1. Introduction
Looking into the very concept of decentralization, history proves this has been a popular concept, well applied by earlier civilizations. As early as 200 B.C., the Greeks found city-states as more democratically manageable and administratively effective. An example in the recent past is the breaking away of the states from the USSR. It is also a historical fact that Pakistan was created through constitutional and legal means. After the Constitutions of 1956 and 1962, the Constitution of 1973 is the first Constitution of Pakistan made by a constituent assembly elected directly by the people based on adult franchise, and all the political parties with membership in the Constituent Assembly voted for the Constitution; it could also be described as a unanimous Constitution.
The question of new provinces in Pakistan has ignited a political firestorm in the National Assembly over the last few months. Senator Raza Rabbani, the architect of the 18th Amendment, rubbished the idea of a 'debate' on the issue in the National Assembly, stating categorically that the exercise was unconstitutional because "it (the resolution) can only be brought before the National Assembly if passed by the provincial assembly with a two-thirds majority." So, after this statement of Mr. Rabbani, it is crystal clear that any discussion in the National Assembly is unlawful and against the spirit of provincial autonomy.
However, the Pakistan People's Party (PPP) and its allied parties in government want division of the Punjab province to achieve political and social objectives. Resultantly the PPP launched the demand of a Saraiki province either as a political reality or a slogan for the next election, to divide the vote bank of other political parties by supporting the regional demand. There is no doubt that the movement of new provinces in Punjab for the restoration of Bahawalpur Province and creation of South Punjab has become popular at grass-roots level, for which political parties are playing their cards to cash the vote bank in coming elections. Various political parties have supported the idea of new provinces. The MQM has even tabled a resolution in the parliament for the creation of the Hazara and Seraiki provinces by submitting the Bill of the 20th Constitutional amendment, which requires the creation of new provinces by the simple majority of the parliament rather than the existing constitutional procedure of a two-thirds majority of Parliament and the concerned Provincial Assembly.
On the other hand, the princely state of Bahawalpur was founded in 1802 by Nawab Mohammad Bahawal Khan II. Nawab Mohammad Bahawal Khan III signed a treaty with the British on 22 February 1833, guaranteeing the independence of the Nawab. The state acceded to Pakistan on 7 October 1947 when A'ala Hazrat Nawab Sir Sadiq Muhammad Khan Abbasi V decided to join Pakistan at the time of independence. The Bahawalpur state became a province of Pakistan in 1952 and was merged into the province of West Pakistan on 14 October 1955 as one-unit. When West Pakistan (one-unit) was divided into four provinces — Sindh, Balochistan, NWFP (recently KPK), and Punjab — Bahawalpur became a part of Punjab.
The State of Bahawalpur acceded as a result of an agreement between the Ruler of Bahawalpur and the Founder of Pakistan, the crux of which is that Bahawalpur will be a separate province and will continue as a separate unit of the federation. The consequence of which was that Bahawalpur became a Province and continued so until the unconstitutional intervention of Ayub Khan and imposition of Martial rule in Pakistan. One unit was promulgated, joining all the provinces as a single unit of West Pakistan and East Pakistan. The issue ignited when one unit was lifted and Bahawalpur was made part of Punjab. The people of Bahawalpur did not agree to it, and this was the reason the Pakistan Peoples Party lost the election of 1971 in Bahawalpur. Therefore, the voice of a separate province of Bahawalpur is still alive. The Senate Standing Committee on States and Frontier Regions held on 19th and 20th May 2011 at Bahawalpur strongly recommended the restoration of Bahawalpur Province.
2. Comparative Analysis of Provincial Structure of Different Countries
The creation of provinces may be due to many reasons; it may be because of its size or it may be to recognize a faction. The formula for every country differs, whereas formation of provinces on administrative reasons is a world-wide recognized formula in this regard. Before the creation of Pakistan, the Indian Sub-Continent had been under the rule of different rulers which belonged to different cultures, and they applied their different formulas to retain control over this land. The most similar of the societies to Pakistan is the society of India, volatile at the same scale and multi-cultural at the same level. After Independence from British rule, India abolished feudalism and proposed herself as a Democratic and Secular State.
a. India
At independence in 1947, British India had seventeen provinces. Upon the Partition of India into the Union of India and the Dominion of Pakistan, twelve provinces became provinces within India, three (Baluchistan, North-West Frontier, and Sind) within Pakistan, and two (Bengal and Punjab) were partitioned between India and Pakistan. In 1950, the new Indian Constitution was adopted; redrawn states and union territories replaced the provinces in India. Pakistan retained its five provinces, later reduced to four as Bengal became a separate state of Bangladesh. India managed the language problem by making provinces on a lingual basis as well as on an administrative basis. But primarily the initial formula of Indian formation of provinces was on a lingual basis: the province of Maharashtra was made where Marathi is spoken, Gujarat where Gujarati is spoken, Orissa where Orri is spoken, and Tamil Nadu where Tamil is spoken. Uttar Pradesh, being a very large province, was divided into two provinces due to administrative reasons.
The Indian constitution provides the following procedure for the establishment of a new state. Article 2 provides that Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. Article 3 provides that Parliament may by law form a new State by separation of territory from any State or by uniting two or more States or parts of States, increase the area of any State, diminish the area of any State, alter the boundaries of any State, or alter the name of any State — provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President, and unless the Bill has been referred by the President to the Legislature of the affected State for expressing its views thereon.
In the absence of unanimity among the then central leadership on provincial division on linguistic consideration, reorganisation of states was kept in abeyance for some time. However, large-scale violence that followed the death of Sriramalu, a prominent Congress leader from the Telugu-speaking region of the then Madras Province, after 56 days of fasting on 15 December 1952, compelled the Government to announce the creation of the first state on linguistic consideration, and Andhra Pradesh was formally created on 1 October 1953. This opened a flood gate of demands for creation of new states, and the Government finally appointed a State Reorganisation Commission (SRC) in 1953 with Justice Fazl Ali as Chairman. By and large the SRC recommended creation of states taking into consideration the preservation of the unity and security of the nation, linguistic and cultural affinity of the people, and financial, economic and administrative viability. On the basis of its report and under the States Reorganisation Act, 14 states and six union territories were created in 1956.
India created its first province on linguistic grounds. The process continued; India now has nearly two dozen states, while it inherited a single-digit tally at the time of independence. Cultural commonalities should be duly considered while forming the provinces; however, such elements should not be the sole criteria. Administrative and financial viability should be the underwriting raison d'être within which intrinsic cultural values may be adjusted.
b. United States
The United States is another example of unification of multi-cultural factions. The states of the USA were initially unified as a confederation but later became a federation. The federation was a result of covenants, and the federation recognized the States, their identity and their right to legislate; even after 300 years the federation of the USA is intact. Article IV of the United States Constitution provides for the creation of new states of the Union, requiring that any such creation be approved by the legislature of the affected state(s), as well as the United States Congress. Since the adoption of the U.S. Constitution, four states have been created from parts of an existing state: Maine (from Massachusetts), West Virginia (from Virginia), Kentucky (also from Virginia), and Vermont (from New York). Congress may admit new states on an equal footing with existing ones; this last happened in 1959 with the admission of Alaska and Hawaii.
c. Australia
Australia achieved independent Sovereign Nation status after World War I, under the Statute of Westminster. The Australia Act 1986 removed any remaining links between the British Parliament and the Australian states. The case of Australia is also near to the USA. Australian units are also a result of covenant and have been given greater autonomy than any other federal system. The formula in Australia to maintain units is once again the recognition of all the factions.
3. Legal Procedure to Form New Province in Constitution of Pakistan 1973
Creation of a Province requires Amendment in the Constitution, but in the case of a province, the amendment has to be passed by that particular provincial assembly whose boundaries will be altered. Article 239 of the Constitution of Pakistan 1973 gives force to it. Under Article 238, subject to Part XI, the Constitution may be amended by Act of Majlis-e-Shoora (Parliament). Under Article 239, a Bill to amend the Constitution may originate in either House and, when the Bill has been passed by the votes of not less than two-thirds of the total membership of the House, it shall be transmitted to the other House. A Bill to amend the Constitution which would have the effect of altering 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. No amendment of the Constitution shall be called in question in any court on any ground whatsoever.
4. Reasons for Making New Provinces
New provinces can be created only through a constitutional amendment, which must be passed by two-thirds majorities of both houses of parliament, and a constitution amendment bill that can alter the limits of a province cannot be presented to the president for assent unless it has been passed by not less than two-thirds of the total membership of that province. This area of constitutionality is not the sole domain of concern; there are equally other fields, e.g., establishing an administrative set-up for the new provinces and distribution of resources among all provinces including new ones.
a. Welfare of the People
New provinces are created for various reasons. Primary among them is the administrative reason that a province has become so large, in terms of population, that adequate provision of public services to the people is not possible without carving out smaller units. However, in reality, political considerations often overshadow the reasonable administrative and welfare reasons and create further complications. In our current debate over new provinces, let us remember that the creation of newer units obviously has a political dimension but the primary consideration must be the welfare of the people.
b. Administrative and Governance Issues
Contrary to popular belief, provinces are created within countries fairly often. In most cases new provinces are created to improve and simplify public management and governance. In a lot of cases they are carved out of existing provinces to reduce ethnic tensions between communities, and in certain cases they are created to satisfy the demands of the local population.
c. Recognition
Recognition is the only thirst which every personality has in the whole of this universe. Whenever this recognition is challenged a dispute occurs, and that may lead to long eras of chaos and disruption. To get recognized is a right which has long been recognized by every religion and now by every civilization and law. The case of Pakistan is folded in multi-lingual and multi-ethnic factions, present all around the Sub-continent. The current debate centres around two regions: the Seraiki area in southern Punjab and the Hazara region on the Frontier. The main impetus behind these movements is that of language. The Hazarewal speak Hindko and are mostly non-Pakhtun, while southern Punjab speaks Seraiki. A great example of this is India and Nigeria: in both cases, the governments have created new provinces as and when the need has arisen. Since 2000, India has created at least six new provinces mostly for better administration and satisfying public demands. The local government in India has improved drastically in part due to the smaller administrative units, and it has also helped curb the once troublesome threat of multiple insurgencies by local communities against the government.