Can Pakistan Redraw Its Constitutional Map?

Can Pakistan Redraw Its Constitutional Map? Quite​‍​‌‍​‍‌ recently the issue of setting up new provinces or administrative units has suddenly come to light as a subject for national consideration. There may not be much sense in discovering the starting point of this discussion. The only thing that counts is the fact that this topic has developed a certain weight politically and it is now part of each major political conversation. Regardless which research one undertakes, first of all a good question is always necessary. Hence, the principal question here is if, by the wording of our Constitution, the creation of new provinces such as to affect Pakistan’s geographical area is constitutionally permissible.

Since Pakistan is a federal republic, the territory of the country has four provinces: Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh and the capital is a federal territory. Section XI of the Constitution deals with the amendment of the constitution and also includes a safeguard which is specifically related to the constitution of any amendment that would result in a change of a provincial boundary. Article 239, clause (4) says, "A bill to amend the Constitution which would have the effect of altering only the limits of a province shall not be presented to the president for assent unless it has been passed by the provincial assembly of that province by the votes of not less than two-thirds of its total membership." Can Pakistan Redraw Its Constitutional Map?

If taken at face value, this clause means that the authors of the Constitution assumed the possibility of Pakistan’s territorial composition being gradually modified through lawful constitutional and legislative procedures. They unambiguously dismissed the idea of making a one-sided territorial change. However, they accepted the idea that legitimate national legal mechanisms could eventually lead to the constitutional map of the country being redrawn.

Any change of this nature would have to be done in conformity with Article 239(4), by way of changing the boundaries of the province, or through Article 1(2)(d)(3), permitting the law to admit new provinces or areas into the federation. Thus, the Constitution includes an extra safety measure for changing province boundaries: the relevant provincial assembly approves the change. Still, an amendment through this clause only affects the boundaries of the provinces and, by default, does not result in establishing a totally new province. A new province would be set off through an amendment to Article 1 that outlines the territories of Pakistan and, at the moment, lists only the four provinces.

Democracy can only function if people have a chance to express their opinions.

Actually, even the Constitution leaves it open as to which provinces exactly the country will have and what the borders between them will be. The delineation of the provincial boundaries has been carried out in the Province of West Pakistan (Dissolution) Ordinance, 1970 (P.O No.1 of 1970) and is an existing law when the constitution of 1973, the new constitution was in force. One could accordingly suggest that amending only the 1970 Order will suffice to create a new province. This suggestion, though, faces severe objections. At the heart of these issues is whether the government currently in power truly has the democratic legitimacy to enact such fundamental Constitutional changes.

Such major moves in a democratic republic would normally require the party to have got the mandate from a political election based on the platform that it presented. That is, the voters supported the party when the party campaigned on a platform that includes such a major ​‍​‌‍​‍‌move. Can Pakistan Redraw Its Constitutional Map?

There​‍​‌‍​‍‌ was not much discussion that the current government has not got a mandate at the last elections, mainly due to the topic of new provinces being the dividing line. Without that approval the government would be in contradiction with the core idea of representative democracy that the Preamble to the Constitution sets out that “we the people of Pakistan . . . do hereby through our representatives in the House of the people, adopt, enact and give to ourselves, this Constitution” which is one of the great texts of the world. In short, Constitution was bestowed by the people upon themselves through their Representatives, so any drastic change of its basic structure should, really speaking, depend upon a fresh mandate from the people. To my mind safeguarding that constitutional principle was a very basic need.

Nobel winner Daron Acemoglu said, for instance, that without the general public’s involvement or reaching a wider agreement such policies can end up reflecting the perception that elites are taking against working-class areas. As his argument is put, democracy basically relies on people really asking the question and sharing their view on it. It’s about one’s voice and a form of governance where each citizen is involved. Also, he highlighted the fact that an infrastructure that would give the public understanding and information, thus, people’s trade-off awareness, was very weak. Can Pakistan Redraw Its Constitutional Map?

Therefore, a highly-educated segment of the population should get to understand the importance of consulting people instead of the imposition of their own preferences and values. If they do without asking for people’s opinions, they might not only be looking at the wrong people and, possibly, getting the wrong people in.

So, in case of the Constitution which is going through a major transformation and, as a whole, changing it from the original framework, in principle, the public would have to be consulted. The only way to get the people’s acceptance is the election, a vote is taken by the electorate in response to their decision to create new provinces or the second route is by way of a referendum as per Article 48(6) Constitution. Can Pakistan Redraw Its Constitutional Map?

The first way is to have a new vote where the issue of new provinces is in forefront that is, of course, that the election is about the creation of new states. The second, under Article 48 (6) of the Constitution, that is the way, for example, that the President might ask people of Pakistan their views on a proposed constitutional amendment through a referendum. While this method is the second option, it can raise quite a few issues in implementation as well as in the law. However, regardless of all these practical aspects, we cannot forget the central idea, which is that a decision of this magnitude should, at least, reflect the public's will and be backed up by, in fact, a clear democratic mandate. It is not something we carry out by merely playing ​‍​‌‍​‍‌politics.