Local governments are part of state, third tier of govt: SC

Apex court says dissolution of local bodies means disenfranchisement of people


Hasnaat Malik July 06, 2021
PHOTO: AFP/FILE

ISLAMABAD:

The top court has issued its detailed judgment in a case regarding restoration of local governments (LGs) in Punjab and noted that dissolution of the LGs disenfranchises the people, who vote local representatives into power.

"The trampling of elected LGs, which has come with its mandate and with promise to the people of their constituencies, cannot be dissolved by Section 3 of the [Punjab LG] Act of 2019, for it is in direct conflict with Articles 17 read with Articles 140A, 7 and 32 of the Constitution," said an 18-page judgment.

The judgment was authored by Chief Justice of Pakistan Gulzar Ahmed, who was presiding over a three-judge bench hearing a slew of petitions for restoration of more than 55,000 LG representatives in the Punjab. The court issued its short order on March 25.

The PTI led Punjab government had dissolved the LG system in the province in May 2019, years before expiry of its term. The LGs in Punjab were set to conclude their term on December 31, 2021.

The detailed ruling held that section 3 of the LG Act of 2019 – introduced by the PTI led provincial government – is ultra vires the Constitution. “Consequently, the LGs shall complete their term in accordance with law.”

It said there is no cavil to the proposition that provincial legislation – the Punjab Assembly – is competent to make law and the LG Act of 2019 has been made by a competent legislation.

“The difficulty is only with regard to Section 3 of the Act, where it brings about total dissolution of the LGs in Punjab and all elected representatives are sent home packing without allowing them to complete their term of office, which otherwise was allowed to them under the Act of 2013.”

It said the LG Act of 2013 provided for law for removal of elected representatives from their offices and reasons and procedure for it was also provided but the provision for the very dissolution of the LGs as contained in Section 126 was omitted by the Punjab Local Government (Amendment) Act, 2017."

It said the very power of dissolving the LGs was not possessed by the province in the Act of 2013. Section 233 of the Act of 2019 makes provision for suspension or dissolution of a LG and it provides for giving reasons by the government, and manner and procedure to be adopted for this purpose.

Also read: Top court restores Punjab local governments

“This very section itself admits and recognizes that the LGs cannot be suspended or dissolved on mere desire of the province,” it added.

The court noted that Article 17 enjoins upon the citizens right to form associations, unions, or form or be a member of a political party. This is a fundamental right given to the citizen by the Constitution.

The right to form or be a member of a political party nurtures in itself principles of democracy and liberties, which inheres in itself establishment of a popular government at the level of the state.

Thus, the right to form or be a member of a political party inherently implies the right to form or be a member of a political party and to contest elections and in succeeding such elections, to hold elected office for a duration provided by law.

“Therefore, the LG system established under Article 140A of the Constitution through provincial legislation, when translates into an elected LG for a specified period of time by law, cannot be dissolved before the period of its expiry, as such action will directly come in conflict with Article 17 of the Constitution read with Articles 140A, 7 and 32 of the Constitution,” said the judgment.

The court said Article 140A of the Constitution has mandated each province by law to establish a LG system. This is a mandatory provision, which every province has to implement.

“In Article 7 of the Constitution, the term ‘state’ has been defined as Federal Government, Majlis-e-Shoora (Parliament) a Provincial Government, a Provincial Assembly and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess.

“By this very definition of the term state, the LG has been given status of a state and apparently, it is a third tier of government in the federation of Pakistan.

“Article 17 of the Constitution provides for Freedom of Association and gives rights to every citizen to form associations, unions, or form or be a member of a political party.

"Further, Article 32 of the Constitution is part of a Principles of Policy of the State and it provides that the State shall encourage LG institutions composed of elected representatives of the area concerned and in such institutions, special representation will be given to peasants, workers and women, in the establishment of the local government system by law.

“Thus, Article 140A read with Articles 7, 17 and 32 are complementary to each other and work as a synthesis for the establishment and functioning of the LGs.

"Article 32 of the Constitution, as part of Principles of Policy, although is not enforceable by court nor can it be made basis alone for adjudging any law to be void but in making law, the state is required to be guided by the directives of the Principles of Policy…

“[It means the state] has to ensure that these directives of Principles of Policy are duly reflected in making of law, for these Principles of Policy are the pronounced objectives of the State for the socio-economic development of the citizens for the ultimate establishment of an egalitarian society.

“These directives Principles of Policy of the State have a place in overall working of the state, and all acts of the state organs and the functionaries of the state have to be in consonance with these directives of the Principles of Policy. No inconsistency in this regard can be made by the State or State Organs in performance of its functions," the judgment said.

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