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Ask the people first

May 17, 2012

MUCH of the confusion that marks the debate on the creation of new provinces is due to the absence of a reasonable, democratic and comprehensive constitutional provision on the issue.

The sole reference to the subject is found in Article 239(4) which says:

“A bill to amend the constitution which would have the effect of altering the limits of a province shall not be presented to the president for assent unless it has been passed by the provincial assembly of the province by the votes of not less than two-thirds of its total membership.”

The present wording of the provision was decided by Ziaul Haq vide Presidential Order 14 of 1985. In the original 1973 provision, no bill on the subject could be passed by the National Assembly unless it had been adopted by the provincial assembly.

The change is significant. Under the original 1973 text, the National Assembly could pass a bill affecting a province’s boundaries only after the provincial assembly concerned had adopted it. Now the question of the provincial assembly’s approval arises only when the bill is presented to the president for assent, i.e., after it has been adopted by the National Assembly and the Senate.

The 1973 provision was taken without any change from the Ayub constitution of 1962 (Article 210) when there was no Senate and the word parliament was not favoured. It was in fact a simplified version of the provision of the 1956 constitution (Article 216, first proviso) and which Zia preferred to the 1973 text.

The present provision is flawed on two important counts. First, alteration in the limits of a province can mean addition of some territory to a province as well as deletion of some area from it and the principal stakeholders in the two transactions — the people affected by the change — may have different perspectives.

Secondly, consultation with the province concerned is envisaged after the adoption of the measure by the National Assembly and the Senate and not earlier, and there is no mention of the wishes of the people likely to be affected.

This lack of concern for the wishes of the people of the territory under transfer is in sharp contrast to the privilege allowed to the population of the Federally Administered Tribal Areas.

Under Article 247 (6) the political/administrative status of the people of the whole or any part of a tribal area can be changed by the president by a stroke of the pen. However, before passing any order the president must ascertain the wishes of the people concerned “in such manner as he (himself) considers appropriate”, although the forum of consultation has to be the tribal jirga.

No such privileges for the people who may be shunted from one provincial entity to another.

The casualness with which our constitution treats the issue of creation of new provinces or alterations in the limits of a province and ignores the principles followed in the constitutional documents of the pre-Independence period is truly astounding.

The Government of India Act of 1935 had a clear provision for the creation of new provinces. Under Article 290 His Majesty-in-Council could by order (a) create a new province (which could be headed by a governor or a chief commissioner); (b) increase the area of any province; (c) diminish the area of any province; (d) or alter the boundaries of any province.This power of the monarch was subject to the condition that before his order was laid before the British parliament, the secretary of state was to ascertain, in accordance with the Crown’s directives, the wishes of (i) the federal government; (ii) both Houses of the federal parliament, (iii) the government of any province that would be affected; and (iv) the legislature of that province.

At Independence, His Majesty’s powers were transferred to the governor-general. Otherwise, the relevant article was retained in Pakistan’s provisional constitution till the enforcement of the constitution of 1956.

In addition to ignoring the sound precedent set in the 1935 Act, Pakistan’s constitution-makers also took no notice of the course adopted by India. Instead of putting the subject of new provinces in the final pages of the basic law, the authors of the Indian constitution took up the matter in Article 3, which says:

Formation of new states and alteration of areas, boundaries or names of existing states. Parliament may by law, (a) form a new state by separation of territory from any state or by uniting two or more states or parts of states or by uniting any territory to a part of any state; (b) increase the area of any state; (c) diminish the area of any state; (d) alter the boundaries of any state; (e) alter the name of any state.

A proviso to the article stipulates that no bill on the subject can be moved in either House of parliament except on the recommendation of the president, who will allow the bill to be moved only after receiving the views of the state legislature concerned.

Respect for the wishes of the people affected by any alteration in provincial limits has a fairly long history in our part of the world. In 1905, Lord Curzon partitioned Bengal partly for administrative reasons and partly as a concession to the Muslim-dominated eastern part of the province but he ignored the interests/wishes of the western part and the latter forced the step to be taken back. In 1947, the fate of the divided parts of Punjab and Bengal was decided by members of the assemblies elected from those parts, meeting separately.

When the federal clique in power decided to abolish the West Pakistan provinces and create One Unit it could not bypass the formality of securing prior consent from the provincial assemblies. The excesses committed in the process are another matter.

Pakistani lawmakers also made the mistake of omitting the possibility of having autonomous areas lower in status than governors’ provinces — chief commissioner’s provinces in the Act of 1935 and union territories in the Indian constitution.

These units offer a way to satisfy the autonomy aspirations of communities that are too small or too resource-starved to bear the burden of a provincial establishment.

Two questions are relevant. First, why has Pakistan been afraid of working out a proper province-making plan and, secondly, what should be done now?

The answer to the first query lies in the elite’s campaigns against democracy. The lords of the western wing had a Faustian deal on the sanctity of parity with the eastern wing. One Unit was the gateway to that order and no question about new provinces could be allowed as that would have threatened parity. Also partition of any territory on a basis other than religion or administrative need is anathema to the country’s self-styled ideologues.

As for the second question, the constitution needs to be amended so as to define the process of change in the provincial boundaries. The changes should be spelt out, as done in the Indian constitution, the final decision should lie with parliament but subject to prior consultation with the people to be affected either way.