Daily Times

The Supreme Court (SC), in its recent separate but identical judgments on local government elections in Punjab and Sindh, has declared that provisions of provincial laws related to delimitation of constituencies by provincial authorities are in violation of the constitution. The court said the power to hold elections for the local government stands vested with the Election Commission of Pakistan (ECP) and making delimitations was part of the same process. While declaring provincial laws to the extent to which they empower the provincial authorities to make delimitations of local government constituencies as unconstitutional and void, the court asked the federal and provincial legislatures to amend the relevant articles and laws to empower the ECP to make the delimitations.

Up until the enactment of the 18th constitutional amendment, the elections for local government were conducted by provincial election authorities established by provincial governments under provincial laws. These provincially constituted authorities used to make arrangements for a whole spectrum of local government elections right from delimitation of the constituencies to the conduct of polling, compilation of results and any appeal against the same. However, under the 18th constitutional amendment, unanimously passed in 2010, article 241-A and 219 of the constitution were amended to entrust the ECP with holding local government elections. Of course the ECP has been doing the same job with regard to elections for the houses of parliament, provincial assemblies and the office of president. Though various articles of the constitution, including article 241-A, 218 and 219, unambiguously state that holding local government elections is the duty of the ECP, the provincial governments, while making local government laws, provided for delimitation of constituencies by provincial authorities.

The delimitation of constituencies is the cornerstone of the whole electoral process. Any unfair conduct during delimitation puts a question mark on the fairness of the whole process. Unfair adjustment of constituencies to favour one individual or group and negatively impact another is an old practice, called ‘gerrymandering’, used to manipulate elections. In all democracies special measures have been formulated over the last 100 or so years to curb such unfair practices. Leaving delimitation of constituencies with the provincial governments would have given disproportionate advantage to the ruling parties in the provinces to gerrymander constituencies to the disadvantage of their opponents. The SC’s decision is thus in line with constitutional provisions and democratic practices. It is anyway natural that the ECP, having experience in delimiting constituencies and an independent status, should be doing this important job. In its decisions, the court has also rightly pointed out that delay in holding of local government elections is a violation of constitutional command.

Local government is universally regarded as a crucial part of the democratisation process. It allows the people in general to participate in the decision making process. A political system without an efficient, effective and working local government system cannot be considered complete, let alone democratic. Besides giving people the opportunity to be involved in decision making and governance at the local level, the local government system plays another important role. It serves as a nursery to nurture national leadership. Historically, local government institutions along with student unions have played an important role in training politicians who went on to serve at the provincial and national levels. Unfortunately, the student unions have not been restored since Ziaul Haq banned them in 1984. Local government too has been working in fits and starts. It was unfortunate though that these institutions have been generally run during military dictatorships — not due to any dictator’s love for democracy but to provide legitimacy — while they were mostly dormant during democratic intervals of government. Article 32 of the constitution as it was enacted in 1973 provides that, “The state shall encourage local government institutions composed of elected representatives of the areas concerned.” The same was said in the ‘principles of policy’ contained in part II chapter II of the constitution, which is not binding on the state and means it cannot be enforced through a court of law. Though not binding, the principles of policy are the state’s promises to its people, considered more sacrosanct in violation than confirmation.

It was only a military ruler, Pervez Musharraf, who in 2002 inserted Article 141-A into the constitution. The Article, which unlike Article 32 is enforceable through the courts, provides: “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.” It is this Article that allowed the SC to rule that the delay in holding the local government elections for the last so many years was a violation of the constitution. Though the court has ruled for the constitutional necessity for holding of local government elections and establishing local government institutions, it has failed to touch another aspect of the whole affair: the powers of these institutions. Article 141-A says, “Each province shall…devolve political administrative and financial responsibility and authority to the elected representatives of the local government.” The laws so far enacted by the provincial governments have failed to devolve those powers mentioned in the Articles. In fact, reading of these laws makes it abundantly clear that the parties ruling the provinces do not want local government institutions. In case they are forced by the courts to hold local elections, they will not give local government any substantive power.

Here it will be important for civil society, political workers and the media to supplement the work done by the courts and press on political parties, parliament and the provincial assemblies to provide for an effective, efficient and responsible local government system in the country. It will be important to work for the provision of more effective constitutional guarantees for the establishment of a local government system along the lines of the Indian constitution. Only such guarantees can ensure a truly democratic local government system in the country.

The writer is a freelance columnist