ISLAMABAD: The Supreme Court has declared Sections 74 and 75(1) of the Sindh Local Government Act of 2013 against the principles enshrined in the Objectives Resolution and the fundamental rights enacted in Articles 9, 14 and 25 of the Constitution.
A three-member bench headed by former chief justice Gulzar Ahmed and comprising Justice Ijazul Ahsen and Justice Mazhar Alam Khan Miankhel issued a detailed verdict on the petition of the MQM (Pakistan) and others.
The apex court had reserved the verdict on Oct 26, 2020, and later on Feb 1, 2022, had announced the verdict.
On Saturday, the 58-page verdict authored by former chief justice Gulzar Ahmed held that Sections 74 and 75(1) of the Sindh Local Government Act, 2013, were also contrary to and in direct conflict with Article 140A of the Constitution and thus, declared ultra vires and struck down.
The MQM-P had filed a petition in the apex court under Article 184 (3) of the Constitution, praying to declare Sections 74 and 75 of the Sindh Local Government Act, 2013 and Section 18 of the Sindh Buildings Control Ordinance, 1979, to be completely without jurisdiction, illegal, unconstitutional, void ab initio and of no legal effect while striking down the same.
It had further prayed the apex court to declare that "Authority" under Section 4 of the Sindh Buildings Control Ordinance, 1979, for each territorial jurisdiction falling under the local government institutions, shall be the mayor or the chairman as the case may be, of such local government institutions, while annulling all dispensations, statues, notifications, rules, delegated legislations or executive orders in derogation to such declaration as ultra vires to law and the Constitution.
The detailed verdict while agreeing with the operative part of its judgment in Imrana Tiwana’s case disposed of the MQM-P petition and held that elected local governments were presently not in existence in Sindh, adding that the provincial government through its agencies was performing their duties and functions.
The court held that in the vacuum resulting from the absence of an elected local government in Sindh, the initiation, approval and execution of any of the duties and functions of the elected local government were allowed to be carried out by the provincial government and no new project following within the domain of the elected local government shall be undertaken by the provincial government or its agency without prior consultation and consent unless withheld without justified reasons, as the case may be of the elected local government in respect of such project.
The court further held that Article 140A of the Constitution of Islamic Republic of Pakistan casts a mandatory obligation on the provinces to establish local governments possessing meaningful authority and responsibility in the political arena, administrative and financial matters.
“It is the duty of a province through the provincial government and the provincial assembly to purposefully empower local governments in the province so as to comply with their mandatory obligation under Article 140A of the Constitution”, says the verdict.
The court held that the powers in relation to master plan and spatial planning which historically belongs to the elected local government have been superimposed with similar functions vesting in the provincial laws.
“To the extent of conflict in the exercise of their respective powers and functions by the elected local government and the statutory authorities or on account of legal provisions having overriding effect, Article 140A of the Constitution confers primacy upon the authority vesting in an elected local government over the powers conferred by law on the provincial government or agency thereof”, says the detailed verdict.
Notwithstanding the above, the court noted that the provincial government in any case was "under a duty to establish harmonious working relationship with an elected local government" wherein respect is accorded to the views and decisions of the latter.
“Thus, the laws made by the provincial government i.e. the Sindh Building Control Ordinance, 1979, KDA Order No.5 of 1957, Malir Development Authority Act, 1993, Liyari Development Authority Act, 1993, Karachi Water and Sewerage Board Act, 1996, Hyderabad Development Authority Act, 1976, SehwanDevelopment Authority Act, 1993, Larkana Development Authority
Act, 1994, any dispensation pertaining to the Board of Revenue or the Master Plan Department or any other Development Authority in the province of Sindh and the
Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environmental Protection Agency Act, 2014, purporting to override and conflicting action taken by an elected local government were held to be against the scheme of the Constitution and the provincial government was directed to bring all those laws in accord with the mandate of Article 140A of the Constitution”, the verdict held.
The court directed that the Sindh government shall ensure that all local governments in the province do get their share in the divisible pool of funds by implementing the Provincial Financial Commission Award and also to ensure that no arrears in this regard are accumulated and if, there are arrears, the same are released.
The court noted that the Sindh advocate-general had contended that no sufficient measure had been brought on record by the petitioners to invoke the jurisdiction of Article 184(3) of the Constitution and such jurisdiction should not be exercised by this court and the petitioners be asked to approach the high court in the first instance.
He contended that the Sindh government had fully complied with Article 140A of the Constitution by promulgation of the Act of 2013.
The court further noted that the Sindh advocate-general had further contended that Article 140A only required a province by law to establish a system within which a local government shall function and keeping in view the said system, devolve corresponding political, administrative and financial responsibility and authority to the elected representatives of the local governments.
He contended that the Act of 2013 had complied with the mandate of Article 140A adding that the petitioners by this petition have sought a change in the system established by the Act of 2013, which objective can best be achieved through political means and not through judicial intervention, says the verdict
The court further noted that the learned Attorney General for Pakistan, on the other hand, had given his valuable suggestion that where the local government system was made more vibrant, through consultative process between the provincial government and the local government.
