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October 22, 2017

Devolution for the marginalised


October 22, 2017

The provincial autonomy and ‘devolution’ of twenty-seven different ministries/departments from the federal to the provincial governments is considered a ‘landmark achievement’ in the constitutional history of Pakistan. It had become possible after the passing of the 18th Constitutional Amendment of 2010.

Through the 18th Amendment, the Concurrent Legislative List was deleted from the 4th Schedule of the constitution after which the provinces can now legislate on all those subjects which are not part of the Federal Legislative List. Due to this, a large number of ministries/departments are now entirely ‘controlled and administered’ by the provinces.

After the 18th Amendment, an Implementation Commission was appointed with the powers and the mandate for the early and smooth implementation of the amendment – before June 30, 2011. The commission took many initiatives, including numerous exhaustive meetings with all key stakeholders, and recommended the completion of devolution in three different phases.

Besides the other important ministries, on June 28, 2011, the subject of ‘Minority Affairs’ was devolved in the first phase to the provinces, leaving the Evacuee Trust Property Board (ETPB) with the federal government, which was ‘supposed’ to devolve it to the provinces. The ETPB is the principal department which administers the evacuee properties attached to educational, charitable and religious trusts left behind by Hindus and Sikhs at the time of Partition, and also has the mandate of the preservation of places of worship belonging to these two communities across the country. It has been learned that the federal government has kept the ETPB as a ‘classified department’ and that due to this the implementation commission was ‘unable’ to timely devolve this department to the provinces.

The federal government has without any tangible reasons kept the ETPB with itself and has ‘failed’ to hand over rights over administration of these properties to the provinces. Due to this failure, whenever the provincial governments plan to work for the protection of places of worship, reconstruction, rehabilitation of trust properties etc, they can’t do anything else without the permission of the EPTB; as a result, the minority communities suffer.

Soon after the devolution, the Khyber Pakhtunkhwa Assembly passed the KP Protection of Communal Properties of Minorities Act on December 8, 2014. Section 5 of this act explicitly excluded evacuee trust properties administered by the ETPB under the Evacuee Trust Properties (Management and Disposal) Act 1975, because the ETPB has still been ‘kept’ by the federal government and the provincial government was forced to ‘exclude’ the ETPB from the provincial subject.

There are various problems associated with the administration of minority communities, their evacuee trust properties and with their welfare. For instance; before Partition, there were ‘five schools’ in Peshawar, owned and administered by the Sikh community, where their children were being educated. Today, there is ‘no school’ owned or administered by the Sikh community in the entire KP province. Activists from the Sikh community believe that the provincial government should support them in order to establish putative educational intuitions. But the provincial government has ‘no powers’ to sanction any evacuee building to be utilised for educational purposes, as these properties are administered, rented and utilised by the ETPB.

Similarly, Sikh and Hindu communities living in different areas of KP and Fata are facing problems in practising their ‘religious beliefs’. For instance, before Partition, there were ‘two Shamshan Ghat’ in Peshawar. After Independence, one was replaced by the Chacha Younis Park; in the other, which was in Gorgatri, a marriage hall was constructed in its place. Now, there is no Shamshan Ghat for the Sikh and Hindu communities living in Peshawar, Bannu, D I Khan, Kohat and Nowshera districts.

The people of these areas are ‘forced’ to carry their dead to Attock District in Punjab. They need to arrange their own means of transportation; minimum expenses reach between 50,000 and 60,000 rupees, which can’t be managed so easily. They had requested the KP government for a Shamshan Ghat in five districts including Peshawar. The provincial government has allocated funds in the annual budget for the purchase of Shamshan Ghats, but the acquisition hasn’t been materialised. If the administration of evacuee properties held by the ETPB is given to the provinces, its revenue could be best utilised for the welfare of these communities.

Pakistan is a state party to the International Covenant on Civil and Political Rights, under which it is obliged to protect its minority populations. Article 27 of the ICCPR says that “in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”.

The Supreme Court of Pakistan in its famous judgment of June 19, 2014, interpreted minorities’ special status under the constitution and has ordered the federal and provincial governments to take ‘concrete and cogent’ steps for the welfare and security of the minorities and their worship places. Therefore, it is Pakistan’s national as well as international obligation to keep the interests of its minority communities as a priority.

The National Assembly’ Standing Committee on Human Rights, the Human Rights Committee of the Senate, provincial minority ministries and other key stakeholders should work for the ‘early devolution’ of the ETPB to the provinces. The ETPB should be declassified and streamlined, and the administration of evacuee trust properties should be ‘handed over’ to the provinces. After devolution, these properties could be better utilised for the benefits of these marginalised communities.

The writer is a Peshawar-based lawyer.

Email: [email protected]

Twitter: s_irshadahmad

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