Thursday December 09, 2021

Follow the constitution

October 10, 2019

The issue of new provinces or doing away with the current provinces has bedevilled the nation from 1954, although no Pakistani constitution from 1956 to 1973 talks about creating new provinces.

Under the provisions of the Lahore Resolution, 1940, the Cabinet Mission Plan, the June 3 Partition plan announced by Lord Mountbatten and the Independence Act, 1947, the British transferred sovereignty to five Muslim majority provinces of East Bengal, West Punjab, Sindh, the Frontier and British Balochistan in 1947 to join a separate constituent Assembly to create a new federation or participate in the existing All India Constituent Assembly.

All five Muslim majority provinces opted for a new and separate constituent assembly which had to create a federation. Pakistan’s status was to remain of a dominion of the British until a new federation was created by the constituent assembly. Unfortunately, the constituent assembly the provinces had joined was dissolved by the governor general in October, 1954 and a new and rigged constituent assembly was created in May, 1955 which through the 1956 constitution created a federation based on two provinces of East and West Pakistan instead of five as provided in the June 3 plan, the Independence Act, 1947 and the Lahore Resolution, 1940.

However, Article 216 in the 1956 constitution provided that the limits of provinces could not be altered unless the provincial assembly of that province passed a resolution by simple majority. The provincial West Pakistan Assembly having 60 percent representation of Sindh, Frontier and Balochistan passed a resolution in 1957 calling upon the centre to undo the West Pakistan province and restore all the four provinces.

The first general elections under the 1956 constitution were to be held in February 1959. Alarmed by the resolution of the West Pakistan Assembly and sensing defeat of his illegal One Unit plan under the 1956 constitution, General Ayub declared martial law on October 7, 1958 which was stamped by the Supreme Court in the infamous Dosso case.

When Ayub gave his constitution in 1962 based on two provinces instead of the original five, he provided protection to West Pakistan – popularly known as ‘One Unit’ – through Article 210 which stipulated that the National Assembly would not pass any amendment bill of the constitution regarding the alteration of the limits of a province unless the provincial assembly of that province passed a resolution by two-thirds majority. This was to avoid the 1957 resolution of the West Pakistan Assembly by a simple majority which it had passed under the 1956 constitution.

After Ayub’s disgraceful exit, General Yahya restored all the four provinces of West Pakistan by enacting the West Pakistan Dissolution Order, 1969 and in the 1973 constitution the same protection which Ayub gave to One Unit was given to the present provinces under Article 239(4). The language of both Articles 210 of the 1962 constitution and Article 239(4) of the present constitution is almost the same.

Article 239(4) is about protection to the present provinces. It is not about creation of new provinces. The word ‘alteration’ has been defined by the courts and it doesn’t mean something new. This provision is about altering the limits of provinces, not creating new provinces. Any contrary interpretation would be misleading at best.

From the very beginning, Pakistan’s constitutions had no provision for creating new provinces given the historical background of the federation consisting of five Muslim majority provinces, at least four of whom were independent countries when the British occupied them. It was and is a federation of Muslim majority provinces.

Unlike Pakistan, Article 2 of the Indian constitution provides clear provision for creation of new provinces. It says: ‘Article 2: parliament may by law admit into the Union or establish new states on such terms and conditions as thinks fit.

‘Under article, 1(3) of our constitution, parliament may admit new states or areas but it can’t create new provinces as provided under Indian constitution.’The debate on the creation of new provinces is pointless. Unfortunately, efforts are afoot to divide Punjab in violation of the constitution when there are already doubts about the very health of the federation not created by a valid constituent assembly.

The upshot of the above discussion is that whenever favoured political parties fail to deliver to the people, they harp on the mantra of division. This has been their constant refrain – from the British to the present. They need to bury this pointless debate and follow the constitution. Following the constitution and rule of law brings people closer whereas talk of division not only alienates them but sows the seeds of hate as we have been witnessing from 1947.

The writer is a barrister-at-law and former advocate general of Sindh.

Twitter: @zamirghumro.