Governance, bulldozer style

January 12, 2014

Governance, bulldozer style

Whatever else you may accuse Chief Minister Shahbaz Sharif of, you cannot fault him for lack of ambition. For excessive ambition, however, he clearly seems to be at fault. And yes, when you have to act according to parameters laid down by the law, too much ambition is hazardous.

Sharif’s provincial government has recently piloted through the Punjab Assembly a most disturbing piece of legislation: Lahore Development Authority Amendment Act, 2013. It amends the LDA Act, 1975 but does so in ways, as per my view, unconstitutional. Worse, it irreparably damages the dream of democracy filtering down to the grassroots.

Thanks to this legislation (LDA Amendment Act, 2013), we can say goodbye to local government in the entire Lahore Division -- yes, I said Division. The LDA now has powers not just over the Lahore City District but the entire Division.

Troubled if you live in Sheikhupura or Kasur? Wait till you hear more.

The LDA, after the recent legislation, is now an all-powerful authority that shall decide fates of people or entire cities (as long as they fall within Lahore Division) when it comes to master planning, land classification, zoning, land use etc. These functions earlier rested with your elected local government representatives. If you disagreed with how they approved a master plan or classified land, you could vote them out. Now, your zila or town municipal administration will be rendered powerless.

Furthermore, the constitution of the LDA itself has been changed.

Earlier, the zila nazim Lahore was the Chairman of LDA. After the recent amendments, guess who heads the LDA? You are right, the CM Punjab himself! He wants to shape Lahore the way he wants when he wants. This is governance bulldozer style -- pun intended, since we are talking about the LDA. Notice also that the legislation in Punjab on local government envisaged that control of ‘Development Authorities’ shall vest with local government. Till now, composition of LDA reflected this.

Sharif’s provincial government has piloted through the Punjab Assembly a most disturbing piece of legislation: Lahore Development Authority Amendment Act, 2013. It amends the LDA Act, 1975 but does so in ways unconstitutional.

Earlier, all town nazims of City District Lahore were automatically represented on the LDA. Now, after the LDA Amendment Act, 2013 the CM will ‘appoint’ chosen local government representatives. Notice the shift of power -- from zila nazim Lahore and automatic representation of all town nazims to CM Punjab and his chosen few. So, your role as a member of the electorate for local government or as an office-holder will now be extremely limited. It just sounds wrong. Worse, for the provincial government, it sounds unconstitutional. How so?

After the 18th Amendment to the Constitution, we added Article 140A to the Constitution. The said Article clearly envisages, and indeed represents a constitutional command, that political, financial and administrative "responsibility and authority" shall vest with the elected local government representatives of the people. It commands an effective system of local government where locally elected representatives are the decision-makers over matters affecting lives of people living within a particular unit of local government.

I would also argue that another limb of Article 140A is that it not only gives power to local government, it also limits the power of the provinces by commanding them that they cannot render ineffective the local government set-up. The power envisaged by the Constitution, the "responsibility and authority", is real power and not just an eye-wash that can be snatched back because someone fancies an individual’s vision over that of locally elected representatives.

Prior to the 18th Amendment, Article 32 carried a reference to local governments. However, Article 32 falls under the Principles of Policy which, at least for the most part, have been deemed by the courts to represent aspirational guidelines, i.e. you cannot seek the legal enforcement of principles of policy through a court judgment (unlike Fundamental Rights) because principles of policy guide but do not necessarily legally bind the State. They traditionally are not, strictly speaking, legal standards which can be invoked to challenge legislation or demand greater rights.

Article 140A changed that since it is not a part of principles of policy. It moved the empowerment of local government setup from an aspiration to a constitutional command. The LDA Amendment Act, 2013 not only takes away powers of the local government and hands them over to LDA, it also changes the composition of LDA to make sure that local government representatives are, for the most part, excluded from it.

This is only the tip of the iceberg in the offending legislation that is the LDA Amendment Act, 2013. There are other enormous and glaring problems with it: all fees for services provided by local government will now go to LDA -- since it will be performing those services regarding land use, classification etc. Money is power for a government and taking away money means taking away power.

Furthermore, if the LDA (which now covers the entire Lahore Division) decides to acquire your land, you can only raise objections before a tribunal that is hand-picked by the Government of Punjab. Say goodbye to impartial adjudication or independence of judiciary. A civil judge will be appointed president of the tribunal by the provincial government with no involvement, control or supervision of the judiciary.

Two other members will also be appointed and these people who will be adjudicating your objections regarding acquisition have no real security of tenure. Moreover, their remuneration shall be paid by the LDA. So, basically, you will challenge the actions of a body (LDA) before a tribunal that is paid by (wait for it) the LDA and the ‘new’ LDA is headed by who? The CM Punjab and he can remove the tribunal’s members. To be precise, he can dissolve the entire tribunal. Sounds too good to be true? Well, that is how the CM wants it. And he might have gotten away with it had all of this not been so glaringly unconstitutional.

But he still might get away with it -- unless we raise our voices.

If the personal is political then local government power, in essence, is the epitome of political power. The increasing amount of litigation regarding local governments is taking place precisely because of the political stakes involved. And it does not get more powerful in terms of stakes than it does in Lahore. That is why the younger Mr. Sharif wants to build (or construct) the entire Lahore Division as per his vision.

And what about those living in Sargodha Division and not the Lahore Division? They continue benefiting from local government set-up while there is a special body that controls the local government’s powers in Lahore Division. That too is patently discriminatory and, in my view, unconstitutional.

Keep in mind that local government units in Lahore Division will not be ‘officially’ abolished -- they will continue to exist. But their most significant powers and fees will go to the LDA. Therefore, the provincial government has done what we in Pakistan do best: let a law exist but devoid of its meaning. And the way that it has been done in this case is legally and, more importantly, politically repulsive. No changes to the local government legislation have been made. A separate law (LDA Act, 1975) has been amended through LDA Amendment Act, 2013 to create a behemoth that is now all-powerful.

As Pakistan continues its increasingly engaged flirtation with democracy, local governments have a particularly important role to play. They must be empowered. If those heading the Punjab Government disagree, they can seek to amend the Constitution. Till such time that they do amend it, they must live by the bargain struck by the Constitution.

As much as the younger Sharif is driven by ambition, his lawyers need to tap him on the shoulder and wave the constitution to catch his attention. One can only pray that he will listen to them.

Governance, bulldozer style