Will the dissolution stick this time?
Few people in the urban intelligentsia have noticed the massive rollback of devolution which has resulted from the passage of the Punjab Local Government Act, 2019. The Act has dissolved all the local governments operating in the villages, towns and cities of the Punjab, even though they had completed only half of their five-year legal tenure. About 58,000 elected local government councilors have been sent packing, while their powers stand transferred to a few dozen hand-picked bureaucrats known as “Administrators”. This coup against local governments has drawn surprisingly little media scrutiny. If institutional development really mattered in our public discourse, this would have been the hottest controversy of the day.
While dissolving existing local governments, the 2019 Act also provides the blueprint of a new system of local governance. But legally astute readers will notice that nowhere in the 107-pages-long Act do we find a date for the setting up of the promised, new, rosy system. A statement by the Election Commission of Pakistan reported in the press on May 9 suggests that a new elected regime is unlikely to take shape for at least one more year. In the meanwhile, however, the authority which the government in Lahore had so reluctantly and belatedly devolved to local governments in 2017 has been reclaimed. In 2019, Punjab is once again back in the age of centralized, bureaucratic rule.
The future of local governments in Pakistan now depends on whether the courts will act to secure the tenure of local governments or let the vicious cycle of dissolutions continue
The roll-back of devolution by provinces is nothing new. My review of Punjab’s legal history suggests that this is the 10th time since 1972 that a new local government framework has been brought in and the old one scrapped. But for one new variable in the equation, this vicious cycle is likely to continue. That new variable is Article 140A of the Constitution– a hitherto largely untested constitutional guarantee which gives us some reason to hope that, this time around, the toppled local governments might be restored.
Article 140A, 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.” In the context of the present controversy, there are four aspects of Article 140A which are worth highlighting.
First, it uses the term “local governments”, not “local bodies” which was in vogue in earlier legislation. Clearly, this points towards a legislative intent to elevate the status of local governments and bring them at part with the two other governments mentioned in the Constitution – Federal Government and Provincial Governments.
Secondly, Article 140A uses the term “devolve”, not “delegate”. While delegation implies a continuing principal-agent relationship, devolution implies no such thing. Devolution refers to an irreversible transfer of rights. The term has been used in at least two other articles of the Constitution – Article 63 and 274 – and everywhere it has same meaning: it can’t be reversed.
Third, now that the Constitution commands (not simply permits) the provinces to “establish” local governments, how can they get away with doing the very opposite: dissolving local governments and reclaiming powers already devolved?
Last but not the least, by taking away the responsibility for local government elections from the provinces and vesting it in the ECP, Article 140A clearly shows a legislative intent to reduce provincial leverage over local governments.
These revolutionary aspects of Article 140A were first flagged by a three-member bench of the Lahore High Court headed by Justice Mansoor Ali Shah. In a case reported as Tiwana v. LDA (PLD 2015 Lahore 522), the Court adopted the argument that after the insertion of Article 140A, local governments have become an independent tier of the federation. Going by this precedent, the dissolution of local governments in mid-tenure is bound to be declared unconstitutional. Just as the Constitution does not allow Parliament to topple the Provincial Governments, it doesn’t allow the Punjab Assembly to de-seat local governments in mid-tenure – at least, not after 140A.
It is true that the High Court’s judgment was overturned on appeal. But, contrary to popular perception, the Supreme Court’s judgment in the case has not given carte blanche to provincial assemblies in their dealings with local governments. The judgment reported as LDA v. Tiwana (2015 SCMR 1739) clarifies that after the insertion of Article 140A, a province does not “retain the same wide legislative and executive authority that it did before its insertion.” (para 35) The Court left the door wide open for striking down future provincial legislation on the touchstone of Article 140A (para 56). While it mentions a few things which provinces can still do– “enlarge or diminish the authority of Local Government” and “extend or curtail municipal boundaries.” (para 56)– nowhere did it condone total dissolution.
In the Tiwana case, the Supreme Court assured the people of Pakistan that the promise of devolution enshrined in Article 140A will not be allowed to become a “hollow constitutional promise.”(para 35). Emboldened by that promise, many of those 58,000 toppled elected representatives have started knocking at the door of the constitutional courts. As the day pass, more will join this fraught battle between local governments and Pakistan’s largest, most authoritarian province. The future of local governments in Pakistan now depends on whether the courts will act to secure the tenure of local governments or let the vicious cycle of dissolutions continue.