A coup against local governments?

Local government laws in the Punjab and Khyber Pakhtunkhwa have been altered massively and unilaterally. Farhatullah Babar explains how

A coup against local governments?
In the midst of almost daily hot news of arrests of opposition leaders by the National Accountability Bureau (NAB), the latest being that of former president Asif Ali Zardari, attention has been diverted from the dismal state of the economy, inflation, unemployment or the simmering discontent in tribal areas which have forced postponement of elections due on July 2. A silent coup carried out against the local governments in the PTI-ruled provinces of the Punjab and Khyber Pakhtunkhwa (KP) also seems to have escaped notice.

Local government laws in the two provinces have been altered massively and unilaterally. Unable to stop unilateral changes, the opposition in KP and the nazimeen of local bodies - whose term expires on August 30 this year - have formed a body to protest. In a meeting on Tuesday, they made a highly perceptive observation. Designed to serve vested interests during military dictatorships, the local government laws were made behind closed doors and without consultation - the same practice has been followed in the new KP Local Government Act, they noted.

In the Punjab, the attack has been even more brazen as all tiers of local governments were dissolved even before completing half of their mandated five-year term. Reverting to bureaucratic rule, tens of thousands of elected local government councillors have been sent home and their powers transferred to the bureaucracy. When will the elected governments be in place? No one knows the answer to this question, as the 2019 Act does not commit to a firm date for the purpose.
The framers of the Constitution were conscious of how local governments have been manipulated to serve interests of dictators in the past. That is why the 18th Constitutional Amendment introduced Article 140-A to provide for empowered local governments

In the past decade, the political class demonstrated a spirit of consensus-building in the critical 18th Amendment, the 2017 Election Law and the amendment to merge tribal areas. Why this sudden and unexplained reversal to the old days? Why is there a sudden disregard of political consensus in the adoption of new local government laws in the two provinces?

Under the new system, district governments in rural areas have been done away with. There will only be tehsil councils as the highest administrative LG unit. To de-politicise, the tens of thousands of village councils will be elected on non-party basis. In urban areas the directly elected mayors of metropolitan corporations, municipal corporations and municipal committees and all tehsil nazims - also directly elected - will appoint cabinets of “professional and technocrats.”

Is this a trial balloon and a devise to create some justification for the much discussed technocrats’ rule at provincial and federal levels? Or make a case for a directly elected president, assisted by ‘competent’ technocrats responsible to him rather than to the elected parliament, as has been recently advocated in newspapers articles by Musharraf loyalists?

The framers of the Constitution were conscious of how local governments have been manipulated to serve interests of dictators in the past. That is why the 18th Constitutional Amendment introduced Article 140-A to provide for empowered local governments. It 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.” Further: “Elections to the local governments shall be held by the Election Commission of Pakistan.”

This constitutional amendment has raised serious questions whether the new local government laws indeed can withstand legal scrutiny.

Lawyer Umer Gilani wrote a brilliant analysis in his article Will the dissolution stick this time where questioned the legality of latest move. His exposition of some critical features of the Article 140-A are highly significant and warrant reproducing in some detail.

“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 par with the two other governments mentioned in the Constitution – federal government and provincial governments.

“Secondly, Article 140-A 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 140-A clearly shows a legislative intent to reduce provincial leverage over local governments.”

These aspects were first flagged by a three-member bench of the Lahore High Court headed by Justice Mansoor Ali Shah. Just as the Constitution does not allow parliament to topple provincial governments, it does not allow the Punjab Assembly to de-seat local governments mid-tenure – at least, not after 140-A.”

Although the High Court’s judgment was overturned on appeal, Advocate Umer Gillani maintains that the Supreme Court did not give carte blanche to provincial assemblies. Stating that “after the insertion of Article 140-A, a province does not retain the same wide legislative and executive authority that it did before its insertion,” the Supreme Court also left the door wide open for striking down provincial legislation on its touchstone.

The protesting elected heads of local bodies may consider mounting a legal challenge to the new legislations with the opposition political parties providing political support to the challenge.

The writer is a former senator