THE
PUNJAB LOCAL GOVERNMENT
ACT, 2022
[Act No. XXXIII of 2022]
An Act to reconstitute local governments in the Punjab and consolidate laws relating to powers and functions of the local governments.
It is expedient to reconstitute the local governments and consolidate laws relating to powers and functions of local governments for establishing an effective elected local government system for meaningful devolution of political, administrative and financial responsibility and authority to the directly elected representatives of the local governments as envisaged under Article 140A of the Constitution to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level; and to deal with ancillary matters.
Comments
As envisaged from the language of the preamble, the purpose of the Punjab Local Government Act, 2022 (Act XXXIII of 2022) is to establish an elected local government system under the command of Article 140A of the Constitution of Islamic Republic of Pakistan, 1973 and devolve political, administrative and financial responsibility and authority to the directly elected representatives of the local governments in order to promote good governance, effective delivery of public services and transparent decision with participation of residents of the local governments. It is important to note that the concept of devolution (decentralization) was for the first time introduced in the Punjab Local Government Ordinance, 2001. The Hon’ble Lahore High Court Lahore in the judgment reported as 2004 YLR 1856 Lahore in the case titled “Muhammad Ramzan and 3 others Vs. Government of Pakistan” vide paragraph 13 observed that the background for bringing of the Ordinance, 2001 was the feeling of the Government to give political power to the general public, by bringing down to their hands the administrative and financial authority to uproot the corruption, so that individuals of this country, sitting away from “Aiwan‑i –Iqtidar” may participate in development and built up of their own State. It had another been the aimed object, which flows from its preamble that a new simplified system of self‑running local governments by participation of neglected citizens to ensure welfare of the common man, with transparency of expenditure over development projects, curtailing wide range interference and fly over of funds from the upper level. In order to curb corruption and to achieve the aimed purpose, the Ordinance created different groups of elected persons, with their specified roles, rights and duties.
In another judgment of the Hon’ble Lahore High Court, Lahore reported as 2005 CLC 959 Lahore in the case titled “Afzal Mahmood Khan Vs. Station House Officer, Police Station Tibbi, Lahore”, it was observed that section 2 of the Punjab Local Government Ordinance, 2001, defines different words and expressions used frequently in the Ordinance. The inclusion of these words in section 2 and their definitions ascribed to them also indicate that the intention of the Punjab Local Government Ordinance, 2001 is to devolve political power downwards. Word Council means a Zila Council, Tehsil Council, Town Council, Union Council, Village Council and Neighbourhood Council, as given in section 2(vi). Similarly, in clause (vii) of section 2, word decentralized means conferment by the Government under this Ordinance of its administrative and financial authority for the operation, functioning and management of specified offices of the Provincial Government to the local governments. In clause (xvi) of section 2 (local government) includes a District Government or a City District Government of Zila Council; a Tehsil Municipal Administration and Tehsil Council; a Town Municipal Administration and Town Council; and Union Administration and Union Council. Section 12 provides for each local area: A District Government and a Zila Council in a District or a City District; Tehsil Municipal Administration and Tehsil Council in a Tehsil; Town Municipal Administration and Town Council in a Town; and Union Administration and Union Council in a Union. A combined reading of the above mentioned sections leads to a conclusion that devolution and decentralization of power is intended by the Ordinance and seeking the same different Councils and Administrations have been provided for each local area. And under the relevant sections already mentioned above, all of them are assigned different functions and vested with different powers.
The august Supreme Court of Pakistan in another judgment reported as 2013 SCMR 1629 in the case titled “Raja Rabnawaz vs. Federation of Pakistan through Secretary Defence and others” while discussing the importance of local government system in different countries of the World and concept of participation of the people in the conduct of public affairs and responsibilities of the local government being third tier of the Government in its role of self-local government in connection with devolution of powers, the Hon’ble Court held Government responsible for ensuring that the local government bodies elections as envisaged under the law must be held from time to time so that the representatives of the people are enabled to participate in managing their affairs at the gross root levels and the Fundamental Rights guaranteed under the Constitution are protected and enforced. Relevant paragraphs of the judgment are reproduced below:
“13. Local Government or Municipal Government is a form of public administration, which in a majority of contexts, exists as the lowest tier of administration within a given state or district. In many countries, it usually comprises the third tier of government, often with greater powers than higher-level administrative divisions. The question of municipal autonomy is a key question of public administration and governance. It is noteworthy that Local Governments generally act within powers delegated to them by legislation or directives of the higher level of government. The political analysts have always emphasized on the importance of local self-government. There are two principles underlining the establishment of Local bodies. Firstly, local bodies enjoy extensive powers to act in a way they like for the betterment of the community unless restricted by law in any sphere of activity. Secondly, local bodies cannot go beyond the specific functions delineated to them in various acts and statutes.
14. The concept of participation of ordinary people in the conduct of public affairs was advanced by the liberal philosopher John Stuart Mill as early as the mid-19th century. He considered the broad involvement of citizens to be the most effective guarantee of a well-functioning democratic polity, counterbalancing the threats posed by an overpowerful and interventionist state. In his view, the citizen’s opportunity to articulate his views and assert his rights afforded him the best protection against any abuse of these rights by the State.
15. In general, this tier of government is responsible for decision-making in those policy areas which have a direct impact on the lives of local citizens, e.g. urban regeneration, housing, schools, employment and social security, health, arts, culture and sport, local public transport, water and energy, and regional planning. These are the areas where the local citizens must have the opportunity to exert direct influence on policy-makers and thus participate in the decision-making process. Thus, local self-government not only has a legal and a political dimension, but it also has sociological connotations, namely, it directly affects community life within a demarcated locality. It is pertinent to mention here that in the developed democracies, local self- government has contributed substantially to social and economic development and the emergence of a civil society and its importance for democratic development has been recognized consistently all over the world.
16. It is important to bear in mind that local government is the most vital element in a democracy, though not generally recognized as such. Existence of local bodies is important for strengthening the process of democracy. In the recent years, local self-government has been playing a vital role in the establishment of good governance and community development. The local bodies, at one end, provide services to the local community and, on the other, act as an instrument of democratic self-government. The existence of local self-government provides mechanism for the enforcement of Fundamental Rights of the people. Such government bodies are helpful for development including education, health, social services as well as in improving, law and order situation. In short, the local self-government is necessary not only for strengthening democracy in country but also for securing good governance, which is essential to ensure the welfare of the citizens. This tier of government is always appreciated by the general public because it remains within their approach, as such they get involved in the decision making process.
17. All modern States have developed a system of self-governing local authorities. In many countries, the basic unit of local self-government is the municipality. Over the course of history, two types of self-governing units, namely, cities and municipalities have evolved at local level. The territorial boundaries of units of local self-government are defined by law. Local self-government is presumed to be in existence where a local government is established as a legal, corporate and political institution with decisionmaking powers. One of the main traits of local self-government is that there must be a representative body, a council or an assembly, directly elected by local citizens through elections, with budgetary autonomy and power to make legislation at local level. The brief of local government structure in various countries is given herein below:-
INDIA
In India the local government is the third level of government apart from the State and Central governments. There are two types of Local Government in operation; firstly, Panchayats in rural areas and Municipalities in urban areas. The Panchayats are a linked-system of local bodies with village panchayats (average population about 5,000), panchayat samities at the intermediate level (average population about 100,000), and district panchayats (average population about 1,000,000). The local government bodies are the democratic institutions at the basic level.
FRANCE
In France there are three main tiers of local administration; namely, the commune, department and region. These are both districts in which administrative decisions made at national level are carried out and local authorities with powers of their own. A local authority is a public-law corporation with its own name, territory, budget, employees, etc. and has specific powers and a certain degree of autonomy vis-a-vis central government. In addition, there are France’s overseas territories and regional bodies (collectivities territorials) with special status (Paris, Marseille, Lyon, Corsica, Mayotte and Saint-Pierre-et Miquelon).
JAPAN
Since the Meiji restoration, Japan has had a local government system based on prefectures. The national government oversees much of the country. Municipal governments were historical villages. There are 47 prefectures. They have two main responsibilities; one is mediation between national and municipal governments, and the other is area wide administration. Now mergers are common for cost effective administration.
TURKEY
Turkey has two levels of local government; provinces (iller) and districts (ilceler). The territory of Turkey is subdivided into 81 provinces for administrative purposes. The provinces are organized into 7 regions for census purposes; however, they do not represent an administrative structure. Each province is divided into districts, for a total of 923 districts.
SOUTH AFRICA
South Africa has a two tiered local government system comprising local municipalities which fall into district municipalities, and metropolitan municipalities which span both tiers of local government.
PAKISTAN
Local government is the third tier of government in Pakistan, after Federal Government and Provincial Government. There are three types of administrative unit of local government in Pakistan; namely, District Government Administrations, Town Municipal Administrations and Union Council Administrations. There are over five thousand local governments in Pakistan. After the promulgation of Local Government Ordinance, 2001, there established democratically elected local councils, each headed by a Nazim (Supervisor or Mayor). Some of the districts consisting of large metropolitan areas are called City Districts. A City District often contains subdivisions called Towns and Union Councils. As per local government laws, elections of union councils are to be held after every four years. District Governments also include a District Coordination Officer (DCO), who is a civil servant in-charge of all devolved departments. Currently, the Powers of Nazim are also held by the DCO.
18. Thus, in the light of the above, it is imperative upon the Government to ensure that the local government bodies elections as envisaged under the law must be held from time to time so that the representatives of the people are enabled to participate in managing their affairs at the gross root levels and the Fundamental Rights guaranteed under the Constitution are protected and enforced.”
The august Supreme Court of Pakistan in the judgment reported as 2015 SCMR 1739 in the case titled “Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others”, discussed in detail the extent and scope of introduction of Article 140A in the Constitution and vide paragraph 32 of the judgment it was observed that establishment of a system of Local Government is no longer a Principle of Policy. The Constitution mandates that 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 Government. The Court vide paragraph 54 further observed that the Province is under an obligation under Article 140A of the Constitution to establish, by law, a local government system and to devolve political, administrative and financial responsibility on the local government. Yet, in doing so it is not stripped bare of its executive and legislative authority under Articles 137 and 142 of the Constitution. The Provincial and the Local Governments are to act in a manner, which complements one another. The Constitution, therefore, envisages a process of participatory democracy, where the two governments act in harmony with one another to develop the Province. The authority of neither destroys the other. Article 140A cannot be used to make the provisions of Article 137 and 142 either subordinate to it or otiose. While discussing on the relationship between the local government and the Province (Government), the Hon’ble Court vide paragraphs 55, 58 and 59 observed that 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 all role in the progress, prosperity and development of the Province. The creation of a local government system does not spell the end of the Provincial Government in the Province. To the contrary it strengthens the Provincial Government by entrenching democracy at grass root level. This still leaves the question as to what is to be the scope of the political, administrative and financial authority to be conferred on the Local Governments. It is obvious that the conferment of all such authority on the Local Government would completely efface the Provincial Government within a Province and would violate Articles 137 and 142 of the Constitution. On the other hand, a complete failure to devolve any such authority would violate Article 140A of the Constitution. It is therefore clear that some meaningful political, administrative and financial authority must be devolved on the Local Governments. The extent of such devolution has to be between nothing and everything. The Constitution makers could have determined the scope of such devolution by enumerating Local Government powers within the Constitution itself. They chose, however, not to do so. The omission by the Constitution makers to specifically enumerate such powers was deliberate. They left the scope of such powers to be determined by each Province in accordance with the prevailing circumstances and political realities of the day. They acknowledged that the process must be initiated, yet were conscious of the fact that it has to be gradual. As Local Governments evolve, more and more powers would have to be devolved. Room was left for political experimentation, constitutional dialogue and growth. Instead of enumerating Local Government powers the Constitution makers left these to be worked out in harmony between the Provincial and Local Government. Why? Because they were conscious that political processes are evolutionary in nature. Institutions take root over time. They draw strength from a continuous constitutional dialogue between the people and their elected representatives. Implicit in this was also the recognition that the imposition of a ready-made model from the top often proves dysfunctional. It retards rather than accelerates political consensus. Much more stable is a model, which develops after mutual give and take over time. The progress of law, the development of political processes and the growth of institutions is often like the progress of a mountaineer: two steps forward, one step back. It may appear to be slow but patience is rewarded with stability.
