A Blow to Democracy: Azad Jammu and Kashmir High Court’s Decision Undermines Rights and Self-Determination

By Sardar Aftab Khan

The recent decision by the Azad Jammu and Kashmir (AJK) High Court, upholding the Peaceful Assembly and Public Order Ordinance, 2024, is a significant threat to democracy and a setback for fundamental freedoms, democratic governance, and the Kashmiri people’s long-standing right to self-determination. By dismissing international human rights standards as “non-binding,” the Court has eroded constitutionally guaranteed rights and undermined Pakistan’s obligations under the International Covenant on Civil and Political Rights (ICCPR).

The ordinance, validated by the High Court, imposes severe restrictions on freedoms of assembly, speech, and association, further curtailing Kashmiri citizens’ ability to advocate for their democratic rights and future. These developments are a stark reminder of how legislative and judicial actions can jeopardise the principles of justice and human dignity.

The Threat to Fundamental Rights

The Peaceful Assembly and Public Order Ordinance, 2024 introduces draconian controls on public assemblies, requiring citizens to obtain prior approval from authorities while granting District Magistrates sweeping powers to ban gatherings on ambiguous grounds like “credible risks” or “disruption of daily life.” Participation in “unlawful” assemblies can lead to imprisonment of up to three years, with no judicial safeguards to challenge such decisions.

The ordinance fundamentally contradicts the AJK Interim-Constitution, which guarantees:

Freedom of Assembly (Article 6): The right to peacefully assemble, subject only to narrowly defined restrictions.

Freedom of Association (Article 7): The right to form associations, with limited constraints for public order.

Freedom of Speech (Article 9): The right to express opinions freely, subject to reasonable limitations.

These rights are critical not only for Kashmiri citizens to engage in democratic processes but also for advancing their aspirations for self-determination—a principle enshrined in the United Nations Commission for India and Pakistan (UNCIP) Resolutions and the UN Charter.

Impact on the Right to Self-Determination

The Preamble of the AJK Interim-Constitution explicitly ties the governance of Azad Jammu and Kashmir to the UNCIP Resolutions and the UN Charter, which affirm the Kashmiri people’s right to self-determination through a free and fair plebiscite. However, the ordinance validated by the High Court:

1. Suppresses democratic participation by criminalising peaceful assembly, which is essential for voicing political and social demands.
2. Undermines the conditions necessary for a free and fair plebiscite, as envisioned by the UNCIP Resolutions, by curtailing fundamental freedoms.
3. Contradicts the Preamble’s commitment to fostering democratic governance and promoting self-determination under international standards.

The High Court’s dismissal of international human rights standards as “non-binding” disregards the foundational principles of AJK’s constitutional framework and its alignment with global norms.

Pakistan’s Commitments Under ICCPR

 As AJK is under Pakistan’s administrative control, Pakistan is obligated to uphold international human rights standards, including those outlined in the ICCPR, to which Pakistan is a party. Key obligations include:

Freedom of Assembly and Association (Articles 21 and 22 of ICCPR): Protecting the right to peaceful assembly and association.

Freedom of Expression (Article 19 of ICCPR): Ensuring individuals can freely express opinions without fear of reprisal.

Prohibition of Arbitrary Restrictions: General Comment No. 31 of the UN Human Rights Committee clarifies that ICCPR obligations apply to all territories under a state’s jurisdiction, including AJK.

By enforcing an ordinance that violates these rights, the AJK government risks Pakistan’s credibility on the international stage by violating and undermining its commitments under the ICCPR.

Democratic Governance in Azad Jammu and Kashmir is at Risk

The ordinance not only erodes fundamental freedoms but also:

1-Centralizes Power: Granting unchecked authority to District Magistrates to ban assemblies or impose penalties without judicial oversight threatens the rule of law and encourages arbitrary governance.

1. Weakens Democratic Processes: The right to peaceful protest and free speech are critical for holding governments accountable. By curbing these rights, the ordinance silences dissent and weakens the foundations of democracy in AJK.

These measures do not align with AJK’s constitutional commitment to better governance and socio-economic development, as emphasised in its Preamble. Instead, they reflect a troubling trend of restricting democratic participation.

Way forward – What Must Be Done

 Supreme Court Review

The Supreme Court of Azad Jammu and Kashmir must correct the High Court’s misinterpretation by:

• Recognising the binding nature of international standards, as implied in the Preamble’s reference to the UN Charter and UNCIP resolutions.
• Reaffirming that AJK’s governance must align with the democratic and human rights principles necessary for fulfilling the plebiscite process.

Legislative Action

The AJK Legislative Assembly should:

• Introduce amendments to explicitly incorporate international human rights standards into domestic law.
• Ensure that laws, including the Peaceful Assembly and Public Order Ordinance, align with constitutional guarantees and UN obligations.

Advocacy and Awareness

Kashmiri Political Parties, diaspora groups, human rights organizations, and policymakers must:

• Raise awareness of the ordinance’s contradictions with the Preamble and international obligations.
• Advocate for international oversight to ensure AJK’s governance respects its commitments to democratic freedoms.

United Nations Human Rights Commission Oversight: The United Nations and other global human rights organisations must monitor the worsening civil and political rights situation in AJK to ensure that its governance aligns with international human rights norms.

A Call to Protect Democratic Freedoms

The Kashmiri people’s right to self-determination and democratic governance is not just a regional issue but a global concern tied to principles of justice, equality, and human dignity. The AJK High Court’s decision and the ordinance it validated pose a significant threat to these ideals, undermining constitutional guarantees and international commitments.

Pakistan and AJK must ensure that laws and judicial interpretations uphold the rights and aspirations of the Kashmiri people. It is only through the protection of these rights that Azad Jammu and Kashmir can move toward a future rooted in democracy, justice, and peace.

About the author: Sardar Aftab Khan is a public policy advocate for human rights and constitutional freedoms, emergency planning and community resilience practitioner, and Kashmiri Diaspora rights campaigner. He can be contacted via e-mail: Aftab@kdfuk.org

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