News Analysis: Will a constitutional amendment be needed?

KARACHI: The provincial seat composition in the National Assembly will not change per the census results, says the government. The question of a change in the composition of the National Assembly had initially been floated due to an increase in the population growth rate of Balochistan in the earlier provisional figures provided by the Pakistan Bureau of Statistics — which would have led to an increase in Balochistan’s seats in the National Assembly. The final results of Census 2023 do not have the figures given in the provisional results.

Speaking to The News, Special Assistant to the Prime Minister on Interior and Legal Affairs Attaullah Tarar clarifies that: “The composition in the National Assembly per province will not change”. He cites two main reasons behind this stance of the government, the first being that “to change the composition of the National Assembly seats you need a constitutional amendment. This is because the number of seats has been specified in the constitution”.

Tarar reasons that “if it has to be done it can’t be done without a constitutional amendment”, adding that there is/will be no assembly to do that and “if an amendment is needed it will be done for some other election. I don’t think a constitutional amendment is possible at this point”.

The second reason for not changing the National Assembly composition is that “the population of the provinces has increased in parity with each other; there is no radical increase anywhere”, says Tarar. “So I don’t see the composition/allocation of seats changing. He adds that “while the number of seats will remain the same [in the National Assembly], boundaries are likely to change within the provinces”.

Law Minister Azam Nazeer Tarar had also earlier on Saturday told Geo News that the Census 2023 results show that provinces’ share in the general seats of the National Assembly will not change in the next elections.

The matter of whether a constitutional amendment would be needed in case of a radical change in population figures in a province is not that simple though. Supreme Court advocate Salman Akram Raja tells The News that there is a precedent regarding the change in the composition of the general seats in the National Assembly: “in 2018 they amended the constitution to reflect the result of the 2017 census. Now people are arguing that on the basis of the fresh census somehow the ECP can [change the seat composition] on its own without having to amend the constitution.”

Raja says that two articles of the constitution are relevant here: Article 51(3) and Article 51(5). According to Article 51(5), “The seats in the National Assembly shall be allocated to each province and the federal capital on the basis of population in accordance with the last preceding census officially published”. Raja says in this context, “the question does arise whether this is an automatic provision for the ECP to give assent to [the change in composition of the National Assembly] or does it need an constitutional amendment?”

He feels that “There are arguments on both sides of the debate”. For one, “if the argument supposes an automatic provision, then why did we amend the constitution in 2018? When Article 51(3) says the composition of the National Assembly shall be as follows, is it somehow subservient to 51(5)? An argument can be made.”

Former president of the Sindh High Court Bar Association Barrister Salahuddin Ahmed says that, while “under Article 51(3) the actual number of seats for every province (in the NA) is prescribed, there is also Article 51(5) which says the seats will be adjusted in accordance with the last preceding census”.

For him, that means that “if one takes the interpretation that a constitutional amendment is required to change the seat allocation of provinces in the National Assembly then Article 51(5) becomes completely redundant. I mean, if you have to amend the constitution then it makes no sense to say that the seats will be readjusted as per the last preceding census.”

What would be a way out then? Barrister Salahuddin thinks that “a better interpretation is that Article 51(3) sets out the number of seats as per the 2018 elections and thereafter Article 51(5) comes into play for all subsequent elections”.

Elaborating on just why he feels a constitutional amendment wouldn’t make sense here, Ahmed explains that “getting two-thirds majority [in parliament] is rare. What if for the next 20 years no one is able to cobble up a two-thirds majority? It doesn’t make sense that we need a constitutional amendment for this.”

Ataullah Tarar adds to the debate with the reiteration that “while Article 51(5) is a valid point, when you read the constitution because [you see that] the number of seats [in the NA] are specified you can’t just change them just by virtue of the census. The census has a lot of consequences. One is delimitation and the other is the composition of the National Assembly. While the ECP conducts the delimitation, the composition of seats can be done by a constitutional amendment.”

On Saturday, the Council of Common Interests had ‘unanimously’ approved the 2023 census -- with the ‘consensus’ of all four chief ministers and representatives of all political parties.

Responding to whether caretaker chief ministers have the right to approve a census or be part of the CCI in such matters, Salman Raja says that “it is very clear that caretaker CMs have only one function: to conduct elections. The CCI is supposed to give voice to all the provinces. How can they when 66 pcnt of the population is under CMs who are not elected? They don’t represent anybody.”

Barrister Salahuddin Ahmed is of the view that per a “judgment of the Supreme Court, the caretakers will only conduct day-to-day and routine matters. Would a CCI approval be considered a routine matter? I don’t know. This would be an open question.”

For Raja, the issue goes deeper and beyond the allocation of seats in the National Assembly, raising questions over the composition of the CCI “since 66 pcnt of the population is unrepresented -- with caretaker CMs sitting beyond their tenure. This is just a mess”.

He asks: “Why did [the government] delay this [census matter] till now? This could have been done in March or April. This was done strategically. They didn’t hold elections to the assemblies then.” He adds that “now there is a joke going on also with the substance of the census”, alluding to the changed numbers in the final census results.