A tragedy that befalls the political system of many developing countries, including Pakistan, is the political intolerance towards a meaningful devolution of power and an acceptance for greater centralisation of power at federal and provincial levels. Pakistan’s history sets out a lamentable tale of occasions where local governments have been throttled with impunity. It is even more striking to observe that the last effective local government was installed by the military-led Musharraf regime, while the democratic government have so far consolidated powers either in the federal government or the provincial governments.
In an attempt to turn the tide away from a monopolistic federal-provincial power-sharing duo, the Eighteenth amendment has validated the Musharraf era’s Article 140-A. As manifested in Article 32 of the Principles of Policy, the framers of our Constitution had aspired for a flourishing local government system long ago in 1973. These principles, though not a part of the Constitution upon which an individual may challenge the validity of the laws; nevertheless, they serve as a crucial vantage point from which the entire theme of the Constitution can be envisaged. However, Article 140-A is revolutionary as it legally mandates the establishment of local governments in all of the Provinces. What was before a mere dream of the framers was given a constitutional robe of its own, at par with the federal and provincial governments.
Article 140-A reads as follows:
“Each Province shall, by law, establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.”
Just as Pakistan was entering the phase of federalism, based on a power-sharing formula involving the federal government, provincial governments and the local governments, a public interest litigation emanating from the honourable Lahore High Court made its way to the honourable Supreme Court of Pakistan. The judgment of the latter court in the case of Imrana Tiwana v Province of Punjab, which has come to define the ambit of Article 140-A, boldly re-asserts the dominance of the provincial government that was momentarily taken away by the honourable Lahore High Court. The catalyst that led to the determination of the scope of Article 140-A was the question as to whether, the Lahore Development Authority, a department of the Provincial government could carry out the construction of a large signal-free corridor or, conversely, it could exclusively be carried out by the local government.
The honourable Supreme Court held that the provincial assembly has an unimpeachable power to alter the functions allotted to the local government. The court stated that if the provincial governments found it necessary, they must have the power to divest the local governments of any of their functions. By doing so, they rejected the view of the honourable high court, which had barred the provincial government from abdicating certain core functions of the local government. The Supreme court’s legal premise was based on the stand-point that legislative power of the provincial assembly cannot be limited. The deficiency of this view is, if the Constitution has limited the authority of the provincial assembly from assuming the functions of the Parliament and vice versa, then it stands to question why the provincial assembly has been given unlimited legislative power over another independent third-tier of government? It becomes a paradox that on one occasion the Supreme court is advocating a system of co-equals while equipping the provincial government with the mighty power to denude the local government of any of its core functions under any circumstances.
The honourable Supreme Court held that the provincial assembly has an unimpeachable power to alter the functions allotted to the local government. The court stated that if the provincial governments found it necessary, they must have the power to divest the local governments of any of their functions.
Secondly, the honourable court does not go far enough to lay the circumstances under which the curtailment of functions of a local government will be justified by the provincial government. Without defining the proper scope for the curtailment of its powers, it may have re-invigorated the historic paternalistic attitude of the provincial governments against local governments.
Even more troublesome is another view of the Supreme Court that, the apportionment of functions between the local and provincial governments should be solely defined by them through political processes. Meanwhile, the court ought to show deference to the political process by refraining from interfering. The theoretical problem this observation presents is that the insertion of Article 140-A itself represents a blatant acceptance of the failure of our political system to execute our framers vision through political compromise, deal-making and dialogue. Had the preferred political settlement been solely sufficient for establishing a robust local government, there would not have been the need to establish local government a constitutional obligation after three decades. Furthermore, had political dialogue been adequate, the Punjab Government would not have belligerently proceeded to dissolve the elected local government in 2018.
Though the Supreme Court stressed the complementary nature of governance between the local and provincial governments. In reality with the great centralisation of power granted to the provincial governments, the weight has shifted in their favour. A fatal blow to the independence of local government is the autonomy granted to the Provinces to usurp the functions of their local governments to undertake development works if the public interest demands. This potentially means that the role of the local governments has been reduced to that of an elected advisory body, rather than as a self-governing institution.
The Lahore High Court founded a minimum regulatory framework within which provincial and local governments would co-operate. The honourable court provided a sound blueprint for balancing the interests of these intra-provincial governments. Even though it permits the need for intervention by the provincial government under limited circumstances, it discouraged routine intrusion, thereby grasping the real reason for the insertion of Article 140-A.
Imrana Tiwana must be re-visited by the honourable Supreme Court to usher a more robust and independent local government system into the political horizon of Pakistan. Until then, we must be mindful that the subservience of the local government comes at an abysmal cost of wavering the trust of the people in its democracy.
