Governance through ordinance – Prism

Earlier this year, the government led by Buzdar in Punjab dissolved all elected local governments in the province, in the middle of the five-year period guaranteed by the relevant law.

The dissolution was made through the Local Government Law of Punjab, 2019, according to which around 58,000 dismissed counselors have been replaced by a handful of bureaucrats.

Apparently, the new legislation aims to achieve far-reaching changes in local government; However, given that local governments in Punjab were dominated by councilors affiliated with the Pakistan Nawaz Muslim League, the main reason for the dissolution is not difficult to identify. New elections have been promised within a year, but it should be noted that the new legislation does not contain any deadlines in this regard.

The radical measure can be seen as a serious setback for institutional development and grassroots democracy in the province. As expected, premature dissolution has been challenged before the High Court of Lahore (LHC) by certain dismissed councilors. The petitions, which are currently under trial, raise several important questions regarding the constitutional position of local governments and the powers of provincial governments to end elected councils.

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To appreciate the problems involved, it is necessary to start with Article 140-A of the Constitution, which was first introduced in 2001 and states the following: "Each Province, by law, will establish a local government system and delegate policies, responsibility administrative and financial and authority before the elected representatives of local governments. "

The petitioners' challenge before the LHC revolves around Article 140-A and can be summarized as follows. First, Article 140-A, for the first time, forced the provinces to establish local government systems. Previously, the Constitution stipulated that the state would "encourage" local government institutions, but failed to impose a constitutional obligation to guarantee the creation of such institutions.

In addition, the words used in Article 140-A are "local government" rather than "local agencies," which was the term used in the previous legislation. According to the petitioners, this demonstrates the intention of the editors of the Constitution to make Pakistan a three-tier federation with local governments 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 parliament does not have the power to eliminate or dissolve provincial governments under the Constitution, provincial governments do not have the power to eliminate elected local governments.

Second, the word used in Article 140-A is "delegate" instead of "delegate" or "confer." While delegated or conferred authority can be removed, the petitioners contend that "return" implies an irreversible transfer of power. To support this argument, reference is made to other cases in which the word "return" is used in the Constitution to refer to the irreversible transfer of rights. Therefore, any attempt to snatch delegated power is ultra vires the Constitution and should be shot down by the LHC.

The response of the Punjab government is likely to focus on the fact that there is no express prohibition contained in the Constitution regarding the dissolution of local governments. The Punjab government can also argue that, in fact, it is following the mandate and requirements of Article 140-A by introducing a more adequate and better form of local government through new legislation.

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Whatever the final destination of the petitions (and it is likely that the matter will eventually end up in the Supreme Court), this development illustrates an underlying malaise, that is, a lack of due respect on the part of the government for participatory decision making and The chosen institutions.

Another recent manifestation of this attitude, this time by the federal government led by the same party, is the agitation of legislation by ordinances, which led the Supreme Court in a recent case to observe that parliament should be closed if laws were enacted. ordinances

It is true that the Constitution allows laws to be enacted 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 convinced that there are circumstances that make it necessary to take immediate action.

In other words, there must be extraordinary circumstances to justify legislation through ordinances, which must then be presented to Parliament in the manner provided for in article 89.

According to the Institute of Legislative Development and Transparency of Pakistan, legislation made through presidential ordinances between August 2018 and August 2019 was equal in quantity to the legislation made by parliament during the same period. This shows that legislation by ordinance is common for the government rather than being a measure of last resort in exceptional cases.

It seems, and the Prime Minister himself declared so much in December of last year, that because Pakistan Tehreek-i-Insaf did not order a majority in the Senate, the government has been introducing legislation through ordinances.

Omitting parliament in this way is not a good omen for the democratic project and amounts to the usurpation of parliamentary power. To strengthen parliament, the government must commit to the opposition and ensure that the legislation is passed after due debate and consideration, including debate in the Senate, which is the federation representative.

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

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