Local Government system

2023 CLC 219 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art.140-A [as inserted by Constitution (Eighteenth Amendment) Act (X of 2010)]Local Government SystemScope

After insertion of Art.140-A in the Constitution, obligation under Constitutional policy has turned into an inalienable Constitutional duty.

2015 PLD 522 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 140ALocal Government systemMeaning, significance and autonomyTerm "Local Government" literally meant management of the local affairs by the people of the locality

System of local government was based on the principle that the local problems and needs could best be addressed by the people of the locality rather than by central or State governments

Local government was a prime element of democracy and demonstrated the intrinsic values of democracy, irrespective of the services it provided

Government was truly representative when all types of people could take part

Local government level offered the closest thing to widespread consultation and participation

On a political dimension, the operational freedom to fulfil local needs and aspirations with necessary popular mandate was the hallmark of local government, it was thus a variant of democracy

Creation of the third tier of government (i.e. Local Government) based on constitutional directive to devolve political, administrative and financial responsibility and authority to the elected representatives of the local government promoted Pakistan's constitutional vision of a federalist State

Political significance of a local government was further underlined when under Art.140A(2) of the Constitution, which commanded that the elections to the local government, like the national and provincial assemblies, shall be held by the Election Commission of Pakistan

Electoral recognition added constitutional weightage to the political importance of the local government and firmly established local government as a third tier of government in Pakistan's political landscape

Without a clear vesting of certain core functions with the local government it would be unable to play its role for democracy to deepen, for diverse opinions and legitimate interests to be taken into account, for service delivery to be closer to and held accountable by the people, for institutions to build capacity and expertise etc.

Local government institutions had to be empowered and given definite functions; they were not envisioned by Art. 140A of the Constitution to be an agent or an underling of provincial governments but a distinct and empowered third tier of elected governance.

2015 PLD 522 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 140ALocal Government system

History and features of Local Government systems in foreign jurisdictions (India and South Africa) traced.

2015 PLD 522 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art.140ALocal Government systemDecentralization of powersModes of decentralizationDeconcentration, Delegation and DevolutionMeaning and distinction

Deconcentration was the shallowest form of decentralization and the least ambitious level of decentralization, where responsibilities were transferred to an administrative unit of the central government that was spatially closer to the population where service was to be provided, usually a field or regional office

Delegation was an intermediate level of decentralization, where some authority and responsibilities were transferred to a lower level of government, but there was a principal-agent relationship between the central and sub-national government in question, with the agent remaining accountable to the principal

Devolution was the deepest form and most ambitious form of decentralization, where the central government devolved responsibility, authority, and accountability to sub-national governments with some degree of political autonomy.

2015 PLD 522 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Arts. 140A, 2A, 9, 14 & 17(2)Local Government systemDevolution of powers from Provincial to Local GovernmentAutonomy of Local GovernmentScopeDilution/restriction of powers of Local GovernmentEffectDevolution signified transfer of power from the provincial government to the local government

Scope and nature of power, the "core functions," to be transferred could be by the Constitution itself or left to the discretion of the provincial legislature

Complying with the constitutional mandate under Art.140A of the Constitution, once the trinitarian devolution i.e., political, administrative and financial, took place, the elected local government enjoyed the autonomy and independence to exercise such powers to the exclusion of other executive functionaries

Any interference or dilution of such power by the provincial government or any other authority, without there being any change in the legislative design, which drew its power under Art.140A, would render a democratically elected local government totally otiose

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

Any provincial law that thwarted or restricted the elected local government from performing its functions under the law offended Art.17(2) of the Constitution

When clearly delineated devolved powers of the local government were in any manner abridged, diluted or impeded by the provincial government or through its instrumentalities, it offended the fundamental rights to life, dignity and political participation besides offending constitutional principles of political, economic and social justice guaranteed to the citizens under the Objectives Resolution

Article 140A of the Constitution suggested that the assignment of functions to the local tier remained the prerogative of the provincial legislature subject to the limitation that local tier could not be stripped off a core bundle of functions over which it was empowered to exercise self-government

Diluting the core bundle beyond a minimum threshold through centralization was tantamount to stripping local governments of their basic functionality as a tier of government

While local government legislation came under the purview of the provincial legislature, but it did not make provincial governments the "controlling authority" of local governments

Although local governments would have to function within the substantive framework established by the provincial legislature, but any such framework established by the provincial legislature had to conform to Art. 140A of the Constitution, and, hence, devolve a meaningful set of core local functions to comply with Art. 140A of the Constitution

Provincial legislatures had to ensure that local governments had been provided a meaningful core bundle of functions on which provincial departments did not have overlapping jurisdictions

Failure to do so would limit the local governments' ability to act as institutions of self-government, which was not consistent with Art. 140A of the Constitution.

2015 PLD 522 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art.140ALocal Government systemDecentralization of powersAdministrative, fiscal and political decentralizationMeaningLocal Government system was established and empowered through the process of decentralization

Logic behind decentralization was not just about weakening the central authority, nor was it about preferring local elites to central authority, but it was fundamentally about making governance at the local level more responsive to the felt needs of the large majority of the population

Different dimensions of decentralization were; administrative decentralization- how responsibilities and authorities for policies and decisions were shared between levels of government and how these were tuned into allocative outcomes; fiscal decentralization - the assignment of expenditures, revenues and borrowing amongst different levels of governments; political decentralization - how the voice of citizens was integrated into policy decisions and how civil society could hold authorities and officials accountable at different levels of government.

2015 CLD 983 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 140ALocal Government system

History and features of Local Government systems in foreign jurisdictions (India and South Africa) traced.

2015 CLD 983 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art.140ALocal Government systemDecentralization of powersAdministrative, fiscal and political decentralizationMeaningLocal Government system was established and empowered through the process of decentralization

Logic behind decentralization was not just about weakening the central authority, nor was it about preferring local elites to central authority, but it was fundamentally about making governance at the local level more responsive to the felt needs of the large majority of the population

Different dimensions of decentralization were; administrative decentralization - how responsibilities and authorities for policies and decisions were shared between levels of government and how these were tuned into allocative outcomes; fiscal decentralization - the assignment of expenditures, revenues and borrowing amongst different levels of governments; political decentralization - how the voice of citizens was integrated into policy decisions and how civil society could hold authorities and officials accountable at different levels of government.

2015 CLD 983 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Art. 140ALocal Government systemMeaning, significance and autonomyTerm "Local Government" literally meant management of the local affairs by the people of the locality

System of local government was based on the principle that the local problems and needs could best be addressed by the people of the locality rather than by central or State governments

Local government was a prime element of democracy and demonstrated the intrinsic values of democracy, irrespective of the services it provided

Government was truly representative when all types of people could take part

Local government level offered the closest thing to widespread consultation and participation

On a political dimension, the operational freedom to fulfil local needs and aspirations with necessary popular mandate was the hallmark of local government, it was thus a variant of democracy

Creation of the third tier of government (i.e. Local Government) based on constitutional directive to devolve political, administrative and financial responsibility and authority to the elected representatives of the local government promoted Pakistan's constitutional vision of a federalist State

Political significance of a local government was further underlined when under Art.140A(2) of the Constitution, which commanded that the elections to the local government, like the national and provincial assemblies, shall be held by the Election Commission of Pakistan

Electoral recognition added constitutional weightage to the political importance of the local government and firmly established local government as a third tier of government in Pakistan's political landscape

Without a clear vesting of certain core functions with the local government it would be unable to play its role, for democracy to deepen, for diverse opinions and legitimate interests to be taken into account, for service delivery to be closer to and held accountable by the people, for institutions to build capacity and expertise etc.

Local government institutions had to be empowered and given definite functions; they were not envisioned by Art. 140A of the Constitution to be an agent or an underling of provincial governments but a distinct and empowered third tier of elected governance.

2014 SCMR 101 SUPREME-COURT Judicial Precedent

Arts. 32 & 140-ALocal Government systemDuty of Federation and ProvincesScope

Provincial and Federal Governments had the duty to ensure holding of local bodies system and devolve political, administrative and financial responsibility and the authority to elected representatives of local bodies, thus no departure was possible from constitutional provisions nor any concession could be extended for its enforcement.