Strengthening Pakistan’s Senate to ensure ethnic and provincial equilibrium

Despite continuous demands of minority ethnic groups towards a stronger Senate to counter the dominance of Punjab in the National Assembly, the latest proposal is nothing more than a tactical political step by the ruling party in view of the 2018 elections, rather than a genuine acknowledgement of the need for reform. The establishment of a meaningful federation requires a move away from majoritarianism and towards power sharing and consensus-based democracy, and meaningful devolution of power to the provinces – writes Muhammad Zubair.

With the stated purpose of establishing a ‘true’, ‘meaningful’ and ‘participatory’ federalism in Pakistan, the Senate unanimously passed Resolution No. 305 on 13 February 2017. This followed similar earlier Senate resolutions No. 275 and No. 292 of 5 August and 19 December 2016.  The Senate Chairman recently asserted that constitutional amendments in line with resolution No. 305 will enhance the role and powers of the Senate to protect the rights of the provinces and will allow them meaningful participation in the affairs of the federation. These resolutions, while without any specific legal implications, represent a loose political consensus.  Indeed, the Leader of the House, mainly representing the Punjabi majority, moved Resolution No. 305, which received support from parties representing all major ethnic groups: Sindhi, Pashtun, Baluch and Urdu speaking Muhajir.

Resolution No. 305 recommends 11 amendments to different articles of the 1973 Constitution of Pakistan, four of which are claimed to be particularly crucial to achieving the objectives of the resolution. First, the proposed amendment would give greater weightage to Senate votes in joint sittings of the parliament while considering non-money bills. Each vote in the Senate will become equal to three votes of the National Assembly (NA). At present, all decisions at a joint sitting are taken by a simple majority vote, giving the NA significant advantages as it has more than thrice the number of members of the Senate.

Second, the proposed amendment will make it mandatory for the NA to inform the Senate of the reasons why its recommendations on money bills, if any, were not incorporated into such bills. Currently, the NA can simply disregard the Senate’s recommendations on money bills without giving any explanation and forward them to the President for final approval.

Third, the proposals give co-extensive powers to the Senate – along with the NA – for disapproving a presidential ordinance before the expiry of 120 days or extending it for another 120 days. At present, the constitution distinguishes between ordinances regarding money and non-money bills, mandating the NA to deal with the former, while both houses are involved in cases of non-money bills. The proposed amendment will do away with the distinction.

Finally, the resolution proposes that in the event of the federal government failing to announce the five-yearly National Finance Commission (NFC) award – which determines the share of federal revenue distributed to the provinces, the Senate can extend the previous one with the power of increasing shares of provinces in the federal divisible pool by 1%. It has been the practice of the federal government to extend the previous NFC award on a yearly basis in view of the difficulty in obtaining province-wide consensus on a new one.

Deferring a deferred dream

Notwithstanding the nationwide prominence of Islam, Pakistan is an ethnically diverse federation organized into four provinces largely coinciding with the four principal ethnic groups, and Federally Administered Territorial Areas (FATA). The Punjabis, the politically dominant group, constitute more than half of the population, while the Baluch, Sindhis, Pashtuns and Urdu speaking Muhajir represent the major minority groups. While all the main political parties claim or aspire to work towards cross-ethnic support, the diversity continues to foment group based insurgencies, conflict and violence. The ethnic composition has also influenced party and broad political mobilization, including calls for the reorganization of the number and boundaries of provinces.

Given the history of political struggle and demands of minority ethnic groups, the reform package contained in Resolution No. 305 is long overdue but offers too little – even if implemented in letter and spirit. For example, increasing weightage of Senate votes in parliamentary joint sittings will hardly change the highly centralized and majoritarian character of the polity that serves the interests of the demographically largest province of Punjab. In view of the current distribution of seats in the NA and Senate, in a joint sitting, the province of Punjab has 47% vote weightage, and the combined voting strength of the three provinces, the Federally Administered Tribal Areas (FATA), and the federal capital is about 53%. The proposed amendment will merely reduce Punjab’s voting strength from 47% to 39% and increase the combined percentage of the rest of votes from 53% to 61%.

In any case, the list of matters considered in joint sittings is largely insignificant, other than few functions, such as the impeachment of the president and declarations of emergency. In particular, money-bills are not referred to joint sittings in case of disagreement between the NA and the Senate. Such a reference remains the demand of minority groups. Obliging the NA to furnish reasons to the Senate for non-incorporation of its recommendations in money-bills will not produce any substantial results. It will not change the fact that the NA – a house where representatives from Punjab have a clear majority – will still have a final say on matters involving the national purse. The dominant role of the NA in money matters has led to the principal consideration of population size in the determination of the provincial revenue share in the federal divisible pool. Overall, the proposed reform will not satisfy minority demands for the Senate’s equal share of power in money matters.

Demand for a federal constitutional arrangement that is based on a social contract between the provinces as equal partners, irrespective of their territorial and demographic sizes, has been at the core of ethnic movements since the inception of the polity. A strong Senate, reflective of that federal equality and as an institution with essentially anti-majoritarian functions at the central level, coupled with devolution of substantial powers to the provinces, has remained central to their vision of a decentralized federal system. History bears testimony that refusal to accommodate these demands has led to political instability, civil wars, insurgencies and secessionism.

The NA debates in 1972-73, leading to the promulgation of the current constitution, show how the demands of minority ethnic groups for decentralized federalism, strong Senate and power-sharing institutional arrangements were crushed under the majoritarian steamroller. While the Pakistan Peoples’ Party, then led by Zulfiqar Ali Bhutto, a Sindhi, dominated the constitution making process, a political (mis)calculation to secure Punjab’s support to the party led to significant concessions essentially constitutionalizing the province’s domineering position. Punjabi parliamentarians could only provide verbal assurances to minority groups to trust their goodwill and not to be concerned about its dominant position in joint parliamentary sittings.

During the constitution-making process, the NA members from Baluchistan, being a minority with only five votes, were apprehensive that their concerns would be ignored. As the NA was acting as a unicameral constituent assembly under the interim constitution of 1972, they proposed that each bill – including the constitution bill – before the assembly must require the support of at least one-third of the members from each federating unit for it to become law. This proposal was made in view of the absence of a second legislative chamber which could have safeguarded provincial and ethnic interests. The proposal was rejected. It was argued that such a veto would hold the whole country hostage to five votes from Baluchistan. Similarly, demands for equal legislative power to the Senate were not adopted. The grant of provincial autonomy was deemed as a sure recipe for secessionism, while conveniently ignoring the fact that East Pakistan (now Bangladesh) had earlier seceded not because of the grant of provincial autonomy but denial thereof. Religion was used as a justification for majoritarianism, centralization and homogenization. The idea of Muslim nationalism and nationhood was promoted to push back against the demands of minority ethnic groups for recognition of their distinct cultural identities. Such demands were prejudged treasonous and part of a plan to further disintegrate the country.

Similarly, a unanimous proposal of opposition groups, mainly representing minority groups, to give equal financial powers to the Senate was rejected principally by Punjabi representatives, as was a proposal to refer money bills to joint sittings of parliament in cases of disagreement between the two houses – instead of the NA unilaterally passing it. Some Punjabi parliamentarians even proposed the abolition of the Senate, arguing that its existence would promote provincialism and parochialism. Still others proposed the extension of majoritarianism to the Senate by giving representation to the provinces based on population. Finding that none of its demands were met and left high and dry, the entire opposition walked away from the constitution-making process. Opposition groups hardly received any significant concession and only came back to the assembly on the last day when the constitution was adopted, leading to a false sense of ultimate consensus in the adoption of the constitution. Thus, the entire constitution was made in the absence of opposition groups ‘with the speed of 300 miles per hour’, as the then interior minister put it. The constitution was made on the strength of majoritarianism. It embodied majoritarianism. The absence of the opposition was ignored based on majoritarianism. And all meaningful reforms since then have also been prevented by majoritarianism.

A toothless resolution: The unlikelihood of constitutional reform

While significant, these resolutions do not have any binding legal status. As long as they have not been reformulated and approved as constitutional amendments, they remain ineffective, as were the previous resolutions. If the constitutional history of Pakistan offered another opportunity for correcting the past mistakes and establishing a consensus-based, decentralized, inclusive and meaningful federalism, it was when the 18th Amendment was negotiated in pursuance of the 2006 Charter of Democracy, signed by the major and minor political parties. However, as shown by the notes of reiteration/dissent included in the report of the Special Committee of the Parliament on Constitutional Reforms, 2010 – that led to the passing of the 18th Amendment – political parties from minority provinces made similar demands that were crushed by the majoritarian steamroller during the constitution making in 1972-73. Once again, they demanded inter alia: the strengthening of the Senate by giving it co-equal powers in terms of passing money bills and the Finance Act; holding of direct election of Senators by the people of the provinces through a system of proportional representation; giving Senate co-equal powers with the NA in the appointment of the prime minister and cabinet ministers, as well as in holding them accountable; giving Senate the power to make high appointments as well as ratifying treaties made by the federal government. Again, these demands could not be realized and became notes of reiteration because the ‘big brother’ was not ready to let go of majoritarianism.

Given the historical, political and constitutional context, and the reality of fully entrenched majoritarianism, the support to Senate Resolution No. 305 seems to be a non-committal political move by the federal government of Punjab-based Pakistan Muslim League (PML(N)) that seeks to keep together some of its coalition partners from minority ethnic groups till the completion of its current term that is going to expire next year. If the Senate could ‘unanimously’ pass the resolution, the agreement of representatives from Punjab being a major component of it, it hardly makes any sense why the current government would not forthwith proceed with passing the said amendments, despite having more than sufficient majority to do so. In view of the upcoming 2018 elections, the support of the ruling party to the resolution is nothing more than a show of good will, and at worst a cynical political move to win support in minority provinces. The proposed changes are unlikely to see the light of the day. Indeed, nothing has happened so far in furtherance of the resolution. It remains in cold storage, as were the previous such resolutions.

Towards ethnic power sharing and consensus-based democracy

The tall claims and lofty ideals of Resolution No. 305 notwithstanding, any move towards establishing a true, decentralized and participatory federalism in Pakistan will entail, amongst other things, the following basic steps. First, the multi-ethnic character of the Pakistan society will need to be recognized and the project of building a single nation abandoned. The cultural, ethnic, and linguistic diversities and identities of different groups will have to be respected and celebrated. Second, the edifice of federalism must be built on a social contract amongst the federating units based on equality, irrespective of their demographic and territorial sizes. Third, given the heterogeneous and pluralistic character of Pakistani society, there is a dire need for re-conceptualizing the model of democracy. A majoritarian conception of democracy will need to give way to power-sharing and consensus-based democracy. This would in turn entail provision of consociational institutions at the federal level and meaningful devolution of power to the federating units. As part of this larger scheme, the Senate will need to be given co-equal powers with the NA in both financial and non-financial matters. In addition, it would also be advisable to give the Senate some share in the executive powers of the federal government, including in the making of high appointments, in the ratification of treaties and in other matters affecting the whole federation.

Muhammad Zubair served as Assistant Professor of Law at the University of Peshawar, Pakistan. He is currently a PhD Fellow at the Maurer School of Law, Center for Constitutional Democracy at the Indiana University Bloomington. His areas of interest include constitutional design, public participation in constitution-making process, federalism, and ethnic conflict.