Signal-Free Expressway to the Kingdom?
If the argument is for establishing the Kingdom of Mian Sahib, the Younger, then go ahead and make the argument
The writer is a Lahore-based lawyer. The views expressed by the author are his own saroop.ijaz@tribune.com.pk
Public and private conversations in Pakistan have been reduced to obituaries. The sadness and the hopelessness are almost all consuming. Yet, life limps on. Intelligent, fearless and beautiful people are being gunned down and threatened. However, as we stumble on with our lives, there is another space that exists elsewhere, the present it seems has become many countries. A space of planned expressways and six-lane high speed, signal-free corridors for those who have the vehicles and freedom to whiz pass misery. Recently, the Lahore High Court (LHC) thwarted one such Dubai dream project.
The general question before the Court was regarding the procedure and desirability of building a proposed seven-kilometer signal-free corridor on Jail Road, Lahore. People took exception to the project for various reasons; environmental, development spending and about who is empowered to sanction and execute such a project. The last question is the most significant. It is not about any one road or flyover. This is about whether the provincial government (or by extension LDA, an agency reporting to the provincial government) can plan and build city roads, particularly when the provincial legislature has assigned that power to the Metropolitan Corporation through the Local Government Act of 2013. Simply put, this is about the powers of local governments and their place in the constitutional scheme of things.
The question before the LHC was a constitutional question (at least that is the question that the Court has excellently addressed in the short order) and was about whether the provincial governments have “controlling” authority over local governments or not, and the Court rightly answered in the negative. Hence, an arm of the provincial government, the LDA, cannot take over a local government function on the pretext that there is no local government yet (as a side note, this does not cover the provincial government in glory either)
With the role of elections and mandate is inescapable on the airwaves, consider this statement; the people of Lahore (Karachi and Peshawar) have no voice or vote in how their city is being governed. They have a nominal voice in how their province and their country are being governed (through the Provincial and National Assembly elections and one’s predilection regarding how representative the system is). Yet, when it comes to cities, towns and villages, even that formality of having a voice is denied.
The Punjab government is a representative example of putting ends before means. The means are the younger Mian Sahib and a bunch of bureaucrats, and the end is Dubai. The only minor problem in this model is the law (and related democratic norms). Article 140-A, originally introduced by General Musharraf and given constitutional protection through the Eighteenth Amendment mandates “(e)ach 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” . This alters the constitutional position of the local government radically from being an “aspiration” in the Principles of Policy (Article 32) previously. The Constitution envisages not only a system of local governments but functional, powerful and autonomous local governments with “political, administrative and financial responsibilities”.
The local governments in the post-Eighteenth Amendment constitutional scheme are not agents of the province but independent governments. Some friends and the Punjab government insist upon viewing this Court order and the underlying jurisprudence in “development” versus “legal nitpicking and idealistic fluff” framework. Very well, let us then hold younger Mian Sahib to his own articulated standards: “apart from consolidating democratic institutions and traditions at the federal and provincial level, the imperative of democratic governance can be fulfilled only through further decentralisation by devolving administrative and financial powers to elected representatives at district and lower levels”. This excerpt is from the 2013 PML-N election manifesto.
An argument for centralisation (or re-centralisation) of authority can plausibly be made, and if the argument for a Kingdom in Punjab is based on Mian Sahib’s stellar qualities, then by all means make it. However, the Punjab government and the PML-N are not making that argument. Nobody compelled the PML-N to insert the intention to have functional local governments in the 2013 manifesto. Similarly, if there was opposition to Article 140-A, it should have been articulated through a dissenting note, etc. There is a word for making agreements and promises that one has no intention of following up. This cannot be explained away by “realism” and “development”. Adherence to the manifesto might be optional in the PML-N groupthink; however, adherence to the Constitution is not.
In any event, the binary between “development” (construed narrowly as infrastructure) versus “democratic and legal values” is a fallacious one. Billions of rupees can be spent on projects which catch Mian Sahib and a cabal of bureaucrats’ fancy, particularly when the law and stated party policy is exactly the opposite.
The Punjab Local Government Act of 2013 falls well short of the constitutional requirement and the PML-N manifesto’s aspirations. The Local Government Act, instead of “further decentralisation” (PML-N manifesto 2013), quite substantially recentralises. However, that issue is for a future day (perhaps, quite near). For now, the question before the LHC was whether the Punjab government fulfilled the legal requirements of its own (Punjab Assembly with 80 per cent members) law, and quite evidently, the Punjab government was found wanting.
The cities need functioning systems for water, sanitation, zoning regulations and transport amongst many other issues and super Chief Ministers do not solve them, also the minor point of it being undemocratic and illegal.
There is another binary falsely created about “judicial activism” and the odd comparison with the inglorious days of the Chaudhry court. There are important and obvious distinctions. Firstly, this is not Suo Motu; petitioners approached the court regarding an infringement of fundamental right as opposed to the epiphanies of the Chaudhry court. Secondly, the delineation of powers of government falls squarely within the responsibilities of the court, a responsibility it discharged remarkably well in the Jail Road Signal Free Corridor. More power to the court. The analogy would have had merit only if the legally empowered forum (local government) had sanctioned the project following due processes and the Court thought it undesirable.
The Punjab government should use its limited resources and energies into setting up a local government administrative structure and reviewing the local government legislation and holding elections rather than fighting the wrong battle in the Supreme Court. Else, if the argument is for establishing the Kingdom of Mian Sahib, the Younger, then go ahead and make the argument. Just don’t try and oscillate between a “law-abiding democrat” and “realist” at will.
Published in The Express Tribune, May 3rd, 2015.
The general question before the Court was regarding the procedure and desirability of building a proposed seven-kilometer signal-free corridor on Jail Road, Lahore. People took exception to the project for various reasons; environmental, development spending and about who is empowered to sanction and execute such a project. The last question is the most significant. It is not about any one road or flyover. This is about whether the provincial government (or by extension LDA, an agency reporting to the provincial government) can plan and build city roads, particularly when the provincial legislature has assigned that power to the Metropolitan Corporation through the Local Government Act of 2013. Simply put, this is about the powers of local governments and their place in the constitutional scheme of things.
The question before the LHC was a constitutional question (at least that is the question that the Court has excellently addressed in the short order) and was about whether the provincial governments have “controlling” authority over local governments or not, and the Court rightly answered in the negative. Hence, an arm of the provincial government, the LDA, cannot take over a local government function on the pretext that there is no local government yet (as a side note, this does not cover the provincial government in glory either)
With the role of elections and mandate is inescapable on the airwaves, consider this statement; the people of Lahore (Karachi and Peshawar) have no voice or vote in how their city is being governed. They have a nominal voice in how their province and their country are being governed (through the Provincial and National Assembly elections and one’s predilection regarding how representative the system is). Yet, when it comes to cities, towns and villages, even that formality of having a voice is denied.
The Punjab government is a representative example of putting ends before means. The means are the younger Mian Sahib and a bunch of bureaucrats, and the end is Dubai. The only minor problem in this model is the law (and related democratic norms). Article 140-A, originally introduced by General Musharraf and given constitutional protection through the Eighteenth Amendment mandates “(e)ach 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” . This alters the constitutional position of the local government radically from being an “aspiration” in the Principles of Policy (Article 32) previously. The Constitution envisages not only a system of local governments but functional, powerful and autonomous local governments with “political, administrative and financial responsibilities”.
The local governments in the post-Eighteenth Amendment constitutional scheme are not agents of the province but independent governments. Some friends and the Punjab government insist upon viewing this Court order and the underlying jurisprudence in “development” versus “legal nitpicking and idealistic fluff” framework. Very well, let us then hold younger Mian Sahib to his own articulated standards: “apart from consolidating democratic institutions and traditions at the federal and provincial level, the imperative of democratic governance can be fulfilled only through further decentralisation by devolving administrative and financial powers to elected representatives at district and lower levels”. This excerpt is from the 2013 PML-N election manifesto.
An argument for centralisation (or re-centralisation) of authority can plausibly be made, and if the argument for a Kingdom in Punjab is based on Mian Sahib’s stellar qualities, then by all means make it. However, the Punjab government and the PML-N are not making that argument. Nobody compelled the PML-N to insert the intention to have functional local governments in the 2013 manifesto. Similarly, if there was opposition to Article 140-A, it should have been articulated through a dissenting note, etc. There is a word for making agreements and promises that one has no intention of following up. This cannot be explained away by “realism” and “development”. Adherence to the manifesto might be optional in the PML-N groupthink; however, adherence to the Constitution is not.
In any event, the binary between “development” (construed narrowly as infrastructure) versus “democratic and legal values” is a fallacious one. Billions of rupees can be spent on projects which catch Mian Sahib and a cabal of bureaucrats’ fancy, particularly when the law and stated party policy is exactly the opposite.
The Punjab Local Government Act of 2013 falls well short of the constitutional requirement and the PML-N manifesto’s aspirations. The Local Government Act, instead of “further decentralisation” (PML-N manifesto 2013), quite substantially recentralises. However, that issue is for a future day (perhaps, quite near). For now, the question before the LHC was whether the Punjab government fulfilled the legal requirements of its own (Punjab Assembly with 80 per cent members) law, and quite evidently, the Punjab government was found wanting.
The cities need functioning systems for water, sanitation, zoning regulations and transport amongst many other issues and super Chief Ministers do not solve them, also the minor point of it being undemocratic and illegal.
There is another binary falsely created about “judicial activism” and the odd comparison with the inglorious days of the Chaudhry court. There are important and obvious distinctions. Firstly, this is not Suo Motu; petitioners approached the court regarding an infringement of fundamental right as opposed to the epiphanies of the Chaudhry court. Secondly, the delineation of powers of government falls squarely within the responsibilities of the court, a responsibility it discharged remarkably well in the Jail Road Signal Free Corridor. More power to the court. The analogy would have had merit only if the legally empowered forum (local government) had sanctioned the project following due processes and the Court thought it undesirable.
The Punjab government should use its limited resources and energies into setting up a local government administrative structure and reviewing the local government legislation and holding elections rather than fighting the wrong battle in the Supreme Court. Else, if the argument is for establishing the Kingdom of Mian Sahib, the Younger, then go ahead and make the argument. Just don’t try and oscillate between a “law-abiding democrat” and “realist” at will.
Published in The Express Tribune, May 3rd, 2015.