Since Partition, local governments and some system of self-rule remained in existence in Pakistan. After dissolving the elected governments, Gen Ayub revived local governments as the only representative tier of government under the Basic Democracies Ordinance, 1959 and the Municipal Administration Ordinance 1960.
The democratic regime of Zulfikar Ali Bhutto introduced the Punjab Local Government Act, 1975 which was subsequently repealed through the Local Government Ordinance, 1979 introduced by Gen Ziaul Haq; and during Gen Musharaf’s regime local governments were set up under the Local Government Ordinance, 2001.
All these laws, except the act of 1975, were enforced by military rulers primarily to engage people in non-party based electoral politics – with the strategy to ‘divide and rule’ by creating a new and competing class of local-level politicians. Local government bodies were there but no effective political and administrative authority was devolved upon them. However, the 2001 ordinance had certain features which made the law people-centric, devolution oriented and administratively effective.
The historic 18th Amendment provided constitutional cover to local bodies under Article 140A. This stipulation specifically obligated the provinces to devolve political, financial and administrative authority and responsibility to the elected representatives of local governments. For many, this article was an opportunity to decide the fate of the third tier of ‘the State’, as defined under Article 7, which had always been neglected by those holding power.
However, now the question of Article 140A’s precise and definite compliance and interpretation arises. There are, inter alia, three theories to interpret any constitutional provision – textual, contextual and rationale.
Textual compliance or interpretation is to obey or interpret what the text of any constitutional provision generally expresses. Apparently, Article 140A obligates the provinces to establish local government system through laws.
Punjab, for example, tried to lay down the law to establish local bodies in the province. And so the Punjab Local Government Act, 2013 was enacted and local bodies elections were held accordingly in 2015. This textual interpretation can be termed a right step in the right direction.
Contextual compliance or interpretation deals with a particular context in which any provision of the constitution is employed. Article 140A was inserted through the 18th Amendment, which introduces federalism – wherein sovereignty is constitutionally divided between federal, provincial and local governments. Hence, the said article has been introduced in the context of decentralisation.
Conversely, the 2013 act offers to establish a centralised Provincial Local Government Commission which is only answerable to the provincial government instead of elected representatives of local bodies. This law introduces a centralised bureaucratic style of local government instead of delegating authority and power at the grassroots level.
In addition, no mechanism has been provided for public accountability of elected representatives – the foundation of the local government system dependent on people’s participation and democratic values. The provincial government can issue directions to local bodies and shall later be bound to obey such directions. Thus, it does not absorb the particular context of Article 140A which leads to federalism.
Rational compliance of any constitutional provision means following the underlying doctrine of such stipulation. The rationale of Article 140A is to devolve political, administrative and financial responsibility and authority to the elected representatives of local governments. But the 2013 act disappoints when analysed in view of the rationale of Article 140A.
Under the PLG Act 2013, the provincial government retains with itself the power to curtail the term of any local body before completion of its tenure; the power to announce elections also lies with it. It also holds the power to suspend and dissolve local governments under certain conditions, defeating the principle of political autonomy as enshrined under Article 140A. The act undermines the political will of the people by rolling back a democratically elected local body through an executive action.
In view of fiscal autonomy, local bodies are very dependent on the provincial government. The PLG Act 2013 offers to establish the Provincial Finance Commission. Furthermore, local bodies can levy all or any taxes upon the direction of the provincial government and later may direct a local council to increase, reduce, suspend or abolish any such tax. The money credited to a local fund is kept or invested – on the instructions of the provincial government. However, some administrative functions have been devolved upon the representative of the local governments in rural and urban areas.
The provincial government has limited local bodies’ powers by regulating local funds and de facto controlling use of funds by issuing directions. The issuance of directions to local bodies with regard to their fiscal administration runs counter to fiscal autonomy and the democratic spirit of the constitution.
Thus, the law does not enshrine the rationale of Article 140A which guarantees people’s participation in the decision-making process and their inalienable right to govern. In fact, such a partial, dependent and controlled devolution of political, fiscal and administrative authority to local bodies ruins the doctrine and spirit of the said article.
In view of the above, it can be said that PLG Act, 2013 is merely a textual compliance of Article 140A. Neither does it look at the context nor does it adhere to the rationale of said constitutional command. In such a situation, serious questions arise.
Is the provincial government really keen to decentralise power or does it only wish to centralise it at the provincial headquarter? Can democracy without devolution play any role in achieving the contextual concept of federalism and rationale of decentralisation stipulated under Article 140A?
The writer is an advocate, and works for the Foundation of Law And Governance (FLAG). Email: mudassar.flaggmail.com