Pakistan has redrawn its map before. In 1955, the One Unit scheme dissolved the provinces of West Pakistan into a single administrative bloc. It survived until 1970 and is remembered without affection.
Now, back-channel bargaining over a proposed 28th Amendment to the 1973 constitution is said to involve another attempt to redraw provincial boundaries. The contents of the proposed amendment remain unsettled. Some reports have placed the creation of new provinces, including a division of Punjab and Sindh, at the centre of the package. Others suggest that the working draft has moved away from that idea.
For an amendment, the constitution sets different rules for different kinds of laws: for it to become law or statute, a bill has to be passed by parliament by a simple majority with the limitation that parliament has the competence to pass such a law (it falls under federal legislative list, which provides for list subjects which federal parliament can legislate on) and the same does not violate fundamental rights enshrined in Chapter 2 of the 1973 constitution.
For an amendment to the text of the constitution, again the amendment is presented to parliament as a bill and passed as an act of parliament, but with the requirement of a supermajority – that is, a two-thirds majority in the parliament.
The constitution gives a unique status to the provinces since Pakistan is a federal republic and the requirements for redrawing provincial boundaries are more stringent than those for passing a constitutional amendment. That rule is Article 239(4) of the constitution, which prescribes an additional requirement: a bill that would alter the limits of a province cannot be sent to the president for assent unless the assembly of that province has first passed it by a two-thirds vote of its total membership.
This means parliament cannot skip the provincial vote and still claim it has followed the constitutional mandate. If an amendment changes a province’s limits without the required two-thirds vote in that province’s assembly, the process would be procedurally invalid.
After the 26th and 27th amendments, it is difficult to say with a straight face that salient features of the constitution cannot be amended away, even by a two-thirds majority of parliament, as held by the Supreme Court in District Bar Association v Federation of Pakistan (2015). Federalism is one of those salient features, so named since Mahmood Khan Achakzai v Federation of Pakistan in 1997.
An amendment that redrafts provincial boundaries would violate federalism if the provincial assemblies do not concur. Amending Article 239(4) to remove the requirement of a provincial resolution would not help either. Article 239(4) is a protection the constitution gives each province over its own territory. It is not the federation’s clause to surrender. Repealing it should require what using it requires: a two-thirds resolution from every provincial assembly. Anything less lets the centre and a parliamentary majority strip a province of a constitutional guarantee without that province’s consent.
New provinces are the wrong answer. They cost more, replicate the same centralised structure one tier lower, and leave the actual problem untouched. Pakistan’s local governments have been starved of tenure, resources, and authority by the very provincial governments that would now be multiplied.
The constitution already requires functioning local governments under Article 140-A. What it has never produced is a provincial government willing to honour that obligation. Fixed tenure, mandatory elections, full devolution of powers: that is the reform the 28th Amendment should deliver. It does not require redrawing a single boundary.
The writer is a lawyer.
