Legal debate intensifies over new provinces
As some senior government functionaries strongly advocate creating new provinces to improve governance, a debate intensifies among legal experts and political leaders over the constitutional procedure required to establish new administrative units.
Former additional attorney general Waqar Rana said the Constitution of Pakistan contains no express provision for creating new provinces.
"The Constitution of India, on the other hand, specifically provides for establishing new states under Articles 2 and 3. Article 239(4) of the Constitution of Pakistan caters only to the limited issue of altering the limits of a province," Rana said.
He explained that Section 2 of the Indian Independence Act, 1947, stipulated that Pakistan comprised certain provinces and areas, expressly referring to the existing provinces.
According to Rana, the proper legal course would be to amend the Constitution by first inserting an express provision for creating new provinces and then proceeding accordingly.
"For such an amendment, resolutions passed by a two-thirds majority of every provincial assembly would be required. Some legal experts have wrongly suggested relying on Article 1, which has nothing to do with creating new provinces," he said.
Rana said the federal government could seek an advisory opinion by filing a presidential reference before the Federal Constitutional Court (FCC), but cautioned against relying on such a mechanism.
"A question of such great importance and far-reaching consequences must not hinge on an advisory opinion of the FCC," he said, adding that the issue was fundamentally political and the courts should avoid entering the political arena.
He also argued that concentrating political power could only be addressed by empowering people through education and economic development.
"Uttar Pradesh has a larger population than Punjab, so population alone cannot justify creating new provinces. Pakistan's economic problems have nothing to do with the number of provinces; they stem from the misuse of public funds," he added.
Pakistan Bar Council member Barrister Salahuddin Ahmed said the proposal appeared politically unfeasible given the strong public sentiments surrounding it.
He said, under Article 239 of the Constitution, creating new provinces would necessarily alter the boundaries of existing provinces. Therefore, it would require a two-thirds majority in the relevant provincial assembly as well as two-thirds majorities in both the Senate and the National Assembly.
"Those pushing this proposal may instead seek to amend Article 239 itself through Parliament and remove the requirement of approval from the provincial assembly altogether," he said.
Ahmed further pointed out that following the 27th Constitutional Amendment, Article 239(5) now states that, notwithstanding anything contained in the Constitution or any judgment of any court, no court shall have jurisdiction to question a constitutional amendment on any ground whatsoever.
Former senator Mustafa Nawaz Khokhar said there was a pressing need to initiate a national debate on the necessity and benefits of creating new provinces.
"However, when a government that lacks public trust and a non-representative assembly takes up such a sensitive issue, controversy is inevitable. Even the government's coalition partners taunt it by referring to 'Form 47'," he said.
Khokhar urged the government to hold free and fair elections and allow political parties to include their positions on new provinces in their election manifestos before seeking a democratic mandate. "Only then will this debate become meaningful and productive," he added.
Former federal minister Fawad Chaudhry supported the idea of creating provinces on an administrative basis, saying it would promote the devolution of resources. "That is certainly a step in the right direction," he said, while cautioning that the issue had deep historical roots.
He referred to the 1911 partition of Bengal, the 1947 division of Punjab and Bengal, the creation of the One Unit and its eventual abolition as examples of decisions whose consequences lasted for decades.
"The concept itself is not the problemthe devil lies in the details," he said.
"The real issue is how the establishment can secure the support of political forces, particularly nationalist groups, for such an arrangement. The process is fraught with dangers and should not be left to political minions who lack political understanding and public service experience."
Advocate Maha Raja Tareen said good governance remained the foremost responsibility of any government and its failure often led to social unrest.
"Unfortunately, good governance is a far-fetched reality in Pakistan today. Merely creating additional administrative units will not alleviate the suffering of millions unless those units are fully empowered to deliver social justice at people's doorsteps," she said.
Independent Lawyers Group head Ahsan Bhoon strongly supported creating new provinces.
A senior lawyer said a referendum under Article 48(6) could not override the requirements of Article 239, adding that any such proposal would still require constitutional approval through Parliament.
Barrister Taimur Malik said the central issue was not whether Pakistan should adopt a parliamentary or presidential form of government, strengthen federalism or expand local governments.
"The real question is not which constitutional model is theoretically superior. History shows that almost any constitutional model can succeed when institutions are credible, and almost every model can fail when they are not," he said.