The elected local governments completed their four-year term on Aug 28 after which the Election Commission of Pakistan (ECP) is bound to hold fresh polls within 120 days under the Elections Act, 2017. However, there are different challenges to the ECP to implement this legal requirement.

Presently, one of the most important issues is that of the legal battle going on in Peshawar High Court related to the local government system in the province. Several writ petitions have recently been filed by different groups and individuals related to the drastic changes made in the Khyber Pakhtunkhwa Local Government Act, 2013.

The KP Assembly had on May 29, 2019, passed the KP Local Government (Amendment) Act, 2019, making sweeping changes in the 2013 law specially reducing the three-tier local government system to two tiers by abolishing the district level tier.

Through some of the writ petitions the KP Local Government (Amendment) Act, 2019, was challenged on multiple grounds. Initially, a petition was jointly filed by Senator Mushtaq Ahmad Khan and MPA Enyatullah Khan of Jamaat-i-Islami. Another petition was jointly filed by Leader of the Opposition in KP Assembly Akram Khan Durrani and parliamentary leaders of different opposition parties.

A few days ago a petition was filed by president of Local Council Association (LCA), Himayatullah Mayar, who has twice served as district nazim of Mardan.

A few individuals have also filed petitions related to these amendments. One of the petitions, different from others, has been filed by MPA Mahmood Ahmad Khan Bittani for holding local government elections in the province beyond the 120 days stipulated time.

Belonging to Jamiat Ulema-i- Islam-Fazl, the MPA requests the court to declare that no election process can be initiated under the Elections Act, 2017, in the absence of meeting requirements of KP Local Government (Amendment) Act, 2019, which provides for completing the required administrative actions within six months. Some of the grievances of the petitioners are common especially the abolition of the district tier of the local governments.

These petitioners believe that the purpose of the impugned amendments is to devolve some of the powers of the district council and district nazim to the tehsil government while the rest would be returned to the provincial government.

They state that the amended Act is aimed at returning the control of many devolved departments to the government. Initially, under the KP Local Government Act (KPLGA), 2013, 24 departments were devolved to the districts. However, through different amendments eight of the departments were returned to the province. Now, under the impugned amendments only nine departments have been left with the local governments.

The petitioners contend that once the departments were devolved to the local councils, the same could not be returned to the province.

The 1973 Constitution makes it binding on the state to encourage local government system. Article 32 states: “The State shall encourage local government institutions composed of elected representatives of the areas concerned and in such institutions special representation will be given to peasants, workers and women.”

Subsequently, Article 140-A was incorporated in the Constitution through the Constitution (Eighteenth Amendment) Act, 2010. Article 140-A (1) 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 government.” Similarly, sub-section 2 of Article 140-A provides that “Election to the local governments shall be held by the Election Commission of Pakistan.”

The last four decades witnessed successive governments introducing different local systems in the province. In the last two decades the most important laws in this regard are the KP Local Government Ordinance, 2001, introduced during military government of retired General Pervez Musharraf, and the present KP Local Government Act (KPLGA), 2013.

During the military government of General Ziaul Haq, the NWFP Local Government Ordinance, 1979, governed the local government system in the province. That Ordinance was replaced with Musharraf era LG Ordinance, 2001. The said ordinance was repealed through the KP Local Government Act, 2012.

After a year when Pakistan Tehreek-i-Insaf government was installed in the province the KPLGA was introduced, which was having striking resemblance with the Musharraf era Ordinance.

During the provincial government of Awami National Party and Pakistan Peoples Party (2008-2013) then local councils were dissolved on Feb 20, 2010, and elected nazims were replaced with administrators. For five years local government polls were not held and under the present KPLGA elections were held in 2015.

The KPLGA provided for three tiers of local councils i.e district council, tehsil council and village/neighborhood council. While KPLGA 2013 was almost similar to the 2001 LG Ordinance, it was having deviations in mechanism provided for elections.

This law provides for direct elections for electing members of the district and tehsil councils, unlike the previous ordinance under which nazims and naib nazims of a union council served as members of the district and tehsil councils, respectively.

Furthermore, instead of union council, the third tier in the present law was that of village/neighborhood council having 10 to 15 members, including: five to 10 Muslim members, determined on the basis of population, elected to general seats; two members elected to seats reserved for women; one member each elected to seat reserved for peasants and workers, youth and non-Muslims.

Another difference was that in previous law elections of all tiers were non-party based whereas in KPLGA the district and tehsil polls were party-based whereas that of village council were not party-based.

Now under the present amendments, the village/neighbourhood councils will be having seven members, including three on general seats, one each on seats for women, youth, peasants or workers and non-Muslims.

The chairman of tehsil council will be elected through party-based polls held on the basis of joint electorate and the whole tehsil serving as single constituency for that purpose. Moreover, all chairmen of village/neighbourhood councils will also serve as members of their respective tehsil councils.

Legal experts believe that the high court has to decide these petitions at the earliest so as to end uncertainty about fate of the fresh amendments.

Published in Dawn, September 30th, 2019