Constitutional Basis of
Local Government in Pakistan
There is growing evidence to show the link between development and local government. Once again, the Covid crisis underlined the need for local government; it showed that non-traditional security threats had to be addressed by strengthening the governance and institutional structures. Almost whole of Pakistan witnessed orders of executive civilian officers for lockdowns with little or no community ownership and poor level of enforcement. The enforcement was essentially criminal in nature and required coercive actions on the part of local police. The community-led lockdowns involving government support were not witnessed at all. In this context, there is good case to study the relationship between local government and the Constitution of Pakistan. This write-up will try to briefly trace the constitutional basis of local government system in topical manner.
- British-Era Colonial Rule to Self-Rule
After the War of Independence, 1857, British exerted tight controls on Indians. In 1861, the British Parliament passed a law called the Indian Councils Act, 1861, which partially allowed unelected local representation in governance. Thereafter, in 1906, when the Liberal Party formed government in Britain, and in response to agitation in British India, a new law was enacted in 1909. The law was titled as the Indian Councils Act, 1909, and was the result of reforms proposed by John Morley, the then Secretary of State for India, and Lord Minto, the British viceroy of India (1905–10). The reforms proposed by the two are famously styled as Minto-Morley Reforms in the textbooks in Pakistan. The 1909 law provided for ‘elected’ representation, which was an improvement on 1861 law, which had provided for an ‘unelected’ representation. The 1909 law broke the ground inasmuch as self-governance is concerned. The Government of India Act, 1919, took it further, which was no better but from the viewpoint of incremental improvement, it did provide some space. The King of England, at this occasion, issued a proclamation, which summed up the constitutional history of transfer of power to its rightful recipients, the Indians.
“The Acts of 1773 and 1784 were designed to establish a regular system of administration and justice under the Honourable East India Company. The Act of 1833 opened the door for Indians to public office and employment. The Act of 1858 transferred the administration from the Company to the Crown and laid the foundations of public life which exists in India today. The Act of 1861 sowed the seed of representative institutions, and the seed was quickened into life by the Act of 1909. The Act which has now become law entrusts the elected representative of the people with a definite share in the Government and points the way to full responsible Government hereafter.”
The principle of ‘full responsible’ government was, therefore, constitutionally introduced by the Government of India Act, 1919. Since the Act of 1919 was complete eyewash, therefore, fathoming the increasing indignation for themselves in Indians about their sham acts, the law provided for a statutory commission to be set up after 10 years to further review the law. Accordingly, the year 1929 witnessed the arrival of Simon Commission to British India. The Simon Commission produced two-volume report, which was largely rejected by the Indians. However, the report was used to draft the Government of India Act, 1935. As proposed by the Simon Commission, the Act of 1935 abolished diarchy of 1919 law and also provided for the concept of Federation for British India, leading to the supplementary concept of provincial autonomy. Section 311 of the 1935 Act provided for a definition of ‘Local Government’, which essentially meant regional/provincial governments in the context of the Act. Besides, this Act referred to municipalities and laws of local government as were applicable in Madras and cantonment areas. The right to self-determination further emanated out of the principle of self-government and became the basis of decolonization in the post-Second World War era.
- Self-Rule to Local Government
- 1956 Constitution
Decentralization was not envisioned by the 1956 Constitution. It divided the legislative business into three legislative lists: federal, concurrent and provincial. It enlisted local government as item 15 on the Provincial List for legislation.
- 1962 Constitution
The 1962 Constitution provided constitutional linkage to law of local government. The linkage was developed to imbibe perception of legitimacy for President as the local government bodies (basic democracies established under the Basic Democracies Order, 1959) were to act as Electoral College for the office of the President. This arrangement also necessitated constitutional protection of Basic Democracies Order, 1959, in the Fourth Schedule to the Constitution read with Article 6(3)(ii). The concept of local government was driven more by desire to gain political legitimacy than to serve the people and to empower them.
- 1973 Constitution
Articles 32 and 37(i) of the original 1973 Constitution provided for non-binding constitutional obligations on the state to ‘decentralize’ the administration. The provincial local government laws were, thus, promulgated on the basis of the constitutional law. The local government system, however, could not take roots in the country due to political and administrative reasons. In 2000, Musharraf Government rolled out a Local Government Proposed Plan, and later in line with the Plan, the local government ordinances for the provinces were promulgated in 2001. Musharraf Government protected the local government laws promulgated by it through the Chief Executive Order. No. 24 of Legal Framework Order, 2002 (LFO, 2002). The LFO, 2002 was then shielded through 17th Constitutional Amendment that provided temporal protection to the local government laws by amending Article 268 of the Constitution. Thereafter, in 2010, through 18th Constitutional Amendment binding constitutional provisions requiring the provincial governments to ‘devolve’ administrative, financial and political responsibilities were added. It also mandated the Election Commission of Pakistan to carry out local government elections. As of 2020, the provincial legislation based on the constitutional provisions has been introduced in all the provinces. The provincial legislations are complex and have yet to realize implementation.
The Way Forward
The difficult part of devolution is its institutionalization and sharing of resources, both equally and equitably. For a country of Pakistan’s size, local government system must be introduced to ensure that people are served at the grassroots level. The comparative study of the provincial legislations dealing with local government systems must be carried out to collect data that can be used to enable decision-makers to develop policy choices based on evidence.