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May 21, 2019

Amendments and distortions


May 21, 2019

Pakistan’s parliament is such a barren place these days, failing spectacularly to fulfil any of its three functions – representation, legislation and oversight.

And yet it can suddenly leap into action, as it did last week, by adopting the 26th Amendment to the constitution to grant extra seats to the former Fata districts in the provincial and national assemblies. All parties were united in congratulating themselves on the great achievement, done in the national interest and meant to heal the wounds of the troubled region. In fact, through such express policymaking, they might have done more harm than good.

The representation in the National Assembly of Pakistan is based on population and theoretically each citizen enjoys equal representation in the lower house of parliament. According to the constitution: “The seats in the National Assembly shall be allocated to each province and the federal capital on the basis of population in accordance with the last preceding census officially published.” Seats in each district are determined by dividing the population of the district with the quota per seat of the National Assembly. Since the population of the federating units varies hugely, this imbalance is corrected in the Senate of Pakistan where each federating unit enjoys equal representation, irrespective of its population.

Fata has been an exception to this rule as it was allotted a generous quota of seats at the National Assembly and the Senate. The number of seats allotted to the Fata region in the National Assembly were more than double its quota based on population; and seats in the Senate can be considered even more generous. Interestingly, members from Fata could not legislate on matters of their own region.

Before the merger, the social contract between the state of Pakistan and the citizens of Fata did not exist. The mechanism of accession, signed in 1948, granted a special administrative status to the region. This arrangement allowed the tribal areas to keep their colonial semi-autonomous status. The state dealt with citizens through self-regulating tribes which exercised administrative authority based on tribal codes and traditional institutions like the jirga.

The semi-autonomous system was in fact a mechanism set up by the British to establish a firm hold over the area without making any expenses on development in a region that was seen as a buffer. The colonial rulers enforced a series of laws in the 1870s. One of these laws was the Frontier Crimes Regulations (FCR). The FCR, especially designed for the tribal areas, was different from the criminal and civil laws that were in force elsewhere in British India. In 1901, the British rule issued a new FCR that expanded the scope of earlier regulations and awarded wide powers to administrative officials.

Even after Independence, the people of Fata were deprived of political, judicial, social and other reforms, introduced in other parts of the country. The well-established excuse for this denial was the tribal setup and the conservative nature of the people.

Until the introduction of adult franchise in 1996, an electoral college of some 35,500 Maliks selected representatives to the National Assembly. The bidding for votes was often done in broad daylight and jirgas were held to determine the price of each seat. The election of 1997 was the first in Fata in which 12 members were directly elected to parliament.

Though the citizens of Fata were allowed to elect their representatives directly, elections in the region were held on a non-party basis. The Political Parties Act was extended to Fata in 2011 and the first party-based elections were held in the region in 2013. That’s why national political parties have a very weak presence in the region, leaving space for new political forces to emerge.

In May 2018, Fata was finally merged with the province of Khyber Pakhtunkhwa (KP) through the 25th Amendment to the constitution, despite strong opposition from vested interests. The amendment made a one-time exemption for Fata to keep its seats in the National Assembly. The amendment states: “the Federally Administered Tribal Areas to be elected in the general elections, 2018, shall continue till dissolution of the National Assembly and thereafter this clause shall stand omitted.”

After the merger with the KP, Fata has lost its status as a unique entity in the federation. Its citizens are part of the province and they are supposed to enjoy equal rights and responsibilities.

The citizens of former Fata have been through very tough times. Apart from historical injustice, they have faced the frontal assault of terrorists who ruled the area for years. Theirs is a post-conflict society carrying many scars and facing huge challenges in adjusting to new realities. They have to adjust with a new system of governance and many of their residents must also find new means of livelihood after an ill-defined frontier turns into a proper border between two nation-states.

Hardly anyone can argue against the need for the affirmative action for the resident of the region. The allocation of a certain percentage of the NFC for the region has been debated for some time, though it has not materialised yet. It will be difficult for a government dogged by fiscal challenges to allocate generous resources for the region in the next few years. Perhaps, for this very reason political parties have decided to reward the region by continuing a distortion in our democratic system.

In fact, the 26th Amendment introduces a brand new distortion to the constitutional principle of representation, in the name of affirmative action. While representation in the rest of Pakistan is based on each citizen carrying equal right of representation, in the case of former Fata, other factors have been given weight. The pain inflicted through terrorism, poverty and a sense of deprivation were cited as major reasons for the new principle of representation introduced through the amendment. Interestingly, the same criteria can be applied on large parts of Balschistan. Additionally, Balochistan has a geographical case for enhanced representation as some if its constituencies are as large as the KP province.

Since the concession has been granted to some districts of a province, many districts within KP and in other provinces can also demand enhanced representation in elected institutions. A new Pandora’s box has been opened in a hurry and it may give birth to new challenges.

According to journalist Saleem Safi, the reason for the constitutional amendment is merely tactical. The main purpose behind it is to delay provincial elections in the region and thus keep monopoly over the patronage.

The PML-N was the most interesting sight during the amendment processes. Its legislators were jumping up and down to prove their nationalist credentials. However, during the same week they returned to their clever best when the spotlight shifted on to southern Punjab. Southern Punjab could only dream that it could get similar emotional speeches from Khawaja Asif or an amendment to the constitution.

During the PML-N government, Lahore, where the proportion of those living below the poverty line is six percent, had the highest allocation of development expenditure per person. In contrast, Rajanpur with 66.3 percent population living below the poverty line had one of the lowest allocation of development expenditure per person. Similarly, Muzaffargarh, Rahimyar Khan, Vehari, Lodhran – districts with the highest levels of poverty in the province – had the lowest per capita allocation of development expenditure. In contrast, several districts, with very low rates of poverty had high per capita development expenditure allocated for them. These included Rawalpindi, Gujranwala, Sialkot and Sheikhupura.

While the PML-N blocks bifurcation of Punjab by offering an extra three district province to southern Punjab, it can consider something on the lines of the 26th Amendment. The PML-N may bring a bill to double the seats for southern Punjab in the Punjab Assembly. Perhaps, such a legislation will forever thwart those who are demanding to divide Punjab and aiming to create a fiscal imbalance between Lahore and Rajanpur.

The writer is an anthropologist and development professional.

Email: [email protected]

Twitter: @zaighamkhan