ETHNIC CONFLICT AND THE FEDERAL FORMULA

While it is commonplace to state that Pakistan is a multiethnic society, it is also true that different ethnic identities have organised at different points in ways that reflect aspirations for either subsumption within the broader scheme of the Pakistani nation or as emergent nations themselves.

A. Ethnic Conflict in the Federation

Although it is impossible to account for the range of ethnic conflicts that continue to plague the project of federalism in Pakistan, two of these are described below. In Sindh, and to a great measure centred in Karachi, the province’s Urdu-speaking Muhajir community, which migrated at Partition, has been in an intractable conflict with the Sindhi population as well as newer migrants to the province. The aggregative logic of a federal formula that ascribes a unitary ethnic character to each of the provinces exacerbates tensions in Sindh. An absence of accounting for large minorities is reflected in other provinces as well, but with the salient difference that the Muhajir community has experi­enced a precipitous decline in its fortunes from Partition when all indi­cators suggested that it was a dominant minority within the federation. In its more organised forms it has employed militancy and also sought a meaningful role in politics at all governmental levels within the federa­tion to counteract the effects of such decline.

Ethnic strife in Balochistan has been of a different nature. In Balochistan, the primary conflict has been between ethnic Baloch and the state security apparatus, which is instrumental to the processes of resource-extraction and appropriation.

As noted in Chapter 2, several ethnic conflicts were brewing in West Pakistan at the same time that grievances in East Pakistan were gaining heightened expression. The economic development plans authored during the Ayub era had accepted the premise of functional inequality and not sought to mediate widening disparities even when they articulated with the existing sense of marginalisation by ethni­cally- and regionally-defined groups. The One Unit plan was oriented to the subsumption of minority groups and the fostering of a national culture that accepted the de facto dominance of a Punj abi-Muhajir alliance of power. Thus, groups in the West questioned the very basis of the federal compact as vehemently as it was being suspected in the East.

Immediately prior to the dissolution of the One Unit formula, both intra-group rivalry and greater organisation of peripheral groups and regions was impacting politics in West Pakistan. The Sindhi Language Movement, organised after the Muhajir migration at Partition, was a response to the cultural chauvinism that reinscribed the primacy of the Muhajir’s mother tongue, Urdu, in avenues of education and employment. While the tensions building in the rivalry between Sindhi and Muhajir would blow over into violent riots in the early 1970s, the ferment for group recognition was building in other parts of West Pakistan as well.

In the late 1960s popular regional leaders visited East Pakistan and agreed to militate for Mujibur Rahman’s six-point agenda calling for a limitation of federal powers. With the dissolution of the One Unit and the announcement of elections in 1970, a profusion of regionalist political parties looking to enter the electoral contest were established.^[428] A number of these, including the Jeay Sindh Naujawan Mahar.

The NAP-headed government in Balochistan acted quickly on pass­ing a reformative agenda inclusive of measures to enact affirmative action and development in aid of the native Baloch population. It also abolished the Sardari system in name although what that meant in practice was not fully clear.^[429] When the government began to bargain for greater control over its plentiful natural resources, Bhutto tried surreptitious forms of meddling to disturb the functioning of what had been an allied party to that point. Considerable unrest was taking place in Balochistan, particularly in Quetta where nationalist students were leading a campaign against Punjabi settlers. In 1973 the discovery of an arms cache in the Iraqi embassy in Islamabad, purportedly destined for Balochistan to aid in a planned insurrection against the central government, led Bhutto to dismiss the NAP government, dis­solve the party and accelerate a military operation in Balochistan.^[430] Another NAP government, this time in the NWFP, resigned in protest at Bhutto’s actions in Balochistan. This and succeeding events aided the dissipation of secular and progressive forces in these parts of the country. The Supreme Court upheld the ban on NAP, reflecting heavy central bias against political action organised on ethnic grounds.^[431]

The executive and judiciary have acted in synchronicity with one another to police the expressions of political grievance in regionalist terms. The regime of preventive detention was used extensively against figures such as GM Syed of Sindh and Abdul Ghaffar Khan of the NWFP. The act of organising on an ethnic basis was condemned as introducing fissiparous tendencies into the polity and the exercise of expressive and political rights readily negated when oriented to ‘liq­uidating the democratic state that has bestowed that liberty’.^[432] Such collusion ensured that these spokespersons of distinct brands of ethno-nationalism were kept in jail and away from politics for much of their lives.

Such policies of containment continued post-1973, so that many of the regionalist parties, aligned in an odd mishmash with religious and other rightist parties as the Pakistan National Alliance (PNA) to call for Bhutto’s removal.^[433] This then set the stage for their pacification by Zia after he assumed power from Bhutto in 1977. Such a pacification took different forms; the robust army action against Baloch nationalist insurgents was called off; other Baloch, Pakhtun and Sindhi national­ists, although freed from jail by Zia, thereafter either lay low or went into exile. In Sindh though, tensions rose nonetheless and the stage was set for a spiral of violence that continues to date.

These tensions were getting ever more stark through Bhutto’s reign, as Sindhis had enjoyed patronage by their ethnic kinsman,^[434] whereas the fortunes of Muhajirs were perceived as being in inexorable decline. Zia’s regime faced its most potent sites of resistance amongst Sindhi’s who came out to the streets in incredible numbers when the move­ment for the Restoration of Democracy made its protest calls in the early 1980s. On the other hand, Muhajireen youth disaffection organised in the call for an end to quotas for university admissions and official employment. In 1984 the Muhajir Quami Mahaz (MQM) was launched from what had been a student-based insurrectionary movement in promotion of greater Muhajir representation.^[435] Some ‘circumstantial evidence’ has linked the founding of the MQM to military funding and support.

The MQM^[436] was a formidable force when it entered the electoral arena in 1988, and yet the mainstreaming of the MQM and its associ­ated demands did not result in the deradicalisation of its militant wings. In 1994 the army was called in to break the MQM’s hold in pockets, where its powers were said to approximate that of a ‘state within a state’. Through combined police, paramilitary and army action, a few years of street warfare ensued in some of Karachi’s poorer areas.

As was also the case in Sindh, the freeing of political space and the restoration of democracy in the 1990s allowed nationalist parties and leaders to move into the mainstream for some time in Balochistan. However, they were less effective than the MQM in gaining political concessions at the centre so that the historical causes of insurgency, the highest unemployment and mortality rates and the lowest literacy and access to basic provisions, including healthcare and electricity, have continued in place.^[439] With renewed army rule under Musharraf, the ‘development’ of Balochistan through the intensive exploitation of its natural resources, backed increasingly by foreign investment, picked up pace. While state forces disengenously blame the sardars for keeping the province’s wealth to themselves and perpetuating the deprivation of the broader population, it is these same state forces that are enacting a silent war against the Baloch in this last decade through a campaign of murder and enforced disappearance.^[440]

B.

Having cited these two major ethnic/regional conflicts and their contin­ued play in Pakistan, we can also juxtapose some of the constitutional mechanisms that perpetuate rather than ameliorate these tensions.

Pure proportionality is a principle used repeatedly and to ill effect in some of the formal instruments of federalism in Pakistan. In a country where the population imbalance between different federating units is so vast that the most populous, Punjab, houses 55.63 per cent of the population and the least populous, Balochistan, is home to only 4.96 per cent, an adherence to this principle has yielded frightening consequences. In between these two, Sindh has 23 per cent and Khyber Pakhtunkhwa 13.4 per cent of the overall population. Furthermore, in spite of all evidence, an underlying assumption of national policy makers that each of the provinces has a homogenous ethnic character and no other cleavages worthy of recognition, is written into the quota regime as well as the fiscal resource scheme managed by the federal centre. Both of these have had direct impact on the continuance of the conflicts cited above as well as others that cannot be described here.

The quota regime presents something of a bridge between the for­mal and political aspects of federalism in Pakistan. This has been an issue of great political importance, as it impacts heavily on the compo­sition of the bureaucratic wing of what is an oligarchic power structure that includes, in addition, the military. While there was a push to align general army recruitment with ethnic representation at the national level, no formal ‘quota’ has been announced, nor has this kind of rep­resentation been realised. The Punjabi and Pushtoon preponderance is attested to by the fact of there being ‘no senior Sindhi or Baloch officers in the armed forces’.^[441]

Quotas for the bureaucracy confer the impression of reconciling diversity in this multi-ethnic state, but in fact fail to do so for the reasons elaborated below Following the secession of East Bengal and in tandem with the promulgation with the 1973 Constitution, this scheme was reframed in the following terms: 10 per cent merit; 50 per cent Punjab (including Islamabad); 7.6 per cent urban Sind (Karachi, Sukkur, and Hyderabad); 11.4 per cent rural Sind (areas in Sind other than those above); 11.5 per cent NWFP; 3.5 per cent Baluchistan; 4 per cent Northern Areas and FATA; and 2 per cent Azad Kashmir. As noted by Charles Kennedy, the reason why ‘this particular formula was chosen is open to conjecture’.^[442] Presumably it reflected the same politics of containment that had sought to dispense marginal bits of effective power and representation to provincial elites rather than seek­ing broader representation. Originally passed for the duration of a decade, this quota has been renewed every decade thereafter. In 2014, an official memorandum revised the formula so that the ‘Merit quota’ was decreased to 7.5% and Balochistan’s quota increased to 6%, whilst the other figures remained constant.

This national quota system enjoys constitutional indemnification against challenge in a somewhat roundabout way. Article 27 both bars discrimination in service and allows for ameliorative measures, yet nowhere specifically mentions ethnicity in either case. The first clause of Article 27 specifies that no citizen ‘otherwise qualified for appoint­ment in the service of Pakistan shall be discriminated against’ on the grounds ‘only of race, religion, caste, sex, residence or place of birth’. An exemption was provided, originally only for 20 years but in 1999 extended to 40 years, for posts to be reserved for ‘any class or area to secure their adequate representation in the service of Pakistan’. The official quota system of proportional representation was therefore the adequate level of representation being sought and thereby protected against challenge. Recently, through the Eighteenth Amendment Act, an additional clause enabling the Majlis-e-Shoora to enact any law to redress the under-representation of ‘any class or area’ has been added to Article 27. While no such legislative measures have been passed, it will be interesting to see whether and to what extent more robust initia­tives to redress historical under-representation of minority groups, eth­nically or otherwise, will be enacted in consequence of this allowance.

Thus far, the quota regime has failed to redress the grievances of the groups discussed above. In the case of Muhajirs, the official regime has been cited as a means to diminish their position in the federation. Spokespersons cite the lowering of the merit quota, which was 20 per cent prior to 1973, and the drawing of a distinction between urban and rural Sindh as means of shutting them out of positions in which they were historically over-represented. It is certainly the case that with a higher pure merit intake and with an aggregative rather than divided quota this primarily urban population was once more visibly a part of the governmental apparatus. For the Baloch, the fact of there having been significant internal migration within the country entails that a Punjabi or Pakhtoon person residing in Balochistan can take advantage of the quota which works on a geographical and not an ethnic basis. Without a specific counter-majoritarian intent in any case, the extreme marginalisation of the Baloch from centralised administration and policy-making will necessarily persist.

However, other important quota regimes exist officially at the level of provincial governmental services and at the point of entry to government-fUnded educational institutions. These more varied regimes have faced numerous constitutional challenges. Recently upheld at the Supreme Court in a case originating in Balochistan, reserved univer­sity seats for applicants from rural areas were deemed to be lawful. Although the judgment does not acknowledge the ethnic line as such, the logic of the ruling follows the establishment of the divided quota from Sindh, which provides an implicit acknowledgement that Sindhis reside in greater concentrations in rural rather than urban areas of the province.^[443] Across other provinces as well the representation of ‘disadvantaged’ groups is sought to be enacted through quotas that seek district-level representation or in other cases employ the category of a ‘tagged areas’ to demarcate sub-provincial regions considered backwards or impoverished.^[444] The constitutional safeguard for ensur­ing proportionate representation for the federal services is employed broadly in judicial reasoning to affirm that these classifications are in fact reasonable ones.

The fiscal transfer regime between the centre and the provinces has, until recently, followed a formula of population-based proportionality alone. This, the National Finance Award (NFC) is to be devised every five years by the National Finance Commission, established by way of Article 160. The taxation formula between the federal and provincial governments is outlined in the same provision and heavily favours the central government, which collects income tax, excise duties, import duties etc. In total, this has meant that the centre generates ‘90.7% of the total tax revenue with the remaining 9.7% collected in roughly equal proportion by the provinces and local governments’.^[445] With some variation dependent upon which headings of revenue collection are classified as capable of disbursement back to the provinces, the formula has been that close to 60 per cent of the central government’s total revenue collection is kept for its own uses and the remainder divided and transferred to the provinces.

As the pace was quickening towards an expansion of provincial pow­ers and the reallocations set in train with the Eighteenth Amendment, the formula for the NFC was also revised away from strict proportion­ality. From 2009 onwards the new formula provided that 82 per cent of resources allocated to the provinces were distributed according to population, 10.3 per cent for poverty/backwardness, 5 per cent for revenue generation and collection, and 2.7 per cent to account for the greater costs of development associated with low population density. The revised formula resulted in a 5.6 per cent reduction of the share of Punjab from the last consensus award of 1996. Punjab received 51.7 per cent, there was a 1.3 per cent increase in Sindh’s allocation to 24.6 per cent, a 1.1 per cent increase in KP’s share to 14.6 per cent, and a 3.8 per cent increase in Balochistan’s share, to 9.1 per cent.^[446]

The NFC reward provides the bulk of the revenue for the basic administrative functioning and the provisioning of services in line with matters over which the provinces exercise jurisdiction under the provincial legislative lists. To varying degrees, the complaint that the mechanisms of resource consolidation and transfer that the NFC rep­resents constitutes a drain upon the Muhajir and Baloch communities, has been expressed by these groups. Although tax generation remains abysmally low across the federation, it is nonetheless the case that the feudal character of the national political elite has ensured the mainte­nance of a broad exemption for the imposition of a tax on agricultural income. This protectionist bias in favour of agriculturalists maps eas­ily onto the sense of grievance that the urbane Muhajir foster. In the case of Balochistan, the inadequacy of an NFC award that measured population without accounting for poverty or for the expansiveness of territory was finally addressed in 2009. What meshes somewhat with the NFC transfer is the question of natural resource ownership and the enforcement of a formula for profit-sharing between centre and province.

The resource historically at issue for the Baloch has been natural gas, of which it is the largest and oldest supplier in Pakistan. The bulk of this is used up by the power sector but large shares also go towards powering industry and in general household consumption. Domestic supplies of energy resources in Pakistan fall far short of consump­tion needs and the cash-strapped central government has resorted to maintaining domestic supplies by a variety of coercive means.^[447] When the NAP government attempted to wrest this resource for provincial ownership in 1972, this served as a major provocation for Bhutto’s dissolution of the government. The Constitution of the following year offered the accommodation that there would be a direct repatriation of excise tax collected on gas resources back to the source province in Article 161. Further, Article 158 also provided that the source province would have ‘precedence over other parts of Pakistan in meeting the requirements’ of that province subject to ‘commitments and obliga­tions’ already undertaken prior to the date of the Constitution’s prom­ulgation. However, in reality, the resource has been on a succession of long leases to a consortium of centrally-owned governmental compa­nies, with purchasing rates set at an inordinately low rate. The central government has failed to pay the direct transfers that should have trans­pired from application of Article 161 and the payment of dues under the leases are ‘in arrears to the extent of tens of billions of rupees’.^[448]

In the year prior to the passage of the Eighteenth Amendment, the government engaged in an act of reconciliation through formal means and negotiations to ensure the Aghaaz—e-Haqooq-e-Balochistan (The Beginning of Rights for Balochistan). For months, a process of consul­tation, which was limited by the unwillingness to talk with members of nationalist parties, but claimed nonetheless fair representation accorded to ‘stakeholders’, was staged so as to render what would pass for a compromise solution to Balochistan’s reincorporation in the federation. While it made some acknowledgement of army heavy-handedness in dealing with the issue of missing persons, the centre nonetheless did not concede to a withdrawal of forces or even a curtailment in the long run of further construction of cantonments in the province. This, along with the emphasis placed on the development of the port town of Gwadar as a Special Economic Zone, and the initiation of mega projects including the building of dams, provides a truer indication of the manner in which the national elite political class still understands the incorporation of Balochistan to be as a region for the appropriation of resources and wealth towards an aggregate national good.

Nonetheless, with the passage of the Eighteenth Amendment in 2010, an altered Article 172 now provides that any new discoveries of gas or mineral reserves will be equally shared between the centre and that province. This seems a specific concession to the Baloch given the ongoing discovery of copper, iron and other mineral resources within its territory. Nonetheless, for concessions already in place, and espe­cially those that have attracted foreign investment, the central govern­ment has still struck bargains that offer the Baloch a nominal share of the earnings and profits.^[449] In an analogous case arising out of Sindh, the court provided only limited leeway to that province in light of pre­existing contracts and undertakings.^[450]

Thus altogether, the federal formula in the case of Pakistan has shown limited capacity to mitigate ethnic and regional inequity and conflict that is consequent upon it. The obstinacy of maintaining an official ‘blindness’ to inequality experienced by ethnic minorities moulds the working of other institutional technologies of governance, including the census. It has been noted that ‘Pakistan’s ethnic arithmetic is difficult to establish in precise terms because the official census has not contained a specific question concerning the mother tongue of individual respondents since 1961’.^[451] Although official policy dictates that a national census will be held every decade, there has only been one held in the last 35 years, in 1998. The absence of enumerative support for ethnicity-based claims works to undermine their efficacy.

That the intransigence of existing borders for provincial units can lead to heightened political conflict where the distribution of such resources is intra-provincially inequitable is a problem that plagues all of the provinces. Hence, the demand of the minority Seraiki- speaking community of Southern Punjab, the Muhajirs in Sindh and the Pakhtoon in Balochistan has been for the division of existing provinces to ensure both decision-making closer to the ground, as well as more equitable sharing of resources. While Zia briefly considered a plan that would divide the whole country into 21 administrative units, ensuring ethnic homogeneity in each, demands for division have gen­erally been rebuffed. The fixity is also explainable in reference to the formal constitutional structure. The maintenance of Pakistan’s provin­cial boundaries as they are from the making of the 1973 Constitution onwards presents a distinct contrast to the manner in which provincial units were consolidated as well as divided in India post-Independence. There, the imperative was to enable linguistic groups to be agglomer­ated within provincial boundaries. The constitutional formula for the recognition of new provincial units is also notably more relaxed there than in Pakistan. In India, a bare majority in the federal parliament plus the consent of the provinces concerned is sufficient to establish a new territorial and administrative entity. In contrast, the Constitution by way of Article 239(3) prescribes that a two-thirds majority plus a resolution of the affected provincial Assembly also passed by a two-thirds major­ity there must authorise such an innovation in political structure.

One final development to be noted in reference to the Muhajir and Baloch conflicts is that the Supreme Court in recent years has taken suo moto notice of the spiraling violence in Sindh and Balochistan and directed the federation to combat this violence in both cases. In the Karachi Law and Order case of 2011, the court paid special attention to the workings of the police. Citing a high officer from within the police forces, they quoted a figure of 30-40 per cent of police personnel being ‘non-cooperative either for the reasons that they have secured their appointments on political considerations or they have associated themselves with different groups including political parties, having vested interests in the affairs of Karachi’.^[452] The nature of such vested interests was described as including the promotion of ethnic or sec­tarian group interests or involvement and or abetment of extra-legal activities such as extortion, land grabbing, kidnapping for ransom, etc.

In the Balochistan Law and Order case, it is the federal government that is called upon to ensure immediate action under the Constitution to provide the security to the people of Balochistan.’ The discovery of ‘mutilated dead bodies’ as well as the need to investigate ‘missing persons, target killings, abduction for ransom and sectarian killings’ are tied to the fulfilment of constitutional obligations owed by both tiers of government to the people of Balochistan.^[453] The provincial government is directed to pay compensation to those affected by such violence. However, what is missing is a direct indictment or criminalisa- tion of the acts of military and intelligence agencies in the perpetuation of such violence.

VI.