Silent coup

On Monday, April 30, 2019, a slim majority of the Punjab Assembly voted in favour of the Punjab Local Government Bill, 2019. The Punjab governor has signed this bill into law, as a result of which all the local governments operating in the various cities, town and union councils of the Punjab are set to stand dissolved. About 50,000 elected representatives will be sent packing. The powers of the third tier of our federation, local government, will stand transferred to its second tier, the province. This is no less than a coup by one tier of the federation against another – and, yet, it has drawn surprisingly little media scrutiny.

Buried in the 117-page document with 317 sections and 15 schedules are three crucial measures. First, the Act immediately dissolves all elected governments presently functioning in the province (Section 3). Second, it transfers powers previously enjoyed by elected local governments officials to “administrators”, ie bureaucrats to be appointed by the chief minister of Punjab (Section 127). Third, it provides a blueprint of a new elected system of local governance – a system which is to be set up at an indefinite time in the future, though hopefully within a year from now.

Whatever little public debate the Act has so far generated has been about the contents of the system promised in it. Commentators are asking: is it going to be similar to the Basic Democracies of the 1960s? Are directly elected mayors going to work better than indirectly elected ones, etc? These questions, in my humble view, are tantamount to jumping the gun. The new system is not here yet, it is only a promise. However, what has already happened is that the existing local government system, which was so reluctantly set up on account of repeated Supreme Court prodding, has been dismantled.

This situation raises a burning constitution question: are local governments an independent tier of our federation? If so, can local governments, in the middle of their tenure, be removed by another tier of government – ie the province? Is a government which can be removed at will really a ‘government’?

This question may have confronted our polity in the past too, but there is a compelling reason why the answer should be different this time around, and in favour of the continuity of local governments: Article 140A of the constitution. This provision, first inserted in the constitution in 2001, states: “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.” In 2010, the framers of the 18th Amendment not only retained this provision but further reinforced it by adding another clause: “Elections to the local governments shall be held by the Election Commission of Pakistan.”

Article 140A, particularly in its post-2010 form, has given rise to a respectable view in legal circles that the structure of our federation stands radically altered. What used to be a two-tier federation has now decidedly become a three-tier one. This view, first propounded in the judgment of a three-member bench of the Lahore High Court in Tiwana v LDA (PLD 2015 Lahore 522), authored by Justice Mansoor Ali Shah, is supported by four basic arguments.

First, the framers of Article 140A chose the term “local governments” instead of the term “local bodies”, which was used in earlier legislation. This suggests that the framers intended to elevate the status of local governments and bring it at par with that of the two other governments mentioned in the constitution: federal government (Article 90) and provincial government (Article 129). Secondly, the framers took away the responsibility for conducting local government elections from the provinces and instead vested it with the ECP. This reinforces the impression that 140A was meant to reduce provincial leverage over local governments.

Third, the Charter of Democracy, which provides key for deciphering legislative intent behind Article 140A, clearly states that “constitutional protection will be given to the local bodies to make them autonomous.” Last but not the least, Article 140A uses the term “devolve” instead of “delegate”. While a principal can reclaim delegated authority whenever it wills, devolution implies no such thing. It is, in principle, an irreversible process.

If the argument made by the Lahore High Court that local governments are an autonomous tier of the federation is accepted, PLGA 2019 is bound to be declared unconstitutional. There is no question about that. The logic is simple: if the PTI majority in parliament cannot, through a simple-majority legislation, be allowed to send packing the PPP government in Sindh, then how can the PTI majority in the Punjab Assembly be allowed to do this to the PML-N majority in local governments. That’s not how a federal constitution works.

It is true that the high court’s judgment was overturned upon appeal by the Supreme Court. But, contrary to popular perception, the Supreme Court’s judgment in LDA v Tiwana (2015 SCMR 1739) does not give provincial assemblies carte blanche in their dealings with local governments. To the contrary, the judgment clarifies that Article 140A cannot be interpreted in a way which makes it a “hollow constitutional promise” (para 35) and that after insertion of Article 140A, a province does not “retain the same wide legislative and executive authority that it did before its insertion” (para 35). While it upholds the constitutionality of the LDA Act, it over leaves the door open for striking down provincial legislation on the touchstone of Article 140A (para 56). It mentions a few things which provinces are allowed to do: “enlarge or diminish the authority of Local Government” and “extend or curtail municipal boundaries” (para 56).

Soon, many of the 50,000 toppled elected representatives of local governments, whose tenure has been cut short, will be knocking the door of the constitutional courts. The future of this weakest and historically neglected tier of the federation depends on whether its security of tenure will be protected. One hopes that the courts will step in to protect local governments from annihilation. Otherwise, Article 140A of the constitution would be rendered “a hollow constitutional promise.”

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

Email: umer.gilani@gmail.com