The Case Against Dissolution of Local Governments
I – Introduction
“Dissolution” is not something new to Pakistani law. The first time I read the word “writ” in the headline of an Urdu newspaper in our home, sometime in the 1990s, it had been used in the context of “dissolution” – the dissolution of federal and provincial governments which had taken place many times in the 1990s. In law school, one of the first academic works we had been exposed to was a book called Jurisprudence of Dissolutions by Dr. Osama Siddiq, featuring an analysis of the extremely copious jurisprudence produced by the superior courts which had been called upon to adjudicate the legality of the dissolution of federal and provincial governments from 1988 to 1997. About twenty five years later, the season of dissolutions is back. This time I find myself to be a part of the story as well.
One of the first initiatives taken by the newly elected PTI government in Punjab was to dissolve all the functioning local governments in Punjab, Pakistan’s largest province. In May 2019, when Punjab Assembly passed the Punjab Local Government Act (PLGA) 2019, around 58,000 elected representatives of the people were sent packing despite having completed less than half of their 5-year statutory tenure. While PLGA 2019 makes tall claims about devolution in the distant future, the present reality is that project devolution has been successfully rolled back (and won’t be returning till an indefinite date). The power that had been devolved in 2017 by the Province of Punjab to 58,000 elected representatives has been reclaimed and it has now been placed in the hands of 3 dozen officers belonging to the Pakistan Administrative Service (popularly known as “DMG officers”) handpicked by the Chief Minister of Punjab.
Aggrieved by this dissolution, in early May 2019, many of the deposed local government officials came knocking at Lahore High Court’s door. Amongst the deposed local politicians is Ahmad Iqbal Chaudhary, former Chair of Narowal District Council, represented by me before the Lahore High Court.
The case has received significant media attention because of the sheer number of direct affectees: over 58,000 local politicians. What a few seem to recognize is that, in the longer run, the real significance of the case is not the number of direct affectees, but the far-reaching constitutional questions which the court has been called upon to decide. The questions include the following:
- Is Pakistan a two-tier federation or a three-tier federation? If so, do local governments, like the Narowal District Council, have anything close to the status of a “federating unit”?
- Are local governments autonomous “governments” who derive their authority to rule from the Constitution, or are they mere “subsidiaries” of the provincial government?
- If local governments are a tier of the federation and not mere subsidiaries of the province, does the Constitution allow for them to be sent packing in the midst of their tenures, simply because a different political party has obtained numerical majority in the Provincial Assembly?
The case has now been pending before the Lahore High Court for well over three and a half months. But we expect that in September when the court returns from its summer vacation, the case will return to its roster and will soon be decided. Perhaps for the first time in the history of Pakistan, these questions will receive a direct and authoritative judicial response. Whichever way it turns, it is quite likely that the case of Ahmad Iqbal Chaudhary v. Province of Punjab (W.P. 28066/2019) will leave a mark on how the doctrines of “federalism” and “devolution” are understood in Pakistani constitutional law.
[A complete copy of the text of the petition is available here: http://www.lawandpolicychambers.com/p/before-lahore-high-court-lahore.html ]
Because of the stakes involved, I have decided to share with the reading public the arguments we have adopted in a simplified form. After all, it is “we, the people of Pakistan”, the ordinary public, and not just lawyers and judges, who have been mentioned in the Preamble of the Constitution as the fountain of all earthly authority.
II – The Road to 140A: A Brief History of Local Governments in Pakistan
The story of this case must begin with a brief recap of the history of local governments in Pakistan.
When Pakistan came into being, powerful local bodies such as the Lahore Improvement Trust and Karachi Municipal Corporation were very much in existence. However, our first Constitution, the Government of India Act 1935, did not contain any significant provision about securing local governments from the intrusion of provinces. Insofar as the distribution of powers between the federation and the provinces is concerned, the Government of India Act 1935 provided a detailed account of things. But, as far as the third tier goes, it was, unfortunately, silent. The same unfortunate omission can be noticed in the 1956 Constitution and 1962 Constitution. Even the Chapter on Directive Principles of State Policy of the 1956 Constitution (Articles 23 to 32), which covered a lot of ground, made no mention of local government institutions. This negligence towards local governments displayed by our earliest constitutional thinkers is at least part of the reason why institutions of local government have failed to flourish in this country.
The framers of the 1973 Constitution finally attempted to rectify the error. Express recognition was first given to local government institutions through Article 32 of the 1973 Constitution, which falls in the Chapter on Principles of Policy. It states the following:
“32. Promotion of local Government institutions. The State shall encourage local Government institutions composed of elected representatives of the areas concerned and in such institutions, the special representation will be given to peasants, workers and, women.”
Unfortunately, Article 32 on its own did not prove to be adequate to the task. In the period between 1973 to 2001, the state of Pakistan was unable to “encourage local governments” despite the promulgation of Article 32. The principal problem faced by local governments in this initial period was that their tenure was repeatedly cut short and their institutional framework was frequently altered through provincial legislation. The table below illustrates the problem.
TABLE – Frequent Alteration and Dissolution of Local Governments in Punjab
|Period||Parent Statute||Dissolution/Alteration statute||Duration|
|1972 to 1975||Punjab People’s Act, 1972||Punjab Local Government Act, 1975||3 Years|
|1975 to 1979||Punjab Local Government Act, 1975||Punjab Local Government Ordinance, 1979||4 Years|
|1979 to 1996||Punjab Local Government Ordinance, 1979||Punjab Local Government Act, 1996||17 Years|
|1996 to 1997||Punjab Local Government Act, 1996||Punjab Local Government (Revival of Law) Act, 1997||1 Year|
|1997 to 2001||Punjab Local Government (Revival of Law) Act, 1997||Punjab Local Government Ordinance, 2001||4 Years|
|2001 to 2005||Punjab Local Government Ordinance, 2001||Punjab Local Government (Amendment) Act, 2005(introducing S.179-A)||4 Years|
|2005 to 2010||Punjab Local Government (Amendment) Act, 2005 (introducing S.179-A)||Punjab Local Government (Amendment) Act, 2010 (re-introducing S.179-A)||5 Years|
|2010 to 2013||Punjab Local Government (Amendment) Act, 2010 (re-introducing S.179-A)||Punjab Local Government Act, 2013||3 Years|
|2013 to 2019||Punjab Local Government Act, 2013||Punjab Local Government Act, 2019 (Section 3 and 312)||6 Years|
|2019 – not know||Punjab Local Government Act, 2019||Not known||Not known|
The institution of local government has other problems too, such as insufficient devolution of powers, an attitude of non-cooperation by provincial government, public apathy, and so on. But what the table tells us is that the biggest of all problems facing the local government is, and has been, the lack of continuity. Amidst frequent dissolutions, the local government has never been allowed to breathe. It is axiomatic that an institution whose basic framework is being radically revised every two to three years and which is being dissolved frequently, is expected to flourish.
It was to resolve this very problem – i.e. the vulnerability of local government to the shifting currents of provincial politics – that Article 140A had been inserted into the Constitution in 2001, ironically during a military regime. In 2005, the leaders of Pakistan’s democratic parties also gave due recognition to this problem. The Charter of Democracy promised to provide local governments with “constitutional protection”. Item 10 therein stated the following:
“…Constitutional protections will be given to the local bodies to make them autonomous and answerable to their respective assemblies as well as to the people.”
Sitting in exile, it seemed that Pakistan’s major democratic leaders had finally learned to value local governments – which are now considered the foot-soldiers of a democratic system. The promise made to the people of Pakistan by their political leadership in Item 10 of the Charter of Democracy had been kept.
Figure 1 – Late Mohtarma Benazir Bhutto and former PM Nawaz Sharif, presently in jail, signed the Charter of Democracy in 2005
In 2010, the framers of Constitution (Eighteenth) Amendment Act, 2010 decided to retain Article 140A despite its dictatorial provenance. The framers of the 18th Amendment not only retained Article 140A but also strengthened it by adding sub-article(2) which stipulates that local government elections would be conducted by the Election Commission of Pakistan, a federal body, and not by the provinces. Article 140A, as it presently stands, is quoted below for convenience:
140A. Local Government: (1) 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.
(2) Elections to the local governments shall be held by the Election Commission of Pakistan.
III – From 140A to the 2015 Local Government Elections: A Journey of Reluctant Devolution
While the promulgation of Article 140A in 2001 and its strengthening in 2010 are significant landmarks, it is an irony of history that even these stimuli were not sufficient to bring about devolution. The provinces dragged their feet for several years after 2010 and were reluctant to devolve their powers to local governments. What finally brought this about was the pressure exerted by the Supreme Court.
A few people now seem to remember that activism for local governance was mandatory on the agenda of the Supreme Court, back in the tenure of Chief Justice Iftikhar Muhammad Chaudhary. In those years, the court repeatedly issued a set of orders urging the provinces to enforce Article 140A and bring about devolution.
Figure 2 – Former CJP Iftikhar Chaudhary, whose activism played a major role in the enforcement of Article 140A
Just to illustrate the point, we may mention the case of Raja Rab Nawaz v. Federation of Pakistan (2013 SCMR 1629), where the Supreme Court unequivocally recognized that local government is “the third tier of government”. It also recognized that the enforcement of local government law was intrinsically linked with fundamental rights. The relevant paragraph is reproduced below:
Para 16. It is important to bear in mind that local government is the most vital element in a democracy, though not generally recognized as such… The existence of local self-government provides a mechanism for the enforcement of Fundamental Rights of the people. Such government bodies are helpful for development including education, health, social services as well as in improving, law and order situation. In short, the local self-government is necessary not only for strengthening democracy in the country but also for securing good governance, which is essential to ensure the welfare of the citizens. This tier of government is always appreciated by the general public because it remains within their approach, as such they get involved in the decision making the process.
In para 18 of the Rab Nawaz case (supra), the Supreme Court further reinforced the imperative nature of the duty to set up local governments:
18. Thus, in the light of the above, it is imperative upon the Government to ensure that the local government bodies elections as envisaged under the law must be held from time to time so that the representatives of the people are enabled to participate in managing their affairs at the grass root levels and the Fundamental Rights guaranteed under the Constitution are protected and enforced.
Despite the clear directions in the Rab Nawaz case, local government elections were not conducted. Therefore, the court issued a series of subsequent orders in Constitution Petition No. 77 of 2010 and Human Rights cases No. 13124-P/2011, 40303-P/2011, 40220-G/2011 and 43103-B/2011. Some of the Supreme Court’s relevant directions are reproduced below:
Order dated 05.04.2012:
18. … [H] olding the election of the local bodies, which otherwise is the obligation of the Government in term of Article 32 of the Constitution… [W]e are of the opinion that after passing of 18th Amendment in the Constitution, under Article 140-A, each provincial government is bound by law to establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments.
Order dated 06.04.2012:
19. [T]he Chief Secretaries … should appear, in person, under instructions to make the statement as to why provisions of the Constitution in terms of Articles 32 and 140-A are not being complied with, on the next date of hearing.
Order dated 12.04.2012:
13. [H]olding local government elections [is]the command of the Constitution in terms of Articles 32 and 140-A (latter incorporated in pursuance of 18th Amendment of the Constitution).
Order dated 05.11.2013:
[I]t is the duty of the Provincial and Federal Governments to ensure holding of Local Bodies system and devolve political, administrative and financial responsibility and the authority to the elected representatives of the local bodies, thus no departure is possible from constitutional provisions nor any concession can be extended for its enforcement. Therefore, adherence to constitutional provisions has to be made as early as could be possible.
About three years after the promulgation of Article 140A and in compliance with all the aforementioned court orders, the Government of Punjab finally moved the Punjab Local Government Bill, 2013 in the Punjab Assembly. On 22nd August, 2013, the Assembly adopted the Punjab Local Government Act, 2013 (PLGA 2013). Elections under PLGA 2013 took place in three stages for several reasons, and, were not completed until 2015. Political party PML-N swept the local government polls in most districts, just as it had earlier swept the Provincial Assembly elections. However, oath-taking in most districts had to wait until January 2017.
IV – Facts of the Case at Hand: The Rollback of Dissolution and Return to “Administrator Raj” in 2019
With the aforementioned constitutional history in mind, we now revert to the facts which gave rise to the case at hand.
Under Section 30 of PLGA 2013, elected local government officials were explicitly promised a 5-year term in office, starting from the day they took their oath of office. The said provisions are reproduced below:
30. Term of office.– (1) Subject to this Act, the term of office of a local government shall be five years commencing on the date on which it holds its first meeting.
Since their tenure started in January 2017, most local government officials in Punjab had a legitimate expectation that they would be allowed to continue in office till January 2022. However, things did not turn out that way. In 2018, a coalition led by PTI won majority in the Punjab Assembly. PTI moved the Punjab Local Government Bill, 2019 which received the assent of the Governor and was passed on 3rd July, 2019. Under Section 3(1), all existing local governments in the province were automatically dissolved. This provision states:
3. Dissolution of existing local governments –
(1). All local governments constituted or continued under the Punjab Local Government Act, 2013 (Act XVIII of 2013) are hereby dissolved.
(2). As soon as maybe but not later than one year of the commencement of this Act, the Government shall constitute succeeding local governments following the provisions of section 15 of this Act.
Going even further, Section 312 of PLGA 2019 purports to repeal the entire PLGA 2013. It states the following:
312. Repeal and Savings –
(1). The Punjab Local Government Act, 2013 (XVIII of 2013), is hereby repealed.
As a result of this set of events, 58,000 elected representatives such as the Mayors and Chairs of District Councils have been toppled in the midst of their tenure. They have been replaced by unelected rulers, mostly officers of the Pakistan Administrative Service (also known as DMG officers) handpicked by the Chief Minister sitting in Lahore. At the time of the writing of this article, no new elections have been announced. Project devolution has been rolled back, till an indefinite date. Punjab has returned to the era of “administrator raj” and there is no guarantee that other provinces will not follow suit.
V – The Case of Deposed Local Governments
The silver lining is that the deposed local governments have challenged the vires of PLGA 2019 and all actions took under it based on Article 140A of the Constitution. More than 30 separate petitions have been filed. They have urged the court to:
- Declare that Sections 1(3), 3, 121 and 312 of the Punjab Local Government Act, 2019 are unconstitutional and void ab initio;
- Set aside Notification No. SOR(LG)38-34/2018 dated 04.05.2019 (“Dissolution Notification”), Notification No. SOR(LG)1-11/2019 dated 04.05.2019 (“Administrator Appointment Notification”) and Notification No. DC/NWL/1755 dated 04.05.2019 (“Charge Assumption Notification”) and all other notifications issued by respondents and officers subordinate to them in pursuance of the Punjab Local Government Act, 2019; and
- Declare that the petitioner who was elected to office under the Punjab Local Government Act, 2013 is entitled to continue in office until the expiry of his term of office stated under Section 30 of the said Act.
They have also sought an alternative prayer which is more limited in its scope:
In the alternative, declare that the Petitioner who was elected to office under the Punjab Local Government Act, 2013 is entitled to continue in office till the time succeeding elected representatives are notified by Respondent No. 4 under Section 18 of the Punjab Local Government Act, 2019 and set aside all notifications issued by Respondents No. 1, 2 and 3 and officers subordinate to them in pursuance of Section 121 of the Punjab Local Government Act, 2019.
VI – Three Arguments Based on the Text of Article 140A: What is the meaning of “Establish”, “Government” and “Devolve”?
The argument of the deposed local governments is primarily based upon an interpretation of three critical terms used in Article 140A of the Constitution: “establish”, “government” and “devolve”. None of these terms has been defined in Article 260, the definitions clause of the Constitution. Therefore, whichever way the case turns depends on how the courts interpret these undefined terms. The deposed local governments have urged the court to adopt a pro-devolution interpretation of these terms because the larger scheme of our Constitution is pro-devolution.
i) The first critical term is “establish”. It must be noted that Article 140A uses the phrase “province shall, by law, establish…”. We contend that the phrase implies that the only lawful object for which the provinces can exercise their legislative powers under Article 140A is for “establishing” local governments and devolving powers to them; the legislative powers of the provinces under Article 140A cannot be used for the opposite purpose i.e. for “dissolving” local governments and usurping their powers. Provincial legislation that purports to dissolve existing local governments and usurps their powers would be ultra vires to Article 140A.
ii) The second critical term is “government”. It is noteworthy that Article 140A uses the term “local governments” not “local bodies” or “local authorities”. The usage of the term “government” instead of “bodies” makes it clear that local governments have been elevated to the status of a third-tier of government, and are not subordinates of provincial governments. The government mentioned in Article 140A may now be considered analogous to the two other tiers of governments mentioned in the Constitution: federal government defined in Article 90 and provincial governments defined in Article 129. It follows that the relationship between local governments and provinces would be analogous to the relationship between provinces and the center.
It may be recalled that the distinction between the terms “government” and “local authority” has a long history in our law and can be traced back to the General Clauses Act, 1898. Section 2 of the General Clauses Act defined the term “government” as referring exclusively to the two sovereign entities of the time: the central government of British India and various princely states which had allied themselves with British India. “Local authority”, on the other hand, was defined as including the likes of municipal committees and district boards i.e. bodies which were subordinate to one government or another and had been enjoying only such powers as the relevant government had entrusted to them. In the context of this history, the use of the term “government” to describe “local governments” in Article 140A cannot be deemed a trivial matter. It implies nothing less than a legislative intent to add a third tier to our federation.
iii) The third critical term is “devolve”. It is noteworthy that Article 140A uses the term “devolve” instead of the well-known phrase “confer functions upon” used in Articles 98 and 138 of the Constitution. Article 138 states the following:
Article 138. Conferring of functions on subordinate authorities. On the recommendation of the Provincial Government, the Provincial Assembly may by law confer functions upon officers or authorities subordinate to the Provincial Government.
Before Article 140A came in, Provincial Assemblies used to set up local governments through legislation under Article 138. This implied that the provincial governments were conferring some of their functions and powers upon the local governments. Since this was like delegation of functions by a principal to an agent, the delegated functions and powers could be withdrawn at any time. So if the Province of Punjab delegated some of its functions upon the Lahore Development Authority through an Act, it could reclaim those functions through a subsequent Act. The very object of inserting Article 140A and using the term “devolve” in it was to change this situation.
The term “devolution” is different. It implies an irrevocable transfer. A power once devolved cannot be reclaimed. That is the meaning of the term devolution. This is exactly how the term “devolution” has been used elsewhere in the text of the Constitution. In Article 63(1)(i), we find the phrase, “…where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator…” Here the term “devolve” has been used for rights which accrue to a successor after the death of the predecessor. Quite obviously, the dead cannot come back and reclaim the inheritance they left behind!
Article 274(3)(a) also uses the term “devolve”. It used the term to refer to any rights which had been transferred from provinces to the federation on account of the coming into force of the 1973 Constitution.
In both these articles of the Constitution, the term “devolve” has been used for an irreversible transfer of rights, not for a reversible delegation of powers. It strengthens our view that the functions which the Province of Punjab had devolved to the Lahore Metropolitan Corporation in 2017, cannot be reclaimed in 2019. This cannot be done, not even through an Act of the Provincial Assembly.
VII – Two Arguments Drawn from Legislative History: Charter of Democracy and Significance of sub-article (2) of Article 140A.
In determining the meaning and scope of Article 140A, attention must also be paid to its legislative history. Why was it brought in, back in 2001? And why was it retained and reinforced in 2010?
As we have pointed out above, Article 140A was first inserted into the Constitution in 2001 in the context of a history of frequent dissolutions of local governments by Provincial Assemblies in the period between 1973 and 1999 to raise the status of local governments from “statutory” to “constitutional” institutions and to protect them from frequent dissolution.
When the Charter of Democracy was adopted in 2005, the political leadership decided in favor of retaining this concept. The Charter can rightfully be considered a key for deciphering legislative intent behind Article 140A – as well as other provisions of the 18th Amendment. The Charter stated that “constitutional protection will be given to the local bodies to make them autonomous.” The framers of the Charter envisaged liberating local government from the stranglehold of the provinces which inhibited its growth and autonomy.
The addition of sub-article (2) in Article 140A in the year 2010 is also a significant fact. A question worth asking ourselves is: why did the framers of the 18th Amendment take away responsibility for conducting local government elections from the provinces and vest it instead with a federal body, the Election Commission of Pakistan? It can be inferred that the framers intended to reduce provincial leverage over local governments.
VIII – Have Courts Ever Struck Down Legislation Based on Article 140A?
Perhaps the most well-known case concerning judicial review of dissolution of local government is the case reported as Mehar Zulfiqar Ali Babu v. Province of Punjab (1997 SCMR 117), in which a 3-member bench of the Supreme Court reinstated dissolved local governments in Punjab.
The facts of the case seem oddly familiar. The local government had been elected to office in 1991 under the PLGO 1979 when a PML-N government was in place. They had taken oath in February 1992. The law promised them a statutory tenure of 5 years. So they had a legitimate expectation to be allowed to continue till February 1997. However, soon afterwards, a new government took charge in the province. Only one and a half years into their tenure, on 15th August 1993, all local governments were dissolved by the Governor of Punjab, who then represented a different set of political forces. The instrument used for dissolution by the Governor was an executive order, Notification No. SOV(LG)3-32/93 issued in exercise of powers given to the Governor by 26-A of PLGO 1979. Then, and as is the case now, thousands of elected officials had been sent packing with one stroke of a pen and replaced by hand-picked bureaucrats known as “administrators”. The Notification was passed.
The local governments challenged the Governor’s order. While a Single Bench of the Lahore High Court and a subsequent Division Bench did not offer the deposed local governments much relief, they got lucky in the Supreme Court. In a judgment authored by Justice Afrasiyab Khan, the Supreme Court held the following:
“We feel no hesitation to declare the issuance of Notification No. SOV(LG)3-32/93 dated 15th August 1993, to be without jurisdiction. It is liable to be set aside. In this view of the matter, the appellants are held to be entitled to be reinstated to their offices to enable them to complete their terms.”
Figure 3 – Justice Raja Afrasiyab authored the SC judgment reinstating deposed local governments.
The irony is that by the time the local governments won their victory in the Supreme Court, it was late 1996 and only a few months were left before the expiry of their terms. Yet, at least in principle, the stance of the local governments was vindicated by the apex court.
While this case is helpful to ours, to be fair it is partially distinguishable. While the dissolution back then was done through an “executive order”, the present dissolution has been done through legislation.
This is why I think that the most relevant precedent in the present situation is the case from the High Court of Sindh where the court struck down legislation (and not a mere executive order) dissolving local governments. I am referring to the case of Raheela Magsi v. Province of Sindh (2013 CLC 1420) which bears perhaps the starkest resemblance to the present case.
Raheela Magsi v. Province of Sindh (2013 CLC 1420)
Figure 4 – Raheela Magsi, on whose petition the High Court of Sindh struck down legislation dissolving local governments.
Raheel Magsi v. Province of Sindh was a writ petition (Constitutional Petition No. D – 3463 of 2010) decided in 2012 by a Division Bench of the High Court of Sindh comprising Justice Faisal Arab and Justice Nadeem Akhtar. It was in this case that the true potency of Article 140A had come to light.
[Complete judgment can be accessed here: http://220.127.116.11:8056/caselaw/view-file/NzM2MzljZm1zLWRjODM ]
Raheela Magsi, a PML-N politician from interior Sindh, is presently a member of the Senate of Pakistan. She was, at that time, Zilla Nazim of District Tando Allahyar. After assuming power in 2009, the PPP government in Sindh passed a series of five Ordinances tinkering with the local government system then in vogue. These Ordinances included the Sindh Local Government (Amendment) Act, 2010, dated 17.02.2010, through which a new Section 179-A had been inserted in the SLGO providing for the dissolution of local governments, the appointment of administrators in place of elected representatives, and postponement of elections for a period of 120 days. As head of one of the deposed local governments, Raheela Magsi urged the High Court to strike down those Ordinances. After many hearings, the High Court agreed with her. On 18th May, 2012, the High Court of Sindh struck down all the impugned laws and declared them unconstitutional on the basis of Article 140A. It held the following:
Respondents 1 and 2 had no power or authority to amend the basic structure and provisions of the SLGO by dissolving Local Governments and by substituting/appointing non-elected and handpicked bureaucrats as Administrators in place of elected representatives of the people.
The impugned amendments are liable to be struck down also in view of the authority, namely, 2005 SCMR 186 (supra) wherein it was held by the Hon’ble Supreme Court that the impugned Notification could not have been issued because the main object of the Punjab Local Government Ordinance, 2001, (which is pari materia with the SLGO) was “to devolve political power and decentralize administrative and financial authority to accountable local governments for good governance, effective delivery of service and transparent decision making through institutionalized participating of the people at grass-roots level ”; and that Government could not nominate any bureaucrat to perform such functions which were required to be performed by an elected person.
Imran Tiwana v. Punjab (PLD 2015 Lahore 522)
While Raheela Magsi’s case is the most relevant, the most erudite judgment on the issue of local government in Pakistan is the 11o-page judgment of the Lahore High Court reported as Imran Tiwana v. Province of Punjab (PLD 2015 Lahore 52). That case too was decided by a 3-member bench of the Lahore High Court comprising Justice Mansoor Ali Shah, Justice Ayesha Malik and Justice Yawar Ali.
The petitioners were five eminent citizens of Lahore who had come to court seeking a stay against the construction of a multi-billion signal-free corridor in Lahore which the Lahore Development Authority was in the process of building. One of the grounds for challenge was that after the coming into force of Article 140A, the LDA, an unelected bureaucratic body controlled by the Punjab government, no longer had any authority to make such weighty decisions – only an elected local government could do that.
The court accepted the petitions and granted a stay against the signal-free corridor. In the process, it did something more radical. It struck down sections 6, 13, 13A, 14, 15, 16, 18, 20, 23, 24, 28, 34A, 34B, 35, 38 and 46 of LDA Act, 1975 “…to the extent that they usurp, trump, encroach, dilute and abridge the powers, responsibility and authority devolved on to the elected representatives of the Local Government System under Article 140A through PLGA.”
Figure 5 – Justice Syed Mansoor Ali Shah authored the most erudite judgment on local government law in the history of Pakistani jurisprudence.
For anyone interested in the subject of local government, the entire 110 pages authored by Justice Mansoor Ali Shah are worth a read. Written in academic style, the judgment provides an excellent recap of the history of local government law in Pakistan. It also compares Pakistan’s situation with comparable jurisdictions such as India, Bangladesh, USA, Canada, South Africa, Brazil and China. Drawing upon the latest social science scholarship, it also highlights the centrality of local government to good governance. The following excerpts from the judgment are relevant to our context concerning the interpretation of Article 140A:
“Prior to Article 140A local governments lacked any constitutional protection in Pakistan and their basic design was at the discretion of the provincial legislature… [L]ocal governments were seen as agents of the provinces…. The enactment of Article 140A through the 18th Amendment has radically altered the constitutional status of local governments in Pakistan…”
“[Local Governments] are not envisioned by Article 140A to be an agent or an underling of provincial governments but a distinct and empowered third tier of elected governance…”
“Any interference in the political, administrative and financial space of the Local Government System, would be undemocratic and not in step with the constitutional vision.”
“[W]hile local government legislation comes under the purview of the provincial legislature, this does not make provincial governments the “controlling authority” of local governments.”
The Supreme Court Appeal in LDA V. IMRANA TIWANA (2015 SCMR 1739)
The provincial government was, for obvious reasons, not very pleased with the Lahore High Court’s strongly pro-devolution stance in the Imrana Tiwana case. The truth is that no provincial government can be expected to happily part with its powers. Therefore, the provincial government appealed to the Supreme Court.
A 3-member bench of the Supreme Court presided over by Justice Mian Saqib Nisar readily accepted the appeal and set aside the High Court’s judgment. The Supreme Court’s judgment has been reported as LDA V. Imrana Tiwana (2015 SCMR 1739). The main argument of the Supreme Court was that Article 140A could not be read as trumping Article 138 which conferred upon the Provincial Assembly the power to legislate. This was something of a “straw-man” argument because no one had argued for Article 140A to trump the Constitution. The case argued by pro-devolution advocates was only that provincial legislation governing local governments should have been sifted through the filter of Article 140A. The LDA Act, which conferred virtually limitless functions of the local government upon a non-elected provincial authority, clearly didn’t meet that test. The Supreme Court also failed to appreciate the historical context which lent credence to the argument that devolution promised in Article 140A was impossible without first shutting the door of repeated provincial intrusions on the domain of local governments.
As a result of the Supreme Court’s appellate judgment (2015 SCMR 1739), the precedential value of Justice Mansoor Ali Shah’s judgment in the Imrana Tiwana case (PLD 2015 Lahore 522) has been dampened. But if his history tells us anything, it is that such setbacks are likely to be temporary. That judgment is going to haunt the enemies of devolution for a while. That’s the beauty of the common law system.
There is a well-respected convention in the common law system that a judge who rejects the contention of a lawyer must nonetheless record it (verbatim) in his or her judgment. Likewise, a law reporter must publish a dissenting opinion alongside the majority opinion. Similarly, every reported judgment continues to retain its place in the law reports, even if it has been overruled.
Just like a vanquished general wounded in battle retreating to the barracks to recoup strength, the overturned judgment returns to the shelves of the law library and lies there for years and decades. There, in the wholesome company of books, it illuminates the hearts and minds of learned men and women, amongst them lawyers, judges and intellectuals. And one day, when no one expects it, the overruled judgment returns to the courtroom, leading an army of admirers and, if persuasive enough, emerging triumphant.
That is what happened with Sindh High Court’s bold and crisp opinion in the Tamizuddin v Federation (PLD 1955 Sind 96) authored by Chief Justice Constantine, who ruled in favor of restoring the Constituent Assembly and dismissing the cabinet of Governor-General Ghulam Mohammad and General Ayub Khan. At the time, the High Court’s decision was quickly overruled by the Federal Court headed by Chief Justice Munir, with only Justice Cornelius dissenting (PLD 1955 FC 240). But Constantine’s overruled view in 1955 and Cornelius’s minoritized view from the same year returned triumphant in 2009 in Sindh High Court Bar Association v. Federation (PLD. 2009 SC 879). The same happened with Justice Hamood-ur-Rahman’s opinion in 1972 in Asma Jilani v. Federation (PLD 1972 SC 139) where he proclaimed the death of the doctrine of necessity, perhaps a bit too early. His view was overruled in 1977 by his Supreme Court successors in Nusrat Bhutto v. Federation (PLD 1977 SC 657). But the original Hamood ur Rahman view returned triumphant in 2009.
The lesson of the story is that bold, imaginative legal doctrines, once crafted, do not die so easily. The doctrine of the autonomy of local governments, carved out in great detail by Justice Mansoor Ali Shah in Imran Tiwana’s case (PLD 2015 Lahore 522) and rooted in the text of the 18th Amendment, is also not going to go away so easily. This overruled judgment has already become the fountainhead of ideas for advocates of local governments, as they fight this battle in various courts of the country.
Before concluding, it may be pointed out that although the Supreme Court overruled the High Court’s pro-devolution opinion in the Imrana Tiwana case, it has never given the provinces a carte blanche in the matter of local government legislation. The court recognized that “Article 140A is not to be a mere hollow constitutional promise…” It warned that Article 140A should not be treated as “an exercise in futility.” It clarified that after the insertion of Article 140A, the province does not “retain the same wide legislative and executive authority that it did before its insertion” [para 35]. Para 56 of the Supreme Court judgment, quoted at length below, makes it clear that those in government who are treating 140A as a toothless provision might be in for a surprise:
“Even after the insertion of Article 140A the Provincial Government would continue to have the authority to enact and amend statutes, make general or special laws with regard to Local Government and local authorities, enlarge or diminish the authority of Local Government and extend or curtail municipal boundaries…. [However, the] power of amendment has to be informed by the fact that if the Provincial Government oversteps its legislative or executive authority to make the Local Government powerless such exercise would fall foul of Article 140A of the Constitution. An excessive or abusive exercise of such authority would not be countenanced by this Court. It would be struck down.”
The dissolution of all local governments in Punjab through PLGA 2019 is as good a case for judicial intervention as can be. This case is simply about getting deposed politicians restored to their office. Many of them are quite capable of returning to power on their own through fresh elections. This case is about setting a precedent and bringing an end to the vicious cycle of dissolutions which have inhibited the growth of local governments in Pakistan. We want to settle, once and for all, the legal principle that local governments are autonomous, elected tiers of the federation, which cannot be dissolved by another tier of the federation at whim. If the Constitution’s promise of devolution of powers is to become anything more than a hollow promise, this principle will have to be accepted. That is why we think that this case stands a good chance.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.