Governance through ordinance

Bypassing parliament in this manner does not bode well for the democratic project.
Published October 10, 2019
Prime Minister Imran Khan addressing the parliament. – White Star
Prime Minister Imran Khan addressing the parliament. – White Star

Earlier this year, the Buzdar-led government in Punjab dissolved all elected local governments in the province, midway through the five-year term assured to them under the relevant law.

The dissolution was effected through the Punjab Government Local Act, 2019 pursuant to which around 58,000 sacked councillors have been replaced by a handful of bureaucrats.

Ostensibly, the new legislation is aimed at bringing about far-reaching changes in local government; however, given that local governments in Punjab were dominated by the Pakistan Muslim League Nawaz-affiliated councillors, the primary reason for dissolution is not hard to identify. Fresh elections have been promised within a year, but it is noteworthy that the new legislation does not contain any deadline in this regard.

The radical measure can be seen as a grave setback to institution-building and grassroots democracy in the province. Unsurprisingly, the premature dissolution has been challenged before the Lahore High Court (LHC) by certain de-seated councillors. The petitions, which are currently under adjudication, raise several important questions regarding the constitutional position of local governments and the powers of provincial governments to terminate elected councils.

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In order to appreciate the issues involved, it is necessary to begin with Article 140-A of the Constitution, which was first introduced in 2001 and provides as follows: “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.”

The challenge of the petitioners before the LHC revolves around Article 140-A and may be summarised as follows. Firstly, Article 140-A, for the first time, made it mandatory for the provinces to establish local government systems. Previously, the Constitution provided that the state will “encourage” local government institutions, but stopped short of placing a constitutional obligation to ensure setting up of such institutions.

Moreover, the words used in Article 140-A are “local government” instead of “local bodies” which was the term used in prior legislation. According to the petitioners, this demonstrates the intent of the framers of the Constitution to make Pakistan a three-tier federation with local governments being on a par with federal and provincial governments.

In other words, local governments are autonomous and not a mere subset of provincial governments. Consequently, just as the parliament does not have the power to remove or dissolve provincial governments under the Constitution, provincial governments do not have the power to remove elected local governments.

Secondly, the word used in Article 140-A is “devolve” instead of “delegate” or “confer”. While delegated or conferred authority can be taken away, the petitioners contend that “devolution” implies an irreversible transfer of power. To buttress this argument, reference is made to other instances where the word “devolution” is used in the Constitution to refer to irreversible transfer of rights. Therefore, any attempt to snatch away devolved power is ultra vires the Constitution and should be struck down by the LHC.

It is likely that the response of the Punjab government will centre around the fact that there is no express prohibition contained in the Constitution regarding dissolution of local governments. The Punjab government may also argue that it is, in fact, following the mandate and requirement of Article 140-A by introducing a more suitable and better form of local government through new legislation.

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Whatever the ultimate fate of the petitions (and the matter is likely to land up in the Supreme Court eventually), this development illustrates an underlying malaise, namely a lack of due respect on the part of the government for participatory decision-making and elected institutions.

Another recent manifestation of this attitude, this time by the federal government led by the same party, is the flurry of legislation by ordinances, prompting the Supreme Court in a recent case to observe that parliament should be shut down if laws are to be promulgated through ordinances.

It is true that the Constitution allows laws to be promulgated through ordinances; however, in terms of Article 89 of the Constitution, this can only be done when the National Assembly is not in session and the president is satisfied that circumstances exist that render it necessary to take immediate action.

In other words, extraordinary circumstances must exist to justify legislation by ordinances, which must then be placed before parliament in the manner contemplated by Article 89.

According to the Pakistan Institute of Legislative Development and Transparency, the legislation done through presidential ordinances between August 2018 and August 2019 was equal in quantity to the legislation done by parliament during the same period. This shows that legislation by ordinance is business as usual for the government instead of being a measure of last resort in rare cases.

It appears, and so much was stated by the prime minister himself in December last year, that due to the Pakistan Tehreek-i-Insaf not commanding a majority in the Senate, the government has been introducing legislation through ordinances.

Bypassing parliament in this manner does not bode well for the democratic project and is tantamount to usurpation of parliamentary power. To strengthen parliament, the government should engage with the opposition and ensure that legislation is passed after due debate and consideration, including debate in the Senate which is the representative of the federation.

Pakistan currently faces a multitude of external and internal threats ranging from national security to the instability of the economy. In such circumstances, the politics of consensus, built through participatory decision-making and institutional strengthening, is the order of the day.

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