LOCAL GOVERNMENT
Whereas the original 1973 Constitution had included the promise of local government amongst the principles of state policy, the introduction of Article 140A under the chapter titled ‘provincial powers’ provided a guarantee for its realisation.
Previously, this third tier of government had been most ardently invigorated during periods of military rule. As with Ayub and Zia, Musharraf had also installed an apparatus for local government under the Local Government Ordinances of 2001. Replicating the form of previous systems, elections were held on a non-party basis under the devolution plan. Because these military leaders intended this level of government to provide a vent for local grievances and to legitimate central governance, the system was in all cases created by the federal and not the provincial government. Musharraf’s plan went further than previous efforts in terms of devolving effective powers over service provisioning, including in the area of education. Greater fiscal control was also accorded in this structure of local governments. With Musharraf’s ouster from power and in the return to democratic rule, local government structures were also widely dismantled. Along with other reforms for devolution, the Eighteenth Amendment Act also provided a constitutional guarantee of local government in Article 140A: ‘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’.While in other cases the contest over demarcating constituencies for these elections led to delays, a public interest case pertaining to a disputed road-widening scheme in Lahore was amongst the catalysts in Punjab for the delivery of the promise of Article 140A. The Imrana Tiwana petition[454] alleged that the authorisation for the project, given by an unelected local development agency, was contrary to what the Constitution had provided.
Issues such as land use, water and sewage management have long been governed in Lahore, along with other large metropolitan areas, by such executive bodies that have delegated powers by their respective provincial governments. They have come to be seen as official channels for unjust land appropriation, key players in the fuelling of speculative land markets[455] and generally, administrators of a brand of corruption that forestalls rather than facilitates people’s access to basic governmental services.[456]The bench at the Lahore High Court accepted the argument that the new constitutional structure implied by Article 140A established a fence around the effective powers that local governments now possessed. Further, that the development agencies, as delegates of provincial powers, had necessarily to cede certain aspects of control to the elected local government. A strong case for an alternate model of local government was culled both from the reformed constitutional guarantees as well as by invoking international examples. Specifically, it was noted that the guarantee of local self-government provided in the Indian and South African constitutions invested local governments with core responsibilities. In total, this specific reform of the Eighteenth Amendment was seen as a way for reimaging federalism not simply as one of horizontal power-sharing, but one of integrative and vertical power-sharing between these tiers of government.
On appeal at the Supreme Court,[457] the interlocutory order granted against further construction of the project in dispute was vacated and a far more sparse definition of local government re-inscribed. Acting on the principle of minimalist intervention, the Supreme Court overturned the High Court’s nullifications; the Supreme Court did not see it necessary to vest this tier of government with inalienable powers into the future.
Across the country, the laws enacted to mandate local body elections have suggested an abidance of previous forms of paternalistic management and a deep distrust of grass-roots democracy and the associated notions of subsidiarity for law-making. For instance, in all of the provincial Acts, there is authorisation for the provincial government to remove the heads of local governments. However, while the Supreme Court has shown an unwillingness to safeguard any specific form or powers for local governments, it has been adamant about ensuring that the one Article 140A guarantee results in the establishment of a local tier of government, including for Islamabad, the federal capital.[458]