The top court has declared that any attempt by a provincial government to make the local governments powerless will not be countenanced by the court, which will strike down such legislations.
“If a provincial government oversteps its legislative or executive authority to make the local government powerless then such exercise will fall foul of Article 140-A of the Constitution and an excessive or abusive exercise of such authority will not be countenanced by the court,” said the Supreme Court in its detailed order on Lahore Development Authority (LDA) case, issued on Thursday.
The order, authored by Justice Mian Saqib Nisar, observed that some meaningful political, administrative and financial authority must be devolved to the local governments.
“The creation of a local government system and the conferment upon the local government of certain political, administrative and financial responsibilities does not deprive the province of authority over its citizens and deny it a role in the progress, prosperity and development of the province,” said the order.
It said the local government system did not spell the end of the provincial government in the province. To the contrary it strengthens the provincial government by entrenching democracy at grass roots level, it said.
The order further said that once a provincial government has enacted a statute devolving certain basic functions on the local government it loses its powers to amend the provincial law.
“These provisions become unamendable. These functions cannot be abridged or curtailed. They can only be expanded. The constitutionally conferred legislative authority of the provincial assembly to amend the law, with regard to local government can only be exercised to enhance and not to curtail the functions of the local government,” it noted.
The court further stated that the Constitutions must be interpreted with an eye to the future as these are living documents, adding that the future may throw up issues which require legislative intervention.
“The functions and responsibilities of the local and provincial governments may require further articulation. This court cannot today rule that irrespective of the circumstances, which may compel such modification or the political realities of the day that may require a re-think, the province would have no legislative authority in the matter,” it said.
It further stated that instead of enumerating local government powers the Constitution makers left these to be worked out in harmony between the provincial and local government because they were conscious that political processes are evolutionary in nature.
The court also recommends that judges should be wary of rushing in where Constitution makers hesitated to tread. “The line will emerge gradually with time. It will be made apparent by a constant process of give and take at various levels between the two elected government and between the elected representatives and their constituents,” it said.
The order said the power to strike down or declare a legislative enactment, however, has to be exercised with a great deal of care and caution. “This power is exercised not because the judiciary is an institution superior to the legislature or the executive but because it is bound by its oath to uphold, preserve and protect the Constitution. It must enforce the Constitution as the supreme law but this duty must be performed with due care and caution and only when there is no other alternative,” it said.
Meanwhile, the court also observed that the Punjab government has failed to constitute advisory committees under Pakistan Environment Protection Act (PEPA) 1997. It asked the provincial government to constitute such committees within 45 days.
Published in The Express Tribune, September 11th, 2015.