February issue 2012

The creation of new provinces in the short-run is quite unlikely. For one, Pakistan’s law-makers have other priorities on their agenda. And, for another, the constitution is silent on how the boundaries of a province can be altered, by the inclusion or exclusion of some territory. That is why those calling upon the parliament to create new provinces are seeking an amendment to the constitution.

How can the constitutional and legal requirements for forming new provinces be met? For a proper answer we need to examine Pakistan’s constitutional history.

The Government of India Act of 1935, which served as Pakistan’s constitution for the first nine years of its life, had a clear procedure for the creation of new provinces. According to Section 290 of the Act, His Majesty in Council could by an order create a new province (headed by a governor or a chief commissioner); increase the area of any province; diminish the area of a province; or alter the boundaries of any province.

This power was subject to the condition that before His Majesty’s order was laid before the British parliament, the Secretary of State had to ascertain the wishes of India ’s federal government, both houses of the federal parliament, the government of any province that would be affected; and the legislature of that province.

At the time of Independence, His Majesty’s powers were transferred to the Governor-General. A crucial change made at that time was that references to the federal parliament and legislature of the province concerned were dropped. Now the Governor-General was required only to ascertain the views of the government of the province that was going to be affected. In fact, the Governor-General was given more powers than the Crown had in the original Act of 1935. The reason could be the fact that Pakistan came into being before the boundaries of the divided provinces of Punjab and Bengal were demarcated, and everything had to be done in a hurry.

The Act of 1935 also had specific provisions for Excluded Areas and Partially Excluded Areas (mainly tribal areas). The Crown had the authority to change the status of such areas or to create new excluded areas. The relevant section (91) was retained at independence with a minor change.

India’s constitution-makers gave the creation of new provinces due importance and retained Section 290 of the Act of 1935 in the very first part of the constitution (the union and its territories). This was perhaps due to the fact that the party in power had accepted, before independence, the principle of re-demarcation of provinces on ethnic and linguistic grounds. The process of creation of new provinces was streamlined through a 1955 amendment which obliged the president to seek the views of the legislature of the province concerned, before he could recommend the introduction of the relevant bill in parliament.

Pakistan, on the other hand, was quite happy with the revised section 290 of the Act of 1935, perhaps because its rulers did not like the idea of changes in provincial boundaries on ethnic/linguistic grounds. The provision for tribal areas, as well, was not changed. Thus, the excluded areas of D.G. Khan were included in the province of Punjab and the two parts of Balochistan were joined into a single entity by orders of the Governor-General.

In 1954, the Constituent Assembly amended Section 290 of the Act of 1935 to the effect that any change in a province’s territory could be made only through an Act of the federal legislature. Before passing any such measure, the parliament was required to ascertain the views of the government of the province concerned. The statement of objects attached to the bill moved by Mohammad Hashim Gazdar, expressed the intensity of the law-makers’ feelings on the subject in a language that has rarely been matched in legislative documents. However, this amendment was discarded in 1955 because it had not received the Governor-General’s assent, and the provision adopted in 1947 survived till the enforcement of the constitution of 1956.

Before Pakistan’s first indigenous constitution was adopted, the four provinces in the country’s western wing were abolished to create a new province of West Pakistan through a manoeuvre of unparalelled malice — the governments of Sindh and NWFP were replaced with the Governor-General’s yes men and the Sindh Assembly speaker was put on a camel and driven off into the desert so that the assembly faced no problem in passing a resolution in favour of One-Unit. This shameful intrigue left scars that have not healed to this day.

The 1956 constitution made no reference to the creation of new provinces or the alteration of any province’s boundaries. It described the excluded/tribal areas as ‘special areas’: “the territories which are under the administration of the Federation but are not included in either province”. It was only in the article on definitions that the term ‘special areas’ was explained as “the areas of the province of West Pakistan, which immediately before the commencent of the establishment of West Pakistan Act, 1955, were (a) the tribal areas of Balochistan, the Punjab and the North-West Frontier, and (b) the states of Amb, Dir, Chitral and Swat.” Until the parliament made laws on the subject, these areas were to be administered according to the President’s orders.

The constitution of 1962 made no reference to the procedure for creating new provinces but made the position regarding the tribal areas somewhat clearer. These areas were to be administered in the way decided by the President, who incidentally could also change their status. Before doing that, however, the president was required to “ascertain, in such manner as he may consider appropriate, the views of the people of the area concerned.”

The 1973 constitution also makes no reference to the creation of a new province and retains the condition of ascertaining the views of the people of a tribal area before the status of that area can be changed.

In order to create a new province or alter the boundaries of a province, the constitution has to be amended in order to identify the authority that could make the required change and define the process to be followed. Secondly, the condition of ascertaining the views of the people, likely to be affected by the change, has been explicitly inscribed in the constitution in relation to tribal areas and in other situations it has the force of a widely upheld principle and tradition — if not that of a provision of the constitution or a convention.

What this means is that for making the FATA into a separate province, or merging it with Khyber Pakhtunkhwa, the views of its people, will have to be ascertained through a tribal jirga. In addition to the tribal people, the government and the people of Pakhtunkhwa will also need to be consulted.

How are the views of the people to be ascertained? About the tribal population, the constitution mentions the tribal jirga as the appropriate forum but this provision is not in accord with the spirit of the age. The jirga is no longer a sound means of ascertaining the people’s views or wishes and a democratic means of consultation should be preferred. As for changing the boundaries of provinces, consultation with the government and legislature of the province may not be enough and a direct method of eliciting the views of the people concerned may have to be found.

The economic and administrative implications of creating new provinces are as important, if not more, as the constitutional and legal processes. If the new provinces are to have the same top-heavy administrative structure as the units have at present — governors, chief ministers, ministers, secretaries and officials in the various departments — the addition to non-productive expenditures will be unbearable, because the overall revenue income will not increase. One could suggest less costly units, such as chief commissioners’ provinces or autonomous areas but those asking for new provinces, especially the politicians, bureaucrats and other professionals among them, are unlikely to forego the plumes of power and prestige the present provinces carry. This is a matter that needs to be sorted out now, or else ad hoc decisions will create precedents that could cause endless troubles.

Another serious issue is the impact of the creation of new provinces on the federation, especially the Senate. Suppose three new provinces are created to begin with, namely FATA, Hazara, and Southern Punjab. Khyber Pakhtunkhwa may accept Hazara as a separate province but it could vigorously resist the creation of FATA as a separate provincial unit, for that will amount to dividing the Pakhtun people or obstructing their unification. In the case of Punjab, the advocates of the restoration of the Bahawalpur state as a separate unit are unlikely to accept the inclusion of districts other than Bahawalpur, Bahawalnagar and Rahim Yar Khan to their unit.

Once new provinces start emerging, the demands for more such units will multiply. The impact of an increase in the number of provinces on the Senate will be extremely serious. At present, each province commands one-fourth of the Senate’s strength. With three new provinces, this share will be reduced to one-seventh.

Unfortunately, these issues have not yet been discussed and the leaders of the movements for new provinces are running almost entirely on emotional steam. They must apply their minds to the many aspects of the matter and complete their briefs with relevant facts and figures. This much they owe not only to their followers but also to the people of the rest of the country.

This article was originally published in the February 2012 issue of Newsline.