Saturday January 29, 2022

Grassroots democracy

November 02, 2020

About two years ago, when Prime Minister Imran Khan was elected, in his first speech to the nation, he promised to foster a culture of grassroots democracy all over Pakistan.

Grassroots democracy was one of the main promises that convinced 1.7 crore ordinary Pakistani to vote for Imran Khan. It was a distinguishing feature of the PTI manifesto and on election day, it sold like hot cake.

Two years later, there’s a need for sober reflection on what has actually happened. So, let’s recap the facts here.

When the PTI came into power in 2018, there were functioning elected local governments in every one of Pakistan's five federating units. Yes, they were not as empowered as one would want them to be; but they were there. Then, on January 27, 2019, the tenure of Balochistan's elected local governments expired. No new elections were conducted; instead, the bureaucracy took charge. This would be the first of many coups against grassroots democracy.

Later in 2019, on May 3, around 57, 000 elected councilors in Punjab were sent packing and replaced with bureaucrats. On 28 August, 2019, the tenure of LGs in Khyber Pakhtunkhwa also expired; again, no elections. On 30 August, 2020, the term of Sindh’s LGs expired. On October 6, 2020, the mayor of Islamabad resigned. And on October 7, the federal government replaced elected Cantonment Boards with non-elected appointed ones. Today, as we speak, thanks to Imran Khan, there remain no elected local governments anywhere in Pakistan.

In every district and every province of this country, a civil servant is in-change of the third tier of government. In small districts, civil servants appointed by provincial governments, the deputy commissioners, now call themselves mayors. In a metropolis, commissioners have that honor. To sum up, in a period of less than two years, democracy has been abolished from an entire tier of the federation and replaced by bureaucratic Raj. What is most amazing is that hardly anyone has even noticed this creeping coup, this silent and systematic abolition of democracy at the grassroots.

While these are some rather grim facts, I am not left without hope for the resurgence of elected local governments. That hope primarily emanates from the constitution of Pakistan.

Back in 1949, when the framers of the Objectives Resolution promised that the “state shall exercise its powers and authority through the chosen representatives of the people,” they were not talking in a vacuum. They meant something. They envisaged a transfer of power from the equivalents of ICS officers to elected political leaders at all levels of government – local, provincial and federal. That promise of grassroots democracy was at the very heart of the ideology of Pakistan, which was presented in the Objectives Resolution and subsequently encapsulated in the constitution.

Article 140A was inserted by General Musharraf in 2001 and reinforced by the framers of the 18th Amendment. This pivotal provision of the constitution represents a fundamental shift. It specifically commands: “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.” It is now mandatory for the provinces to “establish” elected local “governments” and to “devolve” political, administrative and financial “authority” to them. For as long as this provision remains a part of our constitution, a coup against grassroots democracy of the sort which has just taken place can never last very long. While the de facto situation is undeniable and grim, there is still some hope because the bureaucratic Raj does not enjoy constitutional legitimacy. The de fact has not yet become de jure.

Last but not the least, there are judicial precedents out there which give us hope for a resurgence of elected local government structure, even after their recent decimation. In Imrana Tiwana v LDA (PLD 2015 Lahore 522), headed by a three-member bench of the Lahore High Court, the full potential of Article 140A was realized. Authored by Justice Mansoor Ali Shah, one of Pakistan’s most eminent constitutional jurists in recent history, this judgment points out that since Article 140-A uses the term ‘devolve’, not ‘delegate’, it represents an irreversible transfer of rights. Once elected local governments have been empowered, they cannot be dis-empowered, not even for one day. It follows that dissolving local governments in mid-tenure and endlessly delaying fresh LG elections while governing districts through bureaucrats is no longer a legally tenable option for the provinces.

Justice Shah also pointed out that Article 140-A uses the term ‘local governments’, not ‘local bodies’, which suggests a legislative intent to make local governments a full-fledged, independent tier of the federation. You can’t delete an entire tier of the federation through your acts and omissions – which is exactly what has been done in the last two years. The cycle of dissolutions which has long characterized elected local governments in Pakistan is now supposed to stop; at least that was the spirit of Article 140A.

It is a sad part of our history that when this illustrious judgment reached the Supreme Court on appeal, it was reversed on facts. But in so far as the far-reaching legal conclusions go, they were not all reversed. Even the Supreme Court’s judgment (2015 SCMR 1739) clarifies that a province does not “retain the same wide legislative and executive authority that it did before its insertion”. The Supreme Court assured that the promise of local democracy enshrined in Article 140-A would never be allowed to become a “hollow constitutional promise”. One hopes that the court will now deliver on its promise and not abandon the cause of elected governments.

Building elected local government structure and de-centralizing power were an integral part of the ideology of Pakistan. While the inheritors of the bureaucratic legacy of British India might not value this idea, it is incumbent upon us to continue striving for it. Who knows, one day, we might even win!

The writer is a partner at The Law and Policy Chamber.