The changeover of a local government in Jammu and Kashmir is an astronomical challenge and whatever shape it takes will need to be an alert to those responsibilities of governance that have built-in caveats not only in law, political environment but also the special needs of the territory and populations of the beleaguered state. Peoples Democratic Party in a statecraft may be tempted to incorporate the help of mavericks returned in elections or larger parties looking for a slot in governance. This cobbling process is liable to leave frayed edges on the pallet housing a mixed bag or collage of figure heads. Kashmir is recovering from a devastating flood and blistering long standing uprising. The new government has an obligation to come as near as possible to governance that makes life better for people. Methods that make that livable environment are not easy or a repeat of old wine in new bottles or routine innovations from entrenched bureaucracy besmirched by purgatory and officialdom are not sufficient.
In the event the new government fails to deliver a continuous, effective and authentic administration, then in law they are ultra vires and people have a legal standing to demand an end of that government. That eventuality this time round will exhort insurrection and stamp an end to that regime. This decree is founded on the international law established from Island of Palmas case law and has been adopted as a statute of common law. This inter-temporal law is a concept in the field of legal theory and it deals with the complications caused by alleged abuse or violation of collective or individual rights in the historical past, in a territory where the legal system has undergone significant changes, and a redress along the lines of the current legal regime is virtually impossible. This narrative fits in the legal history of governance in Kashmir. The law is defined as the branch of regulation which governs the usage of treaties, codifications and legal acts to the cases which occurred before their creation or entry into force. The 1952 , 1957 and Indian constitutional A-370 accords superimposed over 1947 instrument and its auxiliary collateral document that contains self-determination qualification are the inter-temporal instruments that the new government has to work in compliance.
People expect the future rulers of Kashmir to bring all legal and truthful devices into operation while delivering governance. This concept in relation to the use of force to assert an agenda is guided by the Bloomberg law that is rooted in the Palmas Arbitration case titled Netherlands v USA, (1928 ) that has to be born in mind in Kashmir by the PDP policy makers. It may be pertinent to give a fact summary of this case law. Spain ceded Philippines to USA in a treaty (Treaty of Paris in 1898) and discovered that the flag of Netherlands was still flying in Island of Palmas a part of Philippines. The dispute was dealt by ICJ. Both the United States and Netherlands laid claim to the ownership of the Island. The arbitrators ruled that Netherlands continue their sovereignty and the synopsis of Rule of Law was that ‘The title that is inchoate cannot prevail over a definite title found on the continuous and peaceful display of sovereignty’. This law applies to Kashmir and the new regime has to abide by it to bring a legal governance to rule and not be seen as anarchical. In reaffirmation of the law the rules for acquisition of territory and sit in high offices like the Ministers in Kashmir were concisely summarized by the tribunal in 1998 case law of Eritrea/Yemen Arbitration Award stating the international law of attribution or governance of a state that requires that there be an intentional display of power and authority over the state by the exercise of jurisdiction and state functions, on an effective, continuous and peaceful basis. Effective governance needs to be understood. It is not a brazen show of authority by escorted motorcades and personnel security or access to lucrative contracts and property. A plan project thought through is carried to its legitimate end. People come first.
In practice it so happens in J&K state sovereignty is claimed by India and the state in its inchoate status is ruled by a proxy delegated regime. In rising above that standing, the PDP-led government will require to make amends for the deficiencies of preceding regimes, reconstituting some kind of normalcy and upgrading of infrastructure, environment, water and power supply, trade and economy. There are huge fissures and visible destruction of traffic flow on roads and the central sourced services like communications, internet, telephone and energy production. Unemployment is universal menace that renders an ocean of young educated and unskillful people distraught and unwaged. Industry is non-existent and government jobs offered remain in the domain of low waged SPO’s or regular police. Economic protection and security of life is a natural basic requirement that governs all tenets of effective control of territory for the total tenure of governance. The big question will remain. The state title including prescription, estoppel abandonment of title by the previous sovereign, acquiescence and tacit agreement evidenced by conduct has to be updated.
PDP has been in power before and have a starting line from where they finished the first time. They will have the wisdom to create political associations on the basis of merit and give people an exemplary governance that will cover all antecedent scheduling to clean up the State and bring modern living in the domain of ordinary people. It may be that will need drastic measures, unpopular with quislings and political opportunist that crowd visiting rooms.
(Kashmir born Dr Abdul Majid Siraj is a retired consultant surgeon in the UK and has a degree in social sciences.)
