is a remarkable body. Formed in 1981 it soon became one of the largest peace organisations in the Nordic area to the dismay of the Aland government. It was set up as a foundation in 1992.

It focuses on conflict management, peace research, minority rights, and autonomy issues. The Alands have been demilitarised by international Conventions since the 19th century. The Institute protests whenever there is the slightest infringement of these Conventions.

Barbro Sundback is not as worried as Roger Jannsson on unilingualism. There is, she said, no more than the normal political tension between the Centre and the periphery. The very fact that the Finnish continue to be no more than 5 per cent of the population suggests that autonomy is well protected.

"The Lotteries Case" illustrates how disputes are resolved. An Aland company floated lotteries on the Internet relying on the fact that the server was on the Islands. The Government of Finland contended that this was irrelevant and brought in legislation to ban it. But President Tarja Halonan, a fiercely independent woman, declined to accord her assent to the Bill and referred it to the Supreme Court for its advisory opinion. The court upheld Aland's legislative competence and ruled the Bill unconstitutional. But in a subsequent prosecution, it held, fairly enough, that the company's massive ad campaign in Finland and its stipulation concerning a bank account there made it amenable to Finnish jurisdiction to that extent. Bar Parliament's Constitution committee, everyone was satisfied at this pre-eminently fair outcome. The Supreme Court of Finland is headed by a highly respected jurist who is well-known in Europe, its president, Leif Sevon. A unified judiciary links the entire country.

The Governor of Aland, Peter Lindback, gave a balanced presentation. The islands wield original, not delegated, power. The present procedure for appointment of the Governor satisfies everyone. He said categorically: "All the powers necessary to develop the Alanders - their culture, society and to promote their well being are vested in them." They wield power enough for economic development and social advancement. In short, "to set up a welfare state".

Apparently, taxation and "competence leakage" to Helsinki as well as to Brussels are two sticking points. But the Governor shrewdly remarked, "If you have a lot, you still ask for more."

Everyone emphasised the centrality of the status of the Governor, who is formally appointed by the President of Finland but is chosen by the people of the territory, thus enjoying the confidence of both.

It is not only possible but imperative to devise such a guaranteed autonomy for both parts of Kashmir, including their respective regions, if a settlement of the dispute between India and Pakistan is to mean anything to those who are most affected - the people of the State of Jammu and Kashmir, in all its regions and all its religious and other communities.