Daily Times

Our Constitution, according to Article 238, can only be amended by an act of Parliament. It envisages, a bill to amend the Constitution may “originate in either House” and it requires to be passed by “the votes of not less than two-thirds of the total membership of the House”, before it is transmitted to the other House. The bill is then presented to the President for his final assent.

There is no general requirement for a bill which amends the Constitution other than to be passed by the votes of two-thirds of any provincial assembly before its presented to the President, unless such a bill “would have the effect of altering the limits of a Province” (sub-clause 4 of Article 239). In that case, such a bill only needs to be passed by the provincial assembly of that province whose limits are being altered.

The scheme of Constitutional amendment effectively robs provinces of an opportunity to speak on amendments to the Constitution. Unlike in the UK, Pakistan does not have the unitary structure to government. It is a federation. Any amendment to the Constitution, does not only affect the centre but also the federating units. So, not just for amendments that may alter the limits of a province, but for all amendments, all provinces ought to be given a role to speak.

Article five of the US Constitution, for instance, incorporates such a federalist scheme to amendment. The Congress, comprising two Houses, only proposes amendments if it has a strength of two-thirds, or on an application of “Legislatures of two thirds of the several States”.

The primary control on the government is its dependence on the people. That dependence does not start and finish with elections. Truly democratic polities ensure supremacy of the people at every stage. The people always take precedence over the chosen representatives who merely exercise a delegated authority

It calls a convention proposing amendments. Such amendments only become part of the Constitution, when they are “ratified by the Legislatures of three-fourths (not two-thirds) of several States, or by Conventions in three fourths thereof”. The Senate is not an elected house. For a Senate to have a say on Constitutional amendments and originate the process itself, is the same as giving a role to other unelected bodies on Constitutional amendments.  The role to initiate and speak on amendments to the Constitution should only be reserved for the elected representatives of the people in both the centre and the provinces!

The age-old adage: “He, who conquers the heartland, conquers Eurasia” for Pakistan becomes: “He who conquers Punjab, conquers Pakistan.” Presently, and this is before the latest census has taken effect on electoral politics, Punjab draws more than 53 percent of the total seats in the National Assembly. Per Article 51 of the Constitution, the National Assembly has a total of 342 members, including 60 seats reserved for women and 10 for non-Muslims. Of the total, Punjab has 183, Sindh has 75, KP 43, Balochistan 17, FATA 12 and Islamabad has 2. The government in the centre largely depends on election results from Punjab. With so much at stake in Punjab, power inevitably also gravitates to Punjab.

This Constitutional imbalance has resulted in provincialism in the country — single biggest threat to federalism. A simple majority alone is sufficient to secure a government in the centre, they know, and on the strength of just one province, important Constitutional decisions can be engineered. No wonder, there is no meaningful drive shown by ruling PML (N), to reach out to smaller provinces. The scramble for power in the next general elections would again concentrate in Punjab — they know!

But the Constitution belongs to the people of Pakistan. Through our structures and processes we must move towards representative democracy and enable participation of the people, across the country, to express voice on matters that affect each one of us — collectively and individually.

There are several examples, around the globe, of seeking peoples vote through referendum before important constitutional or policy decisions. A mandatory and a binding referendum could also be introduced in the scheme of Article 239 of the Constitution before an amendment process is initiated. Such process, at any rate, must include ratification from the provincial assemblies before it is presented for the assent of the President (a non-elected figure head).

The primary control on the government is its dependence on the people.  That dependence does not start and finish with elections. Truly democratic polities ensure supremacy of the people at every stage. The people always take precedence over the chosen representatives who exercise merely a delegated authority, which is, fiduciary in nature and is not untrammelled. Therefore, before amending the most important text that may alter the order of the state itself; it is quintessential to secure greater role of the people of Pakistan, at every step of such process!

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, October 31^st 2017.