WHEN the year 2019 began, there were elected local governments functioning in every single federating unit of the country. Today, there are none in Punjab, Khyber Pakhtunkhwa and Balochistan. No less than 74 per cent of Pakistani citizens stand deprived of their right to local democracy. This creeping coup against democracy at the local government level is perhaps the greatest untold story of 2019.
So how did we come to this?
On Jan 27, 2019, the four-year tenure of local governments in Balochistan ended. On May 3, all local governments in Punjab were dissolved through a legislation passed by the Punjab Assembly. And on Aug 28, the three-year tenure of local governments in KP also expired. To date, the PTI-dominated regime has not announced new election dates in any of these provinces, preferring instead to rule the districts through handpicked bureaucrats. Balochistan has now remained without local democracy for 10 months, Punjab for six and KP for two. Save for a judicial intervention, the situation is unlikely to change any time soon.
While it is unfortunate, the rollback of local democracy is not something new. According to my review of Punjab’s legal history, this is perhaps the 10th time since 1972 that something like this has happened in this province. The record of other provinces is not much better. There is, however, a ray of hope in the present scenario.
A power once devolved cannot be reclaimed, not even for a day.
More than ever before, this time around, the rollback of elected local governments is being vigorously contested. Deposed local governments have come knocking at the door of the courts, emboldened in their quest by Article 140-A of the Constitution. The first such challenge was brought before the Lahore High Court (LHC) by the deposed chairman of the district council of Narowal, Ahmad Iqbal. Although the case is proceeding very slowly, by now, 37 other petitioners have joined in and similar petitions are also surfacing in the high courts of KP and Balochistan.
So what exactly is this Article 140-A, upon which the hopes of local democracy are now pinned? 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.” In the present context of the rollback of local governments, three aspects of Article 140-A are worth noting.
First, note that Article 140-A uses the term ‘devolve’, not ‘delegate’. Devolution represents an irreversible transfer of rights; that’s how the term is defined in dictionaries and is also used elsewhere in the text of the Constitution. A power once devolved cannot be reclaimed, not even for a day. Therefore, postponing fresh local government elections for months and years, while governing districts through bureaucrats, is no longer a legally tenable option.
Second, note that Article 140-A uses the term ‘local governments’, not ‘local bodies’, which was used in earlier legislation. The term ‘government’ was previously used in the Constitution only for the federal government and provincial governments. This suggests a legislative intent to elevate the status of local governments.
Third, Article 140-A uses the phrase ‘shall establish’. Devolution is now a constitutional, enforceable obligation, not a matter of provinces’ convenience.
The redemptive potential of Article 140-A was first flagged by Justice Mansoor Ali Shah in a LHC case reported as Tiwana v. LDA. A three-member bench held that, following the insertion of Article 140-A, the principle of local democracy has been entrenched in our Constitution. Now, the people of Pakistan can only be ruled by elected representatives, even at the district level. They cannot be subjected to bureaucratic raj, not even for one day.
It is true that the LHC’s judgement was overturned on appeal. But, contrary to popular perception, the Supreme Court’s judgement in the case did not give a carte blanche to provinces in their dealings with local governments. The SC clarified 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”. It left the door wide open for judicial review of legislative action and executive inaction on the touchstone of Article 140-A. And, above all, it assured that the promise of local democracy enshrined in Article 140-A would never be allowed to become a “hollow constitutional promise”.
It is a sobering thought that, as 2019 draws to an end, the promise of local democracy has in fact become a hollow constitutional promise for at least three-quarters of the Pakistani population. And no one seems to have even noticed.
The writer is a lawyer.
Published in Dawn, November 20th, 2019